State v. Lixandra Hernandez and Jose Sanchez(075444) , 225 N.J. 451 ( 2016 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
State v. Lixandra Hernandez and Jose G. Sanchez (A-39-14) (075444)
Argued January 5, 2016 -- Decided June 28, 2016
ALBIN, J., writing for a unanimous Court.
In this appeal, the Court considers whether criminal defendants have a right to discovery of the files in
unrelated cases involving the same cooperating witness.
The State alleges that on three occasions in 2011, defendants sold more than five ounces of cocaine to a
witness cooperating with law enforcement officials. Defendants were arrested a year after the last alleged
transaction. In the interim, the cooperating witness (the Witness) assisted the State in a number of other drug
investigations and prosecutions. The State provided discovery to defense counsel that included the name of the
Witness, his criminal history, his cooperation and plea agreements with the State, and copies of audiotapes that
allegedly contained the recordings of defendants’ transactions with the Witness. In exchange for his cooperation
and guilty plea to racketeering, the State promised the Witness dismissal of the remaining gang-related criminal
charges and a favorable sentence recommendation. The agreement also provides for sentence reductions for each
successful prosecution of three targeted individuals on charges of leader of a narcotic trafficking network and each
successful prosecution of two targeted individuals for distribution of PCP. The cooperation agreement will be void
if the Witness knowingly provides false information, intentionally overstates or understates the involvement of other
individuals in the targeted investigations, or should he be knowingly untruthful, false, incomplete or misleading in
relation to those investigations.
Defendants made discovery demands for information relating to the Witness’s cooperation with the State in
other investigations and prosecutions. The State responded that the defense had not shown that the information was
relevant. The trial court ordered the State to produce all of the documents in the unrelated investigations for an in
camera review. During the hearing, defendants narrowed their discovery demand to: (1) statements of the
cooperating witness and investigative reports in each matter identified by the State in which the witness provided
information; (2) suStatmmaries of any interviews of the cooperating witness in any matter; (3) tape recordings and
CDs of the cooperating witness; and (4) a privilege log of the internal memoranda and e-mails in this case and the
three other Division of Criminal Justice investigations. The State objected, but complied with the court’s order. The
court concluded that the information produced was not relevant or admissible in defendants’ case, but was
discoverable because it might lead to relevant or admissible evidence. The State expressed its concern that the
Witness could face retaliation if his identity were to be revealed to the targets of the unrelated investigations and
invoked the informant’s privilege to attempt to shield his name from disclosure. The court did not find the
informant’s privilege applicable and ruled that the documents in unrelated cases in which the Witness cooperated,
would have to be tendered to the defense, unless the documents pertained to a pending investigation that had yet to
result in an arrest or charge. The court ordered redactions of names and locations from disclosed documents and
entered a protective order stating that the defense attorneys could not discuss the documents with anyone other than
their clients. The State moved for leave to appeal and for a stay of the trial court’s discovery order.
In an unpublished opinion, the appellate panel affirmed the trial court’s discovery order and rejected the
State’s claim that the Witness was entitled to the protection of the informant’s privilege or that potential harm might
come to the Witness by the disclosures. The Court granted the State’s motions for leave to appeal and for a stay
pending appeal. 220 N.J. 564 (2015).
HELD: Although the discovery rule generally requires that the State provide all evidence relevant to the defense of
criminal charges, it does not open the door to foraging through files of other cases in search of relevant evidence.
The discovery ordered by the trial court and Appellate Division exceeds the limits of Rule 3:13-3(b) and is not
supported by this Court’s jurisprudence.
1. An accused has a right to broad discovery after the return of an indictment in a criminal case. Rule 3:13-3(b)
states that discovery shall include exculpatory information and relevant material. Discovery in a criminal case is
appropriate if it will lead to relevant information. Evidence is relevant if it has a tendency in reason to prove or
disprove any fact of consequence to the determination of the action. The State’s discovery obligation also extends to
providing material evidence affecting the credibility of a State’s witness whose testimony may be determinative of
guilt or innocence. Thus, the State must disclose any promise of favorable treatment or leniency offered to a
witness, including any plea or cooperation agreement setting forth the benefits to the witness. While discovery in
criminal cases is broad, it is not unlimited. Nevertheless, trial courts are empowered to order discovery beyond that
mandated by our court rules when doing so will further the truth-seeking function or ensure the fairness of a trial.
