New Jersey DWI Attorney John Menzel

What Is Discovery In A Criminal Case?


Discovery is that process before a trial when each side is entitled to find out what evidence they have. In the case of criminal discovery, the defendant has an absolute right to all exculpatory evidence whether requested or not and a right to specifically requested evidence in various categories including scientific or medical tests; this would include things like breath tests or blood tests in a DWI case. The defendant has no obligation to provide what they call reciprocal discovery unless the defense intends to present an affirmative defense. The state has the entire burden of proving each element of an offense against the defendant and if the state has established all elements, they have a prima facie case–i.e., a case with enough evidence to get a conviction. Defendants have the right, however, to present an affirmative defense which is a defense that tends to negate one of the elements or a justification for one of the elements. If the defendant intends to present an affirmative defense, their evidence should be provided to the State within a reasonable time before the trial.

Are Discovery Rules The Same For Misdemeanor And Felony Cases?

In New Jersey, discovery rules for traffic and disorderly persons offenses on the one hand and criminal cases on the other are similar, but not the same. One difference: In criminal cases, discovery from the State is almost automatically. But in municipal courts, discovery is triggered by a request for discovery to the prosecutor. Usually, defendants will request discovery as a matter of course. In only very limited situations would a defendant lay in wait and not request discovery so as to present an affirmative defense without providing any notice to the state. Nonetheless, discovery is still subject to the discretion of the presiding judge, and consequently, the desires of the party can be, to some extent, overridden within constitutional bounds. For example, one constitutional restriction is that the defense can never be compelled to put on evidence. If that happens it creates what we call reversible error–that is, a reason for an appellate court to overturn a conviction. Such an error would result in reversal whether the case was a criminal case in Superior Court or a DWI or other traffic violation in a municipal court.

When Does Discovery Typically Become Available?

Under our rules, discovery should be provided within 10 days of the request to the municipal prosecutor. That rule, more often than not, is honored in the breach than in the observance. It’s not uncommon for cases to go for months before discovery is provided, resulting in an adjournment request by the defense. We often request adjournments ahead of time to avoid unnecessary court appearances. But after a while, speedy trial concerns creep in, and we will request an appearance to assert our speedy trial rights. Otherwise, in normal cases, discovery will be provided usually within a few weeks. We use that first court appearance as a case management conference where the judge will determine where the parties stand, whether the discovery is complete, and whether the parties are ready to go to trial.

Does A Defendant Have To Enter A Plea Of Guilty Or Not Guilty Prior To Discovery Being Received?

Customarily, defendants will plead not guilty to everything. In the rare cases where the defendants do not enter a plea, the judges will automatically enter a plea of not guilty recognizing the fact that the state retains the burden of proving every element of the offense beyond a reasonable doubt. The default is always for a not guilty plea at the first appearance.

Are Discovery Rules Really Intended To Help Defendants At Trial?

Criminal discovery is a lot more limited than discovery in the civil cases. In civil cases, discovery is permitted for information that may tend to reveal relevant evidence. In criminal cases, however, there are more well-defined categories, and discovery is usually limited to just those categories. Still, because of the State’s obligation to provide exculpatory evidence, creative attorneys can make arguments for many types of discovery that might not at first glance appear to be relevant to the judge. We do that a lot in drunk driving cases.

One example has to do with laboratory scandals that have occurred recently. There was a time when reference solutions used in breath testing were just assumed to be good. When we heard of laboratory scandals where tests were not being done properly or even not at all, that created a need to request underlying documentation proving that the references solutions were, in fact, being tested. So far, those solutions seem to be passing muster. But the need to make those requests would have been more difficult to justify in previous days before the scandals became public. Even now, such discovery is still granted only in the judge’s discretion, so that if you have a conservative or state-oriented judge, that type of discovery may still be denied. Still, we ask for it. As a defense attorney, part of our job is to make the state’s attorney prove everything they need to prove in order to get a conviction and make it as difficult as possible for the prosecution to convict the defendant.

For more information on Discovery In New Jersey Criminal Cases, 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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