RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1891-16T2
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
February 8, 2017
v.
APPELLATE DIVISION
HABEEB ROBINSON,
Defendant-Respondent.
_____________________________________
Argued January 31, 2017 – Decided February 8, 2017
Before Judges Reisner, Koblitz and Rothstadt.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Complaint-
Warrant No. W20160256160714.
Frank J. Ducoat, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for appellant (Carolyn A. Murray,
Acting Essex County Prