The sought-after affidavit is physical evidence of the crimes of witness tampering and kidnapping for which defendant and others have been charged. It is therefore subject to reciprocal discovery under Rule 3:3-13(b)(2)(B) and (D). Rule 3:13-3 codifies New Jersey’s open-file approach to pretrial discovery in criminal matters post-indictment. Although a defendant has a right to automatic and broad discovery of the evidence the State has gathered in support of its charges upon the issuance of an indictment, the Rule also places the onus on defense counsel to supply the prosecution with broad categories of items. This is often referred to as the “reciprocal discovery” rule or process. Under Rule 3:13-3(b)(2)(B) and (D), respectively, a defendant must provide the State with materials including “any relevant books, papers, or documents, including “writings,” that are “within the possession, custody or control of defense counsel,” as well as with “written statements, if any, made by any witnesses whom the State may call as a witness at trial.” Significantly, the Rule “does not require discovery of a party’s work product consisting of internal reports, memoranda or documents made by that party or the party’s attorney or agents, in connection with the investigation, prosecution or defense of the matter.” R. 3:13-3(d) (emphases added).
Beyond the Rule’s own exception, constitutional guarantees may bar compelling disclosure of certain materials in certain situations. The right against self-incrimination applies when the accused is compelled to make a testimonial communication that is incriminating. However, both the state and Fifth Amendment privileges against self-incrimination are personal to the defendant and cannot be asserted by or on behalf of third parties. The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution ensure the criminally accused the right to effective assistance of counsel, which includes the right to a thorough defense investigation. In State v. Mingo, the Court held that defense counsel cannot be compelled, via discovery, to give the State inculpatory expert materials it generated in preparation for trial unless the defense intends to introduce or use that expert evidence at trial, noting that such a rule furthers the right to effective assistance of counsel because defense counsel will not be deterred from “seeking out expert evidence” to aid its defense that may turn out to be unfavorable. 77 N.J. 576, 582, 584 (1978).
And one year after the Mingo decision, the Court expanded its holding to include statements or summaries of statements made by a State witness to defense counsel when the defense does not intend to use the statements at trial. State v. Williams, 80 N.J. 472, 480-82 (1979). The Court noted that “it is abhorrent to our concept of criminal justice to compel a defendant, under the guise of reciprocal discovery, to disclose to the State inculpatory evidence uncovered by defense counsel during his preparation for trial and then allow the State to use that evidence as part of its case in chief.”
Here, the Court gives a nod to its precedent in Mingo. The defense cited to Mingo in support of their position before the trial court and appellate division.
