New Jersey DWI Attorney John Menzel

How Difficult Is It For A Defendant To Obtain Discovery Without An Attorney?


It’s probably a bit more difficult for a defendant to obtain discovery without an attorney. Our court rules in New Jersey, at least in municipal court cases, require that such discovery requests be made through the trial bench who then order the discovery provided pursuant to the court order. It’s a step that we don’t have to take if you are an attorney making a request on behalf of a client. The rationale is that attorneys with their additional training and experience have a better idea of what is or is not relevant than a layperson may have. The judge acts as a filter for a pro se defendant, people representing themselves in municipal court proceedings. We don’t generally deal with that in the Superior Court because once a judge finds out a person is not represented, he or she will then either recommend that they apply for a public defender or pay an attorney after the fact. Only in motion may a person represent themselves in Superior Court once a judge has conducted a hearing to make sure that the person understands the risks associated with representing oneself without a lawyer. Those risks basically come into play because most pro se defendants do not know the court rules and have no understanding of what the legal proceedings are and how they work. Even in those cases where people are deemed to be able to afford an attorney but still choose to want to litigate on their own, frequently judges will appoint attorneys to provide assistance to that pro se defendant at trial if any legal questions come up.

Can A Prosecutor Spring New Evidence On A Defendant Like They Show On TV?

A prosecutor springing new evidence on a defendant like they show on TV is not supposed to happen. The idea behind the discovery is that if each side is aware of what evidence the other side has, then that will lead to more efficient dispositions by way of more guilty pleas and plea bargains. It may even streamline how a trial proceeds if discovery shows there are really one or two significant issues in dispute. If the prosecutor does introduce previously undisclosed evidence to the defense in the middle of a trial, how it’s handled will vary depending on whether it’s a jury trial or a bench trial with a judge. Jury trials are a little more nuanced; remedies include jury instructions, exclusion of evidence or even a mistrial. If a mistrial is caused because of the state’s fault, very often double jeopardy concerns will prevent a retrial. In municipal court, a judge probably has broader discretion because our case law assumes that judges, unlike jurors, can separate legal issues from factual issues more easily based on their training and experience as both lawyers and judges.

The law assumes a judge can compartmentalize the proceedings much more effectively than a jury may be able to. That being said, most of my trials in the DWI realm of New Jersey are bench trials and if discovery is revealed in the middle of a trial, the judge may exclude the offending evidence. The judge may also admit that evidence, although that may certainly be something subject to appeal. Another option for the judge is to grant a continuance or permit the defense more time for an expert to review that evidence. Another remedy is to impose monetary sanctions on the prosecutor. There are many different remedies available, provided they are exercised within constitutional limits. Usually what would happen is that the defense would be given some opportunity to rebut the surprising evidence. Depending on the severity of the failure to provide adequate discovery, it might even lead to exclusion of evidence or dismissal of the case.

Can My Case Be Dismissed If Prosecution Botches The Discovery Process?

Only in rare cases would a court dismiss a case if prosecution botches discovery. The more common remedies are to permit time or the defense to review the missing information and permit a defendant to consult with an expert to lead.

Additional Information On Discovery In A Criminal Case

Discovery can be detailed and varies from case to case. It’s difficult to make generalizations about all cases. One of the reasons you should hire a lawyer is simply because they deal with all these different nuances and scenarios that can arise. They can spot opportunities that may exist and can give advice about whether the defendant should settle or not.

For more information on Obtaining Discovery Without An Attorney, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (732) 899-1899 today.

John Menzel, J.D.

Learn your options - call me for your free, 20 min phone consultation (732) 899-1899

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