However expansive the discovery rule and this Court’s jurisprudence may be, they do not sanction rummaging
through irrelevant evidence. (pp. 14-17)
2. Here, the State’s case is based on a cooperating witness who has given assistance to law enforcement in a number
of criminal investigations. In discovery, the State has given the defense the Witness’s name, his statements to law
enforcement authorities, his criminal history, his plea and cooperation agreements, audio recordings of the alleged
drug transactions, the report of the forensic analysis of the cocaine allegedly sold by defendants, and investigative
reports concerning the alleged offenses committed by defendants. In other words, the Attorney General has opened
its investigative file in this case. The question, therefore, is whether defendants are entitled to open-file discovery of
unrelated cases because the present case and the unrelated cases share a common thread -- the same cooperating
witness. (pp. 18-19)
3. Defendants have a right to expose the bias of the Witness for the purpose of undermining his credibility before the
jury. Defendants can cross-examine the Witness on his expectation of favorable treatment for his cooperation and
argue that he has sold his services and testimony to the State. The State has also opened the door to a line of
questioning by giving itself wide discretion to void the cooperation agreement if the Witness should knowingly
provide false information, answer any questions falsely, or intentionally overstate or understate the involvement of
other individuals in the targeted investigations. Thus, defendant is entitled to information concerning any violation
of the cooperation agreements, including disclosure of material false statements made by the witness and known to
the State. Importantly, at oral argument before this Court, the State conceded that its discovery obligations required
the disclosure of such material false statements. Defendants, however, do not want to rely on the State to turn over
exculpatory information. They insist that they have the right under the discovery rules to sift through the files in the
unrelated investigations in search of false and contradictory statements. At this stage, however, defendants have not
articulated how the disclosure of documents in the unrelated investigations will lead to relevant or admissible
evidence. (pp. 19-21)
4. Defendants claim that they are entitled to false and inconsistent statements made by the Witness in the unrelated
investigations. Such statements would not be admissible under N.J.R.E. 608 because evidence of specific instances
of conduct -- other than a prior conviction -- to prove the character trait of untruthfulness is prohibited. This rule
was designed to prevent unfair foraging into the witness’s past and to prevent wide-ranging collateral attacks on the
general credibility of a witness that would cause confusion of the true issues in the case. Defendants also claim that
documents in the unrelated investigations may be necessary to refresh the Witness’s recollection under N.J.R.E. 612,
but such a vague discovery request is not tied to a specified demand for information that meets the threshold of
relevance. Defendants further claim that discovery is necessary to uncover false criminal accusations against others
that would be admissible under N.J.R.E. 608. However, defendants have not made any showing that the Witness
has made false criminal accusations against others. An open-ended search of unrelated investigative files in the
hope that something may turn up that has impeachment value is not sanctioned by the discovery rule or this Court’s
jurisprudence. (pp. 21-22)
5. The informant’s privilege permits a witness to refuse to disclose the identity of a confidential informant unless the
judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b)
disclosure of his identity is essential to assure a fair determination of the issues. The State has legitimate concerns
for the safety of witnesses. The disclosure of the Witness’s identity in this case is necessary because he will testify
against defendants. The potential threat to his life, however, would increase exponentially if his identity were
revealed to the targets in the unrelated drug investigations. At least at this stage, the disclosure of the Witness’s
identity in the unrelated investigations is not necessary for defendants to receive a fair trial. If defendants cannot
signify with some specificity the relevance of the requested documents -- as opposed to speculative relevance -- the
balancing of probative value against the dangers of disclosure weighs in favor of not removing the Witness’s cover,
at least until defendants can make some concrete showing of need. (pp. 23-24)
The judgment of the Appellate Division is REVERSED. The discovery order is VACATED and the
matter is REMANDED to the trial court for further proceedings consistent with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and SOLOMON; and
JUDGE CUFF (temporarily assigned) join in JUSTICE ALBIN’S opinion. JUSTICE FERNANDEZ-VINA
did not participate.
2
SUPREME COURT OF NEW JERSEY
A-39 September Term 2014
075444
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
LIXANDRA HERNANDEZ and JOSE
G. SANCHEZ,
Defendants-Respondents.
Argued January 5, 2016 – Decided June 28, 2016
On appeal from the Superior Court, Appellate
Division.
Carol M. Henderson, Assistant Attorney
General, argued the cause for appellant
(John J. Hoffman, Acting Attorney General of
New Jersey, attorney).
Michael P. Koribanics and Charles J. Alvarez
argued the cause for respondents (Koribanics
& Koribanics, attorneys for Lixandra
Hernandez and Peter R. Willis, attorney for
Jose G. Sanchez).
Lawrence S. Lustberg argued the cause for
amicus curiae Association of Criminal
Defense Lawyers of New Jersey (Gibbons,
attorneys; Mr. Lustberg, Jillian T. Stein,
and Laurie A. Kelly, on the brief).
