State v. Lixandra Hernandez and Jose Sanchez(075444)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).

State v. Lixandra Hernandez and Jose G. Sanchez (A-39-14) (075444)

Argued January 5, 2016 -- Decided June 28, 2016

ALBIN, J., writing for a unanimous Court.
In this appeal, the Court considers whether criminal defendants have a right to discovery of the files in
unrelated cases involving the same cooperating witness.
The State alleges that on three occasions in 2011, defendants sold more than five ounces of cocaine to a
witness cooperating with law enforcement officials. Defendants were arrested a year after the last alleged
transaction. In the interim, the cooperating witness (the Witness) assisted the State in a number of other drug
investigations and prosecutions. The State provided discovery to defense counsel that included the name of the
Witness, his criminal history, his cooperation and plea agreements with the State, and copies of audiotapes that
allegedly contained the recordings of defendants’ transactions with the Witness. 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 agreement also provides for sentence reductions for each
successful prosecution of three targeted individuals on charges of leader of a narcotic trafficking network and each
successful prosecution of two targeted individuals for distribution of PCP. The cooperation agreement will be void
if the Witness knowingly provides false information, intentionally overstates or understates the involvement of other
individuals in the targeted investigations, or should he be knowingly untruthful, false, incomplete or misleading in
relation to those investigations.
Defendants made discovery demands for information relating to the Witness’s cooperation with the State in
other investigations and prosecutions. The State responded that the defense had not shown that the information was
relevant. The trial court ordered the State to produce all of the documents in the unrelated investigations for an in
camera review. During the hearing, defendants narrowed their discovery demand to: (1) statements of the
cooperating witness and investigative reports in each matter identified by the State in which the witness provided
information; (2) suStatmmaries of any interviews of the cooperating witness in any matter; (3) tape recordings and
CDs of the cooperating witness; and (4) a privilege log of the internal memoranda and e-mails in this case and the
three other Division of Criminal Justice investigations. The State objected, but complied with the court’s order. The
court concluded that the information produced was not relevant or admissible in defendants’ case, but was
discoverable because it might lead to relevant or admissible evidence. The State expressed its concern that the
Witness could face retaliation if his identity were to be revealed to the targets of the unrelated investigations and
invoked the informant’s privilege to attempt to shield his name from disclosure. The court did not find the
informant’s privilege applicable and ruled that the 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. The court ordered redactions of names and locations from disclosed documents and
entered a protective order stating that the defense attorneys could not discuss the documents with anyone other than
their clients. The State moved for leave to appeal and for a stay of the trial court’s discovery order.
In an unpublished opinion, the appellate panel affirmed the trial court’s discovery order and rejected the
State’s claim that the Witness was entitled to the protection of the informant’s privilege or that potential harm might
come to the Witness by the disclosures. The Court granted the State’s motions for leave to appeal and for a stay
pending appeal. 220 N.J. 564 (2015).
HELD: Although the discovery rule generally requires that the State provide all evidence relevant to the defense of
criminal charges, it does not open the door to foraging through files of other cases in search of relevant evidence.
The discovery ordered by the trial court and Appellate Division exceeds the limits of Rule 3:13-3(b) and is not
supported by this Court’s jurisprudence.
1. An accused has a right to broad discovery after the return of an indictment in a criminal case. Rule 3:13-3(b)
states that discovery shall include exculpatory information and relevant material. Discovery in a criminal case is
appropriate if it will lead to relevant information. Evidence is relevant if it has a tendency in reason to prove or
disprove any fact of consequence to the determination of the action. 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. 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. While discovery in
criminal cases is broad, it is not unlimited. Nevertheless, 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.
However expansive the discovery rule and this Court’s jurisprudence may be, they do not sanction rummaging
through irrelevant evidence. (pp. 14-17)
2. Here, the State’s case is based on a cooperating witness who has given assistance to law enforcement in a number
of criminal investigations. 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. In other words, the Attorney General has opened
its investigative file in this case. The question, therefore, is whether defendants are entitled to open-file discovery of
unrelated cases because the present case and the unrelated cases share a common thread -- the same cooperating
witness. (pp. 18-19)
3. Defendants have a right to expose the bias of the Witness for the purpose of undermining his credibility before the
jury. 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 has also 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. 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 before this Court, the State conceded that its discovery obligations required
the disclosure of such material false statements. Defendants, however, do not want to rely on the State to turn over
exculpatory information. They insist that they have the right under the discovery rules to sift through the files in the
unrelated investigations in search of false and contradictory statements. At this stage, however, defendants have not
articulated how the disclosure of documents in the unrelated investigations will lead to relevant or admissible
evidence. (pp. 19-21)
4. Defendants claim that they are entitled to false and inconsistent statements made by the Witness in the unrelated
investigations. Such statements would not be admissible under N.J.R.E. 608 because evidence of specific instances
of conduct -- other than a prior conviction -- to prove the character trait of untruthfulness is prohibited. This rule
was designed to prevent unfair foraging into the witness’s past and to prevent wide-ranging collateral attacks on the
general credibility of a witness that would cause confusion of the true issues in the case. Defendants also claim that
documents in the unrelated investigations may be necessary to refresh the Witness’s recollection under N.J.R.E. 612,
but such a vague discovery request is not tied to a specified demand for information that meets the threshold of
relevance. Defendants further claim that discovery is necessary to uncover false criminal accusations against others
that would be admissible under N.J.R.E. 608. However, defendants have not made any showing that the Witness
has made false criminal accusations against others. An open-ended search of unrelated investigative files in the
hope that something may turn up that has impeachment value is not sanctioned by the discovery rule or this Court’s
jurisprudence. (pp. 21-22)
5. The informant’s privilege permits a witness to refuse to disclose the identity of a confidential informant unless the
judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b)
disclosure of his identity is essential to assure a fair determination of the issues. The State has legitimate concerns
for the safety of witnesses. The disclosure of the Witness’s identity in this case is necessary because he will testify
against defendants. The potential threat to his life, however, would increase exponentially if his identity were
revealed to the targets in the unrelated drug investigations. At least at this stage, the disclosure of the Witness’s
identity in the unrelated investigations is not necessary for defendants to receive a fair trial. 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. (pp. 23-24)

The judgment of the Appellate Division is REVERSED. The discovery order is VACATED and the
matter is REMANDED 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.

2
 SUPREME COURT OF NEW JERSEY
A-39 September Term 2014
075444

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

LIXANDRA HERNANDEZ and JOSE
G. SANCHEZ,

Defendants-Respondents.

Argued January 5, 2016 – Decided June 28, 2016

On appeal from the Superior Court, Appellate
Division.

Carol M. Henderson, Assistant Attorney
General, argued the cause for appellant
(John J. Hoffman, Acting Attorney General of
New Jersey, attorney).

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 Rule 3:13-3. This open-file

approach is intended to ensure fair and just trials. Here, the

1
issue is not whether defendants have a right to discovery of the

prosecutor’s file in their case, but whether they have a right

to discovery of the files in unrelated cases involving the same

cooperating witness.

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 Rule 3:13-3(b) and is

not supported by our jurisprudence. Although our discovery rule

generally requires that the State provide all evidence relevant

to the defense of criminal charges, it does not open the door to

2
foraging through files of other cases in search of relevant

evidence. The only information discoverable in the unrelated

cases that is relevant to the defense at this point are the

cooperation agreements between the State and the Witness and any

violations of the agreements, such as material false statements

made by the Witness and known to the State. The discovery order

here requires disclosure of information not mandated by our

discovery rule -- information that has no ostensible relevance

to the case to be tried.

Accordingly, we reverse the judgment of the Appellate

Division and remand for proceedings consistent with this

opinion.

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,

N.J.S.A. 2C:5-2; first-degree distribution of more than five

ounces of cocaine, N.J.S.A. 2C:35-5(a)(1), (b)(1), (c), and

N.J.S.A. 2C:2-6; second-degree distribution of cocaine within

500 feet of a public park, N.J.S.A. 2C:35-7.1 and N.J.S.A. 2C:2-

6; and third-degree possession of cocaine, N.J.S.A. 2C:35-

10(a)(1) and N.J.S.A. 2C:2-6.

3
 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

4
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), N.J.S.A. 2C:43-7.2.

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 PCP, and further sentence

1 The Witness’s plea agreement with the State indicates that, in
exchange for his plea of guilty to racketeering and conspiracy
to commit robbery and burglary, the remaining charges will be
dismissed. The cooperation agreement does not refer to a
sentence recommendation on the conspiracy charge.
5
reductions for convictions of lesser offenses. The State has

further promised to amend the agreement to give the Witness

credit for cooperation leading to the indictment of persons

involved in other criminal schemes.

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:

1. 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.

2. Notes and documentations of all contacts
between and amongst [the Witness] and any
member of law enforcement for the state of New
Jersey.

3. Any and all communications [including
emails] from the attorney for [the Witness] to
any member of law enforcement and/or the

6
 Attorney General’s office regarding his
cooperation and/or plea agreement.

4. Any and all statements [including emails]
made in proffers or disclosures made by [the
Witness] in furtherance of his cooperation
agreement.

5. 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:

1. Statements of the cooperating witness and
investigative reports in the four matters
identified by the State in which the witness
provided information.

2. Summaries of any interviews of the
cooperating witness in any matter.

3. Tape recordings and CDs of the cooperating
witness.

4. A privilege log of the internal memoranda
and e-mails in this case and the three other
Division of Criminal Justice investigations.

7
 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 death if his identity were to be

revealed to the targets of the unrelated investigations. The

State invoked the informant’s privilege, N.J.R.E. 516, in an

attempt to shield his name from disclosure. The court did not

find the informant’s privilege applicable.

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

8
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.

2 The court indicated that relief would be granted to the State
if the electronic email search became unduly burdensome.
3 The signed discovery order entered by the trial court provides
that “subject to the appropriate redactions and the entry of a
Protective Order as set forth on the record February 10,
2014[,]” “[t]he State must release documents and other materials
in its possession related to [the Witness],” but not “documents
or materials related . . . to ongoing investigations.” The
February 10 record of the discovery proceeding is not a model of
clarity. A written discovery order that is detailed and
specific will assist not only the parties in understanding their
respective obligations, but also appellate review.
9
 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 Rule 3:13-3 and that

substantial deference must be paid to the trial court’s

evidentiary rulings. It observed that the discovery request was

narrowed to “e-mails, the three other [Division of Criminal

Justice] investigations, and statements and summaries involving

[the Witness],” and “a privilege log detailing internal

memoranda.” The panel concluded that the “discovery is

rationally related to defendants’ right to confront a key state

witness as to potential bias, prejudice or motive and is

relevant for that purpose.” It rejected the State’s claim that

the Witness was entitled to the protection of the informant’s

privilege, N.J.R.E. 516, or that potential harm might come to

the Witness by the disclosures, reasoning that the Witness’s

“identifying information has already been provided in this case

as well as in other criminal prosecutions.” Last, the panel

indicated that the “discovery order was tailored to [the

Witness’s] involvement in other investigations referenced in the

cooperation agreements” and that the “court stated if the

electronic search produced thousands of documents the request

would be narrowed.”

10
 We granted the State’s motions for leave to appeal and for

a stay pending appeal. State v. Hernandez, 220 N.J. 564 (2015).

The Association of Criminal Defense Lawyers of New Jersey (ACDL)

was granted leave to participate as amicus curiae before the

Appellate Division, and therefore was permitted, “without

seeking further leave,” to appear before this Court. See R.

1:13-9(d).

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

11
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

12
given to the Witness, N.J.R.E. 607, expose any inconsistent

statements, N.J.R.E. 613, refresh the Witness’s recollection

with a writing, N.J.R.E. 612, and probe the Witness’s character

for truthfulness and for any false accusation he may have made,

N.J.R.E. 608. Finally, defendants contend that the State bears

the burden of producing discovery in its possession, however

onerous that may be, and that the documents ordered to be

disclosed “are already available, and in some cases already

organized.”

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, is often unreliable, particularly in light of the

promises of lenient treatment or compensation that these

witnesses receive.” It submits that the discovery order “was

carefully tailored to provide important impeachment material but

not to tread on ongoing State investigations.” The ACDL posits

that “the statements of a [cooperating witness] in other similar

investigations . . . are . . . very likely to reveal exculpatory

or impeachment evidence that will be crucial to the effective

cross-examination of that witness.” Additionally, the ACDL

maintains that the court’s ordering of the redaction of names

13
and locations from documents in unrelated investigations in

which the cooperating witness’s identity has not been revealed,

and the entry of a protective order, address and mitigate any

potential for reprisal against the Witness.

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 (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 (2011) (quoting

Rivers v. LSC P’ship, 378 N.J. Super. 68, 80 (App. Div.),

certif. denied, 185 N.J. 296 (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.

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 (2013). This state’s “open-file

14
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 Rule 3:13-3(b), which

states that “[d]iscovery shall include exculpatory information

or material” and “relevant material,” including all items set

forth in ten separate categories.

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 (App. Div. 2000) (emphasis

added). But cf. R. 4:10-2(a) (stating that discovery in civil

cases extends to information that “appears reasonably calculated

to lead to the discovery of admissible evidence” (emphasis

added)). “Relevancy is the hallmark of admissibility of

evidence.” State v. Darby, 174 N.J. 509, 519 (2002). Evidence

is relevant if it “ha[s] a tendency in reason to prove or

disprove any fact of consequence to the determination of the

action.” N.J.R.E. 401.

Four categories of Rule 3:13-3(b), requiring the disclosure

of relevant material to the defense, are directly germane to

this case:

(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,

15
 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[.]

