On May 2, 2017, the New Jersey Supreme Court beat back an attempt by prosecutors and a lower court judge to require a defendant to create and turn over evidence prior to trial over the defendant’s objection that doing so violated his right to remain silent. In State v. Tier, the Supreme Court clarified an issue that often causes a great deal of argument in the days leading up to criminal trials: the extent to which and in what form a defendant must provide the State with statements by witnesses who are expected to testify for the defense. In ruling for the defense, the Supreme Court provided criminal defendants with a valuable precedential opinion by which to combat overly-aggressive attempts by the State to shift the burden onto the defendant to produce evidence before trial.

State v. Tier concerns an issue of criminal procedure that had not previously been addressed by any court of appeals in New Jersey: the interpretation of Rule 3:13-3(b)(2)(C), which addresses a criminal defendant’s obligations to provide the State with discovery before trial. Though at first glance the opinion seems to concern a mundane issue of criminal procedure, it touches on the interplay of several important constitutional principles. On one hand, a defendant has a right to remain silent and “has an absolute, unqualified right to compel the State to investigate its own case, find its own witnesses, prove its own facts, and convince the jury through its own resources.” On the other hand, New Jersey courts have adopted a stated policy that favors the pre-trial sharing of information to avoid surprise and gamesmanship at trial. These principles often come into conflict as the State puts pressure on the trial court to preview the defense before it is entered at trial, arguing that the trial will be delayed by surprise evidence.

The trial judge in Tier, over a defense objection, ordered the defendant’s attorney to create written summaries of defense witness statements that had been communicated orally to defense counsel and to provide the summaries to the State before the start of trial. The defendant appealed, arguing that the judge’s order exceeded the mandate of Rule 3:13-3(b)(2)(C). Rule 3:13-3(b)(2)(C) provides that the defendant must provide the State with “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.” On appeal, the Supreme Court found that the trial judge misinterpreted the plain language of Rule 3:13-3(b)(2)(C), which must be interpreted narrowly to protect a defendant’s constitutional rights. The Court said that a defendant is obligated to provide the State only with pre-existing written statements by its witnesses who are expected to testify, but that defendants are not obligated to reduce oral statements to writing for the benefit of the State.

A similar issue had previously been decided by the Supreme Court in 1979 in State v. Williams: whether defense witness summaries already in existence were required to be disclosed if the defendant had no intention of using them at trial. In that case, the Supreme Court also ruled in favor of the defendant, placing no duty on the defendant to produce those documents. The Court felt that to place such a burden on a defendant “would chill the defense’s investigation and infringe on the defendant’s right to effective assistance of counsel.”

These two Supreme Court opinions, taken together, clearly delineate the circumstances under which a defendant must turn over witness statements to the State prior to trial. They also provide valuable guidance to defense attorneys who, in preparing for trial, should be making reasoned, strategic decisions as to whether to reduce witness statements to writing.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with white collar crimes, domestic violence, drug crimes and criminal charges. Mr. Olesnycky’s cases have been widely covered in the news, including the New York Times, CBS This Morning, NBC4 New York, the Associated Press, the Boston Globe, NJ.com, the Star Ledger, and ESPN. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at ao@sgdefenselaw.com.