JUSTICE ALBIN delivered the opinion of the Court.
New Jersey provides a broad range of discovery to an
accused in a criminal case under Rule 3:13-3. This open-file
approach is intended to ensure fair and just trials. Here, the
1
issue is not whether defendants have a right to discovery of the
prosecutor’s file in their case, but whether they have a right
to discovery of the files in unrelated cases involving the same
cooperating witness.
The cooperating witness (the Witness) in defendants’ drug
case assisted the State in a number of drug investigations and
prosecutions. In discovery, defendants were given the
agreements between the State and the Witness in this case and in
unrelated cases, and the State has represented that it will
provide the defense with any known material false statements
made by the Witness in those cases. Defendants nevertheless
insist that they are entitled to every statement made by the
Witness in each case in which he has cooperated with the State,
whether those statements are contained in a transcribed
interview, recorded drug transaction, investigative report, or
memorandum between members of the prosecutorial team.
The trial court determined that such information,
regardless of its lack of relevance, is discoverable under our
court rules. The Appellate Division affirmed.
We hold that the discovery ordered by the trial court and
Appellate Division exceeds the limits of Rule 3:13-3(b) and is
not supported by our jurisprudence. Although our discovery rule
generally requires that the State provide all evidence relevant
to the defense of criminal charges, it does not open the door to
2
foraging through files of other cases in search of relevant
evidence. The only information discoverable in the unrelated
cases that is relevant to the defense at this point are the
cooperation agreements between the State and the Witness and any
violations of the agreements, such as material false statements
made by the Witness and known to the State. The discovery order
here requires disclosure of information not mandated by our
discovery rule -- information that has no ostensible relevance
to the case to be tried.
Accordingly, we reverse the judgment of the Appellate
Division and remand for proceedings consistent with this
opinion.
I.
The Charges
Defendants Lixandra Hernandez and Jose G. Sanchez are
charged in a State Grand Jury indictment with second-degree
conspiracy to distribute more than five ounces of cocaine,
N.J.S.A. 2C:5-2; first-degree distribution of more than five
ounces of cocaine, N.J.S.A. 2C:35-5(a)(1), (b)(1), (c), and
N.J.S.A. 2C:2-6; second-degree distribution of cocaine within
500 feet of a public park, N.J.S.A. 2C:35-7.1 and N.J.S.A. 2C:2-
6; and third-degree possession of cocaine, N.J.S.A. 2C:35-
10(a)(1) and N.J.S.A. 2C:2-6.
3
The State alleges that on November 28, December 1, and
December 14, 2011, defendants sold, in all, more than five
ounces of cocaine to the Witness cooperating with law
enforcement officials. The three controlled buys were audio-
recorded.
Defendants were not arrested until a year after the last
alleged drug transaction. In the interim, the Witness
cooperated with the State in a number of other investigations.
The State provided discovery to defense counsel that
included the name of the Witness, his criminal history, his
cooperation agreements and plea agreement with the State, and
copies of audiotapes that allegedly contained the recordings of
defendants’ transactions with the Witness. The discovery
revealed that the Witness had cooperated with the State in
criminal investigations of a violent street gang. In exchange
for his cooperation and guilty plea to racketeering, the State
promised the Witness dismissal of the remaining gang-related
criminal charges and a favorable sentence recommendation.
The Cooperation Agreement
The State and the Witness entered into two cooperation
agreements, but only the superseding agreement is germane to
this case. The superseding cooperation agreement sets forth the
criminal charges filed against the Witness, including (1) first-
degree racketeering; (2) second-degree conspiracy to commit
4
robbery, burglary, and possession of a firearm with the purpose
to use it unlawfully against another; (3) third-degree receiving
stolen property; and (4) two second-degree and three third-
degree weapons offenses. On the charge of racketeering alone,
the Witness faced an extended term sentence of life imprisonment
and exposure to mandatory consecutive sentences on other
offenses, as well as application of the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2.
The superseding cooperation agreement enumerates a number
of incentives for the Witness’s assistance. The State has
promised the Witness that if his cooperation is of “productive
and of substantial value to the State . . . , the State will
recommend a sentence of 14 years in State Prison subject to
[NERA]” on the racketeering charge to which he pled guilty.1 The
cooperation agreement also provides for further sentence
reductions of eighteen months for each “successful prosecution”
of three targeted individuals on charges of first-degree leader
of a narcotic trafficking network, reductions of six months for
each “successful prosecution” of two targeted individuals for
first-degree distribution of PCP, and further sentence
1 The Witness’s plea agreement with the State indicates that, in
exchange for his plea of guilty to racketeering and conspiracy
to commit robbery and burglary, the remaining charges will be
dismissed. The cooperation agreement does not refer to a
sentence recommendation on the conspiracy charge.
