DWI evidence must be requested, obtained, and reviewed as quickly as possible. Not only may close analysis of the discovery, also known as evidence, expose weaknesses in your case, but the discovery process offers defenses in itself. If you have been arrested for a DWI, speak with an experienced defense lawyer right away. Contact me by calling one of my New Jersey locations so we can discuss what defenses are available in your case.
Certain foundational documents must be admitted at trial and disclosed to you prior to trial. These documents are the supporting materials for the breath reading to be admitted at trial. Without them, the results of a breathalyzer or Alcotest sample cannot be used against you. You and your attorney are entitled to much more evidence in addition to these foundational documents including arrests reports, videotape, narratives, 911 recordings, witness statements and other items.
In municipal court prosecutions, the defendant initiates discovery simply by making demand of the prosecutor. Rule 7:7-7(c). Both the Rules of Court and case law make it clear that it is the prosecutor’s unique function to be responsible for providing discovery when a request is made. Rule 7:7-7(a); State v. Polansky, 216 N.J. Super. 549 (Law Div. 1986); State v. Holup, 253 N.J.Super. 320 (App. Div. 1992).
A criminal defendant is entitled to disclosure of all exculpatory evidence, i.e., evidence which is material to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963); State v. White, 227 N.J.Super. 443, 547 A.2d 1131 (App. Div. 1988). The defendant is entitled to disclosure of all exculpatory evidence known to the prosecution or which is in the prosecutor’s file even if the prosecution has actually overlooked it. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Carter, 91 N.J. 86, 449 A.2d 1280 (1982). The good faith or bad faith of the prosecution in failing to make disclosure is generally irrelevant. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); but see State v. Reynolds, 124 N.J. 559, 592 A.2d 194 (1991) (Holding that routine destruction of police dispatcher tapes by the police did not, in the absence of any evidence of bad faith or any apparent exculpatory value, constitute a Brady violation).
An individual prosecutor has a personal duty to learn of any favorable evidence known to others acting on the State’s behalf in the case, including the police. Kyles v. Whitley, 514 U.S. 419, 436–440, 115 S.Ct. 1555, 1567–68, 131 L.Ed.2d 490 (1995). A prosecuting agency must bear whatever consequences properly flow from the loss of evidence by other state agencies, such as the police. State v. Montijo, 320 N.J.Super. 483, 727 A.2d 533 (App. Div. 1998). In determining whether the state’s loss of evidence has resulted in prejudice to the defendant, so as to warrant the dismissal of the indictment, the burden of demonstrating a lack of prejudice is upon the state, notwithstanding that there is no presumption of prejudice inuring to the benefit of the defendant. Ibid.
In State v. Holup, 253 N.J.Super. 320 (App. Div. 1992), the court held that dismissal of a DWI case was not warranted for failure of the municipal prosecutor to provide discovery in response to demand filed by defense counsel with the municipal court, where prosecutor claimed that he did not know of demand until date of trial, and request could have been sent to municipal prosecutor’s private office. Moreover, defense counsel could have notified municipal court judge of deficiency at calendar call rather than wait until the date of trial, and counsel could have communicated discovery failure to municipal prosecutor.
In defending DWI cases, defense lawyers should not simply sit around waiting for discovery that the State has not provided. Rather, your attorney should be proactive in creating a record of the prosecution violating the rules of discovery. Call my office so we can discuss these issues and begin the defense process.
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