With those principles in mind, and based on the Rule’s practical application since January 1, 2017, the Court clarifies and revises Rule 3:4-2(c), effective at once. The revisions are to be read with Rule 3:13-3, which obligates the State to provide full discovery when it makes a pre-indictment plea offer or when an indictment is returned or unsealed. In appropriate cases, the prosecutor may apply for a protective order directly to the judge who will preside over the detention hearing. If, after an extensive, long-term investigation, the State seeks permission to provide more limited discovery, judges may direct that a representative sample of statements and reports be disclosed before the detention hearing. Prosecutors looking to gain a tactical advantage by not disclosing certain discovery before a detention hearing will likely seize on this exception. The phrase “extensive, long-term investigation” is subject to interpretation. It is also subject to manipulation in that the State controls the length of their investigations.
When the Court adopted the original Rule, it unanimously rejected the recommendation that videotapes be disclosed before a detention hearing. The revised rule maintains that approach. It is ironic that videos, typically the best and most objective form of evidence, are the one type of evidence that was unanimously rejected as discoverable before a detention hearing. Before this case held to the contrary, I would have responded by arguing for disclosure of just the audio portion of any video that might exist. The discovery rule—in its original and revised form—satisfies the requirements of due process and passes muster under the Federal and New Jersey Constitutions.
Applying Rule 3:4-2(c), as clarified, to this case, any initial police reports about the witnesses must be disclosed, and the prosecution must provide copies of statements or reports of the two eyewitnesses. When an eyewitness makes an identification, the State must document the process and record certain details. That information should be disclosed along with copies of any photo arrays or photos used in the identification process. Because photos shown as part of an identification receive special treatment under the law, their disclosure is an exception to the rule. Neither the original nor the revised Rule calls for disclosure of surveillance videos and similar items.
The judgment of the Appellate Division is affirmed and modified. The revised Rule 3:4-2(c) shall go into effect at once. Justin Albin has a recent history of being the lone dissenting justice who would have sided with the defense. Here he concurs in the judgment in this case based on the language of the then-operative Rule but dissents from the majority’s decision to draft a new rule. In Justice Albin’s view, the redrafted Rule sanctifies artificial distinctions, making highly relevant evidence non-discoverable (a videotape) and second-hand evidence discoverable (written summary of tape). The redrafted Rule also gives the prosecutor a perverse incentive to place information, not in the affidavit of probable cause, but rather in the PLEIR because reports and statements referenced in the PLEIR are non-discoverable. Unfortunately, while Justice Albin’s intentions were pure, he may have provided law enforcement with a road map to avoiding their discovery obligations.
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