5
reductions for convictions of lesser offenses. The State has
further promised to amend the agreement to give the Witness
credit for cooperation leading to the indictment of persons
involved in other criminal schemes.
The State makes clear that the cooperation agreement will
be void if the Witness should “knowingly provide false
information, answer any questions falsely . . . or intentionally
overstate or understate the involvement of other individuals” in
the targeted investigations, or should he “in any manner be
knowingly untruthful, false, incomplete or misleading in
relation” to those investigations.
Discovery Issue
Defendants made broad discovery demands for information
relating to the Witness’s cooperation with the State in other
investigations and prosecutions. In a letter dated February 3,
2014, the defense requested:
1. All internal memorandum, emails, and
interviews of [the Witness] by any member of
law enforcement regarding all matters referred
to in the cooperation agreements dated October
26, 2011 and January 25, 2012.
2. Notes and documentations of all contacts
between and amongst [the Witness] and any
member of law enforcement for the state of New
Jersey.
3. Any and all communications [including
emails] from the attorney for [the Witness] to
any member of law enforcement and/or the
6
Attorney General’s office regarding his
cooperation and/or plea agreement.
4. Any and all statements [including emails]
made in proffers or disclosures made by [the
Witness] in furtherance of his cooperation
agreement.
5. Copies of any [and] all documents,
including discovery in prior cases that were
reviewed in connection with granting [the
Witness] a cooperation agreement.
The State responded that the defense had not made a showing
that the information requested was relevant. At a February 7,
2014 discovery conference, the trial court ordered the State to
produce all of the documents in the unrelated investigations for
an in camera review and to prepare a privilege log. The State
indicated that the pretrial discovery in the unrelated cases in
which the Witness had cooperated filled nine banker’s boxes.
During the hearing, defendants narrowed their discovery demand
to:
1. Statements of the cooperating witness and
investigative reports in the four matters
identified by the State in which the witness
provided information.
2. Summaries of any interviews of the
cooperating witness in any matter.
3. Tape recordings and CDs of the cooperating
witness.
4. A privilege log of the internal memoranda
and e-mails in this case and the three other
Division of Criminal Justice investigations.
7
Although the State continued to object to the defense’s
discovery demands, the State complied with the court’s order and
provided for in camera review a number of documents, including
investigative reports and intercepted telephone calls in
unrelated matters in which the Witness had cooperated. After
completing the in camera document review, the court concluded
that the information produced was not relevant or admissible in
defendants’ case, but was discoverable, apparently based on the
court’s belief -- though not stated explicitly -- that the
information might lead to relevant or admissible evidence. The
State vigorously expressed its concern that the Witness could
face retaliation or even death if his identity were to be
revealed to the targets of the unrelated investigations. The
State invoked the informant’s privilege, N.J.R.E. 516, in an
attempt to shield his name from disclosure. The court did not
find the informant’s privilege applicable.
Ultimately, the court ruled that, notwithstanding their
lack of relevance in the present matter, documents in unrelated
cases in which the Witness cooperated would have to be tendered
to the defense, unless the documents pertained to a pending
investigation that had yet to result in an arrest or charge.
However, in those cases in which the Witness cooperated and
either no charges were filed or charges are pending against the
targets of the investigation, or the targets entered guilty
8
pleas, the court ordered disclosure of documents to the defense.
Those documents to be disclosed include investigative reports,
the Witness’s statements and summaries of those statements,
recordings of conversations between the Witness and
investigative targets, and -- subject to the work-product
privilege -- internal law enforcement emails mentioning the
Witness and emails between the Witness’s attorney and law
enforcement officials.2 In light of the potential threat to the
Witness from those disclosures, the court ordered redactions of
names and locations from disclosed documents.3 The court also
entered a protective order stating that the defense attorneys
could not discuss the documents “with anybody other than [their]
clients.”
A panel of the Appellate Division granted the State’s
motions for leave to appeal and for a stay of the discovery
order.
2 The court indicated that relief would be granted to the State
if the electronic email search became unduly burdensome.
3 The signed discovery order entered by the trial court provides
that “subject to the appropriate redactions and the entry of a
Protective Order as set forth on the record February 10,
2014[,]” “[t]he State must release documents and other materials
in its possession related to [the Witness],” but not “documents
or materials related . . . to ongoing investigations.” The
February 10 record of the discovery proceeding is not a model of
clarity. A written discovery order that is detailed and
specific will assist not only the parties in understanding their
respective obligations, but also appellate review.
