Justice Solomon continued in relevant part: Comparison of the PCR petition and new trial motion standards reveals that, although the trial court incorrectly categorized defendant’s motion as a second PCR petition, the motion must fail because defendant cannot satisfy the “reasonable diligence” requirement common to both motions. Nor has defendant made any showing that discovery should be granted in the interest of justice because a record of the hypothetical interview might constitute exculpatory evidence. Courts would not require a person who is probably innocent to languish in prison because the exculpatory evidence was discoverable and overlooked, but a post-conviction request for even purported Brady materials must make a threshold showing that the requested materials are, in fact, Brady materials. Here, defendant has not made the requisite showing that the requested material should be considered as Brady material.
Under the unusual circumstances presented here, the Court finds defendant’s failure to satisfy the requirements of Rule 3:20-2 — the motion in support of a new trial that would be the ultimate use to which any interview-related discovery would be put — sufficient to resolve the matter. There is no freestanding right to post-verdict discovery under the Court Rules, and so analysis of any motion for such discovery must therefore necessarily consider the proposed use to which the discovery would be put. If it is impossible for defendant to prevail on his ultimate claim for relief — even should the requested discovery prove favorable to his cause — then there is no need to separately analyze the discovery request, as the Court of Appeals for the Tenth Circuit held in United States v. Silva-Arzeta, 602 F.3d 1208, 1218-19 (10th Cir. 2010).
Here we see additionally circular reasoning from the majority, this time grounded in long-standing precedent concerning discovery. Our courts have routinely denied discovery requests based on failures to demonstrate that the discovery is exculpatory. Without disclosure of the discovery, it is impossible to analyze it to determine whether it is exculpatory.
