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Wednesday, June 14, 2017

Defense not required to produce witness statement if not in writing State v. Brian Tier

State v. Brian Tier (A-73-15) (077328)

Argued January 30, 2017 -- Decided May 2, 2017

Timpone, J., writing for a unanimous Court.

In this appeal, the Court considers a question of first impression: What are a defendant’s post-indictment reciprocal discovery obligations to the State regarding a defense witness’s oral statements?
At a status conference, the State took issue with the witness list defendant produced because it listed the names of three men but did not provide identifiers, addresses, or synopses of their anticipated testimony—which the State alleged was in violation of Rule 3:13-3(b)(2)(C). In response, defendant agreed to produce identifiers and addresses but argued against providing synopses. Defendant asserted that the Rule requires that synopses be produced only if they have already been reduced to writing. Defense counsel affirmed that no witness statement summaries had been prepared.
The trial court ordered the defense to produce witness synopses and to create them if they had not been previously drafted. The court specifically ordered defense counsel to provide the State with the reason why the witnesses are on the list. The Appellate Division summarily reversed the trial court’s order, reasoning that a criminal defendant’s disclosures are carefully limited by the strictures of Rule 3:13-3(b)(2).
The trial court granted a motion to stay defendant’s trial pending the Court’s ruling on the motion. The Court granted the State’s motion for leave to appeal. 226 N.J. 205 (2016).
HELD: A plain reading of Rule 3:13-3(b)(2)(C) requires production of witness statements only if those statements have already been reduced to writing. Nothing in the rules precludes a trial court from ordering a defendant to designate witnesses as either character or fact witnesses, however. The Court encourages practitioners to participate in cooperative discovery in order to ease the burden on all parties involved.
1. Rule 3:13-3(b)(2)(C) reads, in pertinent part: “A defendant shall provide the State with all relevant material, including, but not limited to . . . the names, addresses, and birthdates of those persons known to defendant who may be called as witnesses at trial and their written statements, if any, including memoranda reporting or summarizing their oral statements.” This Rule has not seen much review.
2. In State v. DiTolvo, 273 N.J. Super. 111 (Law Div. 1994), the State moved to bar a witness’s testimony after the defendant refused to provide a written summary of the proposed testimony. The court reasoned that the criminal justice system had a strong interest in “broad and extensive discovery.” Finding no competing interest in favor of defendant, and failing to discuss a criminal defendant’s special constitutional status, the court ordered the defendant to produce a summary of the witness’s proffered testimony or the court would bar the testimony.
3. State v. Williams, 80 N.J. 472 (1979), dealt with a collateral issue: whether summaries already in existence were required to be disclosed if the defendant had no intention of using them at trial. Because the request related to inculpatory evidence, the defendant had no duty to produce those documents. The Court recognized that “[evidential materials obtained in the exercise of [defense counsel’s] professional responsibility are so interwoven with the professional judgments relating to a client’s case, strategy and tactics that they may be said to share the characteristics of an attorney’s ‘work product,’” and that “[blanket discovery of the fruits of this kind of legal creativity and preparation may impact directly upon the freedom and initiative which a lawyer must have in order to fully represent his client.”  Id. at 479.
4. In addition to the confidentiality concerns raised by disclosure of work product, one of the underlying principles on which our criminal justice system is based is that a defendant “has a fundamental right to remain silent.”  Williams v. Florida, 399 U.S. 78, 112, 90 S. Ct. 1893, 1912, 26 L. Ed. 2d 446, 483 (1970) (Black, J., concurring in part and dissenting in part). This defendant agreed to reciprocal discovery, implicating the Rule and necessitating its review.  See R. 3:13-3(b)(1).  
5. Rule 3:13-3(b)(2)(C) plainly requires a defendant to produce “the names, addresses, and birthdates of those persons known to defendant who may be called as witnesses at trial.” Written statements, however, need only be produced if they exist. This result is unquestionably mandated by the language “if any,” which modifies “written statements.” The language following “if any” does not alter that result; it merely indicates that memoranda either reporting or summarizing a witness’s oral statements constitute discoverable written statements for purposes of Rule 3:13-3(b)(2)(C).
6. The trial court’s order was based upon a mistaken understanding of the applicable law, requiring reversal. However, the Court stops short of finding that the entire order was an abuse of discretion. Nothing in the court rules prevents the trial court from obligating defendant to identify a witness as either a character or fact witness. To the contrary, requiring a defendant to identify the category of witness not only alleviates some of the State’s concern regarding the burden of investigating a never-ending list of potential witnesses, but falls in line with the Court’s policy encouraging cooperation in the discovery process.
The judgment of the Appellate Division is AFFIRMED as MODIFIED. The matter is REMANDED to the trial court for entry of a discovery order consistent with this opinion.