9
II.
In an unpublished opinion, the appellate panel affirmed the
trial court’s discovery order. In doing so, the panel noted
that broad discovery is permitted under Rule 3:13-3 and that
substantial deference must be paid to the trial court’s
evidentiary rulings. It observed that the discovery request was
narrowed to “e-mails, the three other [Division of Criminal
Justice] investigations, and statements and summaries involving
[the Witness],” and “a privilege log detailing internal
memoranda.” The panel concluded that the “discovery is
rationally related to defendants’ right to confront a key state
witness as to potential bias, prejudice or motive and is
relevant for that purpose.” It rejected the State’s claim that
the Witness was entitled to the protection of the informant’s
privilege, N.J.R.E. 516, or that potential harm might come to
the Witness by the disclosures, reasoning that the Witness’s
“identifying information has already been provided in this case
as well as in other criminal prosecutions.” Last, the panel
indicated that the “discovery order was tailored to [the
Witness’s] involvement in other investigations referenced in the
cooperation agreements” and that the “court stated if the
electronic search produced thousands of documents the request
would be narrowed.”
10
We granted the State’s motions for leave to appeal and for
a stay pending appeal. State v. Hernandez, 220 N.J. 564 (2015).
The Association of Criminal Defense Lawyers of New Jersey (ACDL)
was granted leave to participate as amicus curiae before the
Appellate Division, and therefore was permitted, “without
seeking further leave,” to appear before this Court. See R.
1:13-9(d).
III.
A.
The State argues that its use of a cooperating witness in
this case is not a legitimate basis for ordering discovery of
documents in unrelated investigations involving the Witness when
the documents bear no relevance to the present case. The State
maintains that the trial court’s order is “an unprecedented
expansion of the discovery rules,” allows the defense to go on a
“fishing expedition,” and places on the Attorney General’s
Office the burdensome task of creating a privilege log of every
email communication or memorandum mentioning the cooperating
witness. According to the State, the trial court’s
acknowledgment that the documents in the unrelated
investigations are not relevant or admissible in this case is
proof that the documents are not subject to discovery. The
State contends that it has satisfied its discovery obligations
by providing the defense with all statements made by the Witness
11
in this case, the Witness’s criminal record, and cooperation
agreements between the State and the Witness involving all
investigations. Those disclosures, the State asserts, allow
defendants to explore the Witness’s favorable treatment and to
expose potential bias.
The State also submits that the cooperating witness’s name
was not disclosed in unrelated investigations because some of
those investigations did not result in the filing of charges,
and, in others, because the cases were resolved without trials.
The State claims that disclosure of the Witness’s identity in
those unrelated cases unnecessarily subjects him to retaliation
and potential harm.
B.
Defendants urge this Court to affirm the trial court’s
discovery order, emphasizing that the issue at this point is not
the admissibility of the documents in the unrelated
investigations. Defendants submit that the discovery order was
“specifically tailored to identify material related to any
benefits to be received by the cooperating witness.” According
to defendants, “each successive investigation mentioned in the
cooperation agreement has a direct impact and influence on the
value of any benefit [the Witness] will receive.” Defendants
also argue that the cooperation agreements give rise to the need
for the documents so that the defense can explore any benefits
12
given to the Witness, N.J.R.E. 607, expose any inconsistent
statements, N.J.R.E. 613, refresh the Witness’s recollection
with a writing, N.J.R.E. 612, and probe the Witness’s character
for truthfulness and for any false accusation he may have made,
N.J.R.E. 608. Finally, defendants contend that the State bears
the burden of producing discovery in its possession, however
onerous that may be, and that the documents ordered to be
disclosed “are already available, and in some cases already
organized.”
C.
Amicus curiae ACDL argues that upholding the discovery
order in this case is particularly important because of
empirical evidence and an “emerging consensus that the testimony
of [cooperating witnesses], upon which so many convictions are
based, is often unreliable, particularly in light of the
promises of lenient treatment or compensation that these
witnesses receive.” It submits that the discovery order “was
carefully tailored to provide important impeachment material but
not to tread on ongoing State investigations.” The ACDL posits
that “the statements of a [cooperating witness] in other similar
investigations . . . are . . . very likely to reveal exculpatory
or impeachment evidence that will be crucial to the effective
cross-examination of that witness.” Additionally, the ACDL
maintains that the court’s ordering of the redaction of names
13
and locations from documents in unrelated investigations in
which the cooperating witness’s identity has not been revealed,
and the entry of a protective order, address and mitigate any
potential for reprisal against the Witness.