[R. 3:13-3(b)(1)(E)-(H).]

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 (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 (1990);

Carter, supra, 69 N.J. at 429-30, 434.

16
 While discovery in criminal cases is broad, it is not

unlimited. State v. D.R.H., 127 N.J. 249, 256 (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 (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. 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

(quoting R. 3:13-3(b)(1)(E)). We did so, notwithstanding the

intrusion into the alleged victim’s privacy rights, because the

inspection would lead to relevant evidence -- an understanding

of the layout of the crime scene -- and was necessary to protect

the juvenile’s right to a fair trial. Id. at 556-62. However

expansive our discovery rule and jurisprudence may be, they do

not sanction rummaging through irrelevant evidence.

17
 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 that he faced,

including first-degree racketeering. The Witness’s cooperation

agreement details the charge and sentence reductions he will

receive for his assistance to law enforcement in this case and

in a number of other criminal investigations. In at least some

-- if not all -- of those other investigations, his identity

still has not been disclosed to ensure his safety.4

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

4 The lack of specificity in the record prompts our caution in
not making an unqualified assertion.
18
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 R. 3:13-3(b). In other words, the

Attorney General has opened its investigative file in this case.

The question, therefore, is whether defendants are entitled to

open-file discovery of unrelated cases because the present case

and the unrelated cases share a common thread -- the same

cooperating witness.

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

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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 (2016) (quoting State v. Parsons, 341 N.J. Super.

448, 458 (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 before this Court, the State conceded that its

discovery obligations required the disclosure of such material

false statements.

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 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.

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

5 In Brady, supra, the United States Supreme Court held that due
process forbids the government from withholding material
evidence favorable to an accused that has been requested by the
defense. 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at
218. The disclosures required by Rule 3:13-3(b)(1), which
include the release of exculpatory information or material and
all other information relevant to a legitimate defense, are more
expansive than the due process disclosures mandated by Brady and
its progeny.
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investigations. But such statements would not be admissible

under N.J.R.E. 608 because “evidence of specific instances of

conduct -- other than a prior conviction -- to prove the

character trait of untruthfulness is prohibited.” State v.

Guenther, 181 N.J. 129, 140 (2004). This rule “was designed to

prevent unfair foraging into the witness’s past” and to prevent

“wide-ranging collateral attacks on the general credibility of a

witness [that] would cause confusion of the true issues in the

case.” Id. at 141-42.

Defendants also claim that documents in the unrelated

investigations may be necessary to refresh the Witness’s

recollection, N.J.R.E. 612, but such a vague discovery request

is not tied to a specified demand for information that meets the

threshold of relevance. Defendants further claim that discovery

is necessary to uncover false criminal accusations against

others that would be admissible under N.J.R.E. 608. In

Guenther, supra, we held that “in limited circumstances and

under very strict controls a defendant has the right to show

that a victim-witness has made a prior false criminal accusation

for the purpose of challenging that witness’s credibility.” 181

N.J. at 154-58. But defendants have not made any showing that

the Witness has made false criminal accusations against others

that would entitle them to scour through nine banker’s boxes of

unrelated investigations in which the Witness has cooperated.

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An open-ended search of unrelated investigative files in the

hope that something may turn up that has impeachment value is

not sanctioned by our discovery rule or jurisprudence.

C.

The informant’s privilege, N.J.R.E. 516, permits a witness

to refuse to disclose the identity of a confidential informant

“unless the judge finds that (a) the identity of the person

furnishing the information has already been otherwise disclosed

or (b) disclosure of his identity is essential to assure a fair

determination of the issues.” The State has legitimate concerns

for the safety of witnesses who are considered “snitches” or

“rats.” The disclosure of the Witness’s identity in this case

is necessary because he will testify against defendants. The

potential threat to his life, however, would increase

exponentially if his identity were revealed to the targets in

the unrelated drug investigations. At least at this stage, we

cannot find that the disclosure of the Witness’s identity in the

unrelated investigations is necessary for defendants to receive

a fair trial in this case. See State v. Milligan, 71 N.J. 373,

384 (1976) (noting that disclosure depends on balancing of

factors, “taking into consideration the crime charged, the

possible defenses, the possible significance of the informer’s

testimony, and other relevant factors” (quoting Roviaro v.

23
United States, 353 U.S. 53, 62, 77 S. Ct. 623, 628, 1 L. Ed. 2d

639, 646 (1957))).

We recognize that the trial court ordered the redaction of

names and locations from documents in the unrelated

investigations. 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

24
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 Rule 3:13-

3(b) and is not supported by our jurisprudence.

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.

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