STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. LIXANDRA HERNANDEZ AND JOSE G. SANCHEZ, DEFENDANTS-RESPONDENTS.
Supreme Court of New Jersey
Argued January 5, 2016—Decided June 28, 2016.
139 A.3d 46 | 225 N.J. 451
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
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
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,
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 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),
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
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:
- 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.
- Notes and documentations of all contacts between and amongst [the Witness] and any member of law enforcement for the state of New Jersey.
- Any and all communications [including emails] from the attorney for [the Witness] to any member of law enforcement and/or the Attorney General‘s office regarding his cooperation and/or plea agreement.
- Any and all statements [including emails] made in proffers or disclosures made by [the Witness] in furtherance of his cooperation agreement.
- 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:
- Statements of the cooperating witness and investigative reports in the four matters identified by the State in which the witness provided information.
- Summaries of any interviews of the cooperating witness in any matter.
- Tape recordings and CDs of the cooperating witness.
- A privilege log of the internal memoranda and e-mails in this case and the three other Division of Criminal Justice investigations.
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
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 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.
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
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 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 given to the Witness,
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,
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, 99 A.3d 782 (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, 25 A.3d 221 (2011) (quoting Rivers v. LSC P‘ship, 378 N.J. Super. 68, 80, 874 A.2d 597 (App. Div.), certif. denied, 185 N.J. 296, 884 A.2d 1266 (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, 99 A.3d 782.
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, 69 A.3d 559 (2013). This state‘s “open-file 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
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, 752 A.2d 735 (App. Div. 2000) (emphasis added). But cf.
Four categories of
(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, 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[.]
[
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, 354 A.2d 627 (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, 575 A.2d 435 (1990); Carter, supra, 69 N.J. at 429-30, 434, 354 A.2d 627.
While discovery in criminal cases is broad, it is not unlimited. State v. D.R.H., 127 N.J. 249, 256, 604 A.2d 89 (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, 514 A.2d 1287 (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, 99 A.3d 782. 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, 99 A.3d 782 (quoting
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
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. See
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 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, 132 A.3d 1207 (2016) (quoting State v. Parsons, 341 N.J. Super. 448, 458, 775 A.2d 576 (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
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, 752 A.2d 735.
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 investigations. But such statements would not be admissible under
Defendants also claim that documents in the unrelated investigations may be necessary to refresh the Witness‘s recollection,
C.
The informant‘s privilege,
We recognize that the trial court ordered the redaction of names and locations from documents in the unrelated investiga-tions. 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 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
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.