IV.
A.
We accord substantial deference to a trial court’s issuance
of a discovery order and will not interfere with such an order
absent an abuse of discretion. State ex rel. A.B., 219 N.J.
542, 554 (2014). We need not defer, however, to a discovery
order that is well “wide of the mark,” ibid., or “based on a
mistaken understanding of the applicable law,” Pomerantz Paper
Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011) (quoting
Rivers v. LSC P’ship, 378 N.J. Super. 68, 80 (App. Div.),
certif. denied, 185 N.J. 296 (2005)). Additionally, our review
of the meaning or scope of a court rule is de novo, and
therefore we owe no deference to the interpretative statements
of the trial court and Appellate Division, unless they are
persuasive in their reasoning. See A.B., supra, 219 N.J. at
554-55.
B.
In New Jersey, an accused has a right to broad discovery
after the return of an indictment in a criminal case. State v.
Scoles, 214 N.J. 236, 252 (2013). This state’s “open-file
14
approach to pretrial discovery in criminal matters” is intended
“[t]o advance the goal of providing fair and just criminal
trials.” Ibid. The metes and bounds of the State’s discovery
obligation to the defense is found in Rule 3:13-3(b), which
states that “[d]iscovery shall include exculpatory information
or material” and “relevant material,” including all items set
forth in ten separate categories.
No one questions that discovery in a criminal case “is
appropriate if it will lead to relevant” information. State v.
Ballard, 331 N.J. Super. 529, 538 (App. Div. 2000) (emphasis
added). But cf. R. 4:10-2(a) (stating that discovery in civil
cases extends to information that “appears reasonably calculated
to lead to the discovery of admissible evidence” (emphasis
added)). “Relevancy is the hallmark of admissibility of
evidence.” State v. Darby, 174 N.J. 509, 519 (2002). Evidence
is relevant if it “ha[s] a tendency in reason to prove or
disprove any fact of consequence to the determination of the
action.” N.J.R.E. 401.
Four categories of Rule 3:13-3(b), requiring the disclosure
of relevant material to the defense, are directly germane to
this case:
(E) books, papers, documents, or copies
thereof, or tangible objects, buildings or
places which are within the possession,
custody or control of the prosecutor,
including, but not limited to, writings,
15
drawings, graphs, charts, photographs, video
and sound recordings, images, electronically
stored information, and any other data or data
compilations stored in any medium from which
information can be obtained and translated, if
necessary, into reasonably usable form;
(F) names, addresses, and birthdates of any
persons whom the prosecutor knows to have
relevant evidence or information including a
designation by the prosecutor as to which of
those persons may be called as witnesses;
(G) record of statements, signed or unsigned,
by such persons or by co-defendants which are
within the possession, custody or control of
the prosecutor and any relevant record of
prior conviction of such persons. . . . ;
(H) police reports that are within the
possession, custody, or control of the
prosecutor[.]
[R. 3:13-3(b)(1)(E)-(H).]
The State’s discovery obligation also extends to providing
“material evidence affecting [the] credibility” of a State’s
witness whose testimony may be determinative of guilt or
innocence. State v. Carter, 69 N.J. 420, 433 (1976) (citing
Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed.
2d 104 (1972)). Thus, the State must disclose any promise of
favorable treatment or leniency offered to a witness, including
any plea or cooperation agreement setting forth the benefits to
the witness. See State v. Long, 119 N.J. 439, 489 (1990);
Carter, supra, 69 N.J. at 429-30, 434.
16
While discovery in criminal cases is broad, it is not
unlimited. State v. D.R.H., 127 N.J. 249, 256 (1992). “For
example, defendants cannot transform the discovery process into
an unfocused, haphazard search for evidence.” Ibid.; see also
State v. R.W., 104 N.J. 14, 28 (1986) (“[A]llowing a defendant
to forage for evidence without a reasonable basis is not an
ingredient of either due process or fundamental fairness in the
administration of the criminal laws.”). Nevertheless, “our
trial courts are empowered to order discovery beyond that
mandated by our court rules when doing so will further the
truth-seeking function or ensure the fairness of a trial.”
A.B., supra, 219 N.J. at 560. In A.B., we upheld an order
allowing the defense to inspect the alleged victim’s home, where
an alleged sexual offense had occurred, even though the premises
did “not fall within the general scope of the automatic
discovery rule because her home [was] not ‘within the
possession, custody or control of the prosecutor.’” Id. at 556
(quoting R. 3:13-3(b)(1)(E)). We did so, notwithstanding the
intrusion into the alleged victim’s privacy rights, because the
inspection would lead to relevant evidence -- an understanding
of the layout of the crime scene -- and was necessary to protect
the juvenile’s right to a fair trial. Id. at 556-62. However
expansive our discovery rule and jurisprudence may be, they do
not sanction rummaging through irrelevant evidence.
17
V.
A.
We begin our analysis by indicating what is not at issue.
The State has provided discovery directly related to the charges
against defendants. The State’s case is based on a cooperating
witness who has given assistance to law enforcement in a number
of criminal investigations. In this matter, the Witness acted
in the role of a drug buyer, making three alleged drug purchases
from defendants that resulted in the charges enumerated in the
indictment. The Witness recorded each transaction. At the time
that the Witness played the role of drug buyer here, he had
entered into a cooperation agreement with the State seeking
favorable treatment for an array of offenses that he faced,
including first-degree racketeering. The Witness’s cooperation
agreement details the charge and sentence reductions he will
receive for his assistance to law enforcement in this case and
in a number of other criminal investigations. In at least some
-- if not all -- of those other investigations, his identity
still has not been disclosed to ensure his safety.4
In discovery, the State has given the defense the Witness’s
name, his statements to law enforcement authorities, his
criminal history, his plea and cooperation agreements, audio
4 The lack of specificity in the record prompts our caution in
not making an unqualified assertion.
18
recordings of the alleged drug transactions, the report of the
forensic analysis of the cocaine allegedly sold by defendants,
and investigative reports concerning the alleged offenses
committed by defendants. See R. 3:13-3(b). In other words, the
Attorney General has opened its investigative file in this case.
The question, therefore, is whether defendants are entitled to
open-file discovery of unrelated cases because the present case
and the unrelated cases share a common thread -- the same
cooperating witness.
B.
Defendants have a right to expose the bias of the Witness -
- the favorable treatment promised to him for his cooperation in
this case and other investigations -- for the purpose of
undermining his credibility before the jury. Defendants were
provided in discovery the plea and cooperation agreements, which
detail the charge- and sentence-reduction incentives offered to
the Witness if the State credits his cooperation in this case as
of “productive and of substantial value” and if his cooperation
leads to the “successful prosecution” of targeted individuals in
other cases. Defendants can cross-examine the Witness on his
expectation of favorable treatment for his cooperation and argue
that he has sold his services and testimony to the State.
The State also has opened the door to a line of questioning
by giving itself wide discretion to void the cooperation
19
agreement if the Witness should “knowingly provide false
information, answer any questions falsely . . . or intentionally
overstate or understate the involvement of other individuals” in
the targeted investigations. The State has the proverbial sword
of Damocles hanging over the Witness’s head if he is untruthful.
Clearly, if the Witness knowingly provided false or misleading
information to the State in the other investigations and the
State declined to void the agreement, the State’s failure to do
so would be another benefit conferred on the Witness that must
be disclosed in discovery. In such a circumstance, defendants
could argue that even when the Witness lies, he has a reasonable
expectation that he will receive favorable treatment.
Defendants have “a right to explore evidence tending to show
that the State may have a ‘hold’ of some kind over a witness,
the mere existence of which might prompt the individual to color
his testimony in favor of the prosecution.” State v. Bass, 224
N.J. 285, 302 (2016) (quoting State v. Parsons, 341 N.J. Super.
448, 458 (App. Div. 2001)). Thus, defendant is entitled to
information concerning any violation of the cooperation
agreements, including disclosure of material false statements
made by the witness and known to the State. Importantly, at
oral argument before this Court, the State conceded that its
discovery obligations required the disclosure of such material
false statements.
20
Defendants, however, do not want to rely on the kindness of
the State to turn over exculpatory information. They insist
that they have the right under our discovery rules and Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963),
to sift through the files in the unrelated investigations --
through the Witness’s statements, investigative reports and
emails mentioning the Witness, and recorded conversations
between the Witness and investigative targets in search of false
and contradictory statements.5 Defendants want to undertake a
speculative venture, hoping to snare some morsel of information
that may be helpful to the defense. At this stage, however,
defendants have not articulated how the disclosure of documents
in the unrelated investigations will lead to relevant or
admissible evidence. See Ballard, supra, 331 N.J. Super. at
538.
Putting aside the issue of bias previously discussed,
defendants claim that they are entitled to false and
inconsistent statements made by the Witness in the unrelated
5 In Brady, supra, the United States Supreme Court held that due
process forbids the government from withholding material
evidence favorable to an accused that has been requested by the
defense. 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at
218. The disclosures required by Rule 3:13-3(b)(1), which
include the release of exculpatory information or material and
all other information relevant to a legitimate defense, are more
expansive than the due process disclosures mandated by Brady and
its progeny.
21
investigations. But such statements would not be admissible
under N.J.R.E. 608 because “evidence of specific instances of
conduct -- other than a prior conviction -- to prove the
character trait of untruthfulness is prohibited.” State v.
Guenther, 181 N.J. 129, 140 (2004). This rule “was designed to
prevent unfair foraging into the witness’s past” and to prevent
“wide-ranging collateral attacks on the general credibility of a
witness [that] would cause confusion of the true issues in the
case.” Id. at 141-42.
Defendants also claim that documents in the unrelated
investigations may be necessary to refresh the Witness’s
recollection, N.J.R.E. 612, but such a vague discovery request
is not tied to a specified demand for information that meets the
threshold of relevance. Defendants further claim that discovery
is necessary to uncover false criminal accusations against
others that would be admissible under N.J.R.E. 608. In
Guenther, supra, we held that “in limited circumstances and
under very strict controls a defendant has the right to show
that a victim-witness has made a prior false criminal accusation
for the purpose of challenging that witness’s credibility.” 181
N.J. at 154-58. But defendants have not made any showing that
the Witness has made false criminal accusations against others
that would entitle them to scour through nine banker’s boxes of
unrelated investigations in which the Witness has cooperated.
22
An open-ended search of unrelated investigative files in the
hope that something may turn up that has impeachment value is
not sanctioned by our discovery rule or jurisprudence.
C.
The informant’s privilege, N.J.R.E. 516, permits a witness
to refuse to disclose the identity of a confidential informant
“unless the judge finds that (a) the identity of the person
furnishing the information has already been otherwise disclosed
or (b) disclosure of his identity is essential to assure a fair
determination of the issues.” The State has legitimate concerns
for the safety of witnesses who are considered “snitches” or
“rats.” The disclosure of the Witness’s identity in this case
is necessary because he will testify against defendants. The
potential threat to his life, however, would increase
exponentially if his identity were revealed to the targets in
the unrelated drug investigations. At least at this stage, we
cannot find that the disclosure of the Witness’s identity in the
unrelated investigations is necessary for defendants to receive
a fair trial in this case. See State v. Milligan, 71 N.J. 373,
384 (1976) (noting that disclosure depends on balancing of
factors, “taking into consideration the crime charged, the
possible defenses, the possible significance of the informer’s
testimony, and other relevant factors” (quoting Roviaro v.
23
United States, 353 U.S. 53, 62, 77 S. Ct. 623, 628, 1 L. Ed. 2d
639, 646 (1957))).
We recognize that the trial court ordered the redaction of
names and locations from documents in the unrelated
investigations. Of course, such redactions devalue the utility
of the materials requested by defendants. For example,
establishing a potential false accusation would be exceedingly
difficult if the attorney does not know the name of the target.
Nevertheless, despite the redactions and the protective order,
the potential that the Witness’s identity will be disclosed in
unrelated investigations is still a risk. If defendants cannot
signify with some specificity the relevance of the requested
documents -- as opposed to speculative relevance -- the
balancing of probative value against the dangers of disclosure
weighs in favor of not removing the Witness’s cover, at least
until defendants can make some concrete showing of need.
We fully understand that the reliability of State
informants and cooperating witnesses must be subject to special
scrutiny because the charge-reduction and sentence-reduction
incentives given to such witnesses have the capacity to induce
false testimony. That is why the State is required to make
complete disclosure of the cooperation and plea agreements.
Through defendants’ cross-examination and summation, the jury
will know that the Witness has a powerful reason to curry favor
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with the State. In addition, the State is required as part of
its discovery obligation to disclose known material false
statements made by the Witness in the unrelated investigations
because such disclosures bear on whether the State is enforcing
or altering its cooperation agreement. We have no reason to
believe that the State will not fulfill its professional
responsibilities in making any required disclosures.
It bears repeating that the trial court’s in camera review
of the documents in the unrelated investigations led the court
to conclude that they did not have relevance to the present
case. Relevance is the touchstone of discovery. Defendants’
discovery request does not fall within the ambit of Rule 3:13-
3(b) and is not supported by our jurisprudence.
VI.
For the reasons expressed, we reverse the judgment of the
Appellate Division, vacate the discovery order, and remand to
the trial court for further proceedings consistent with this
opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE
ALBIN’S opinion. JUSTICE FERNANDEZ-VINA did not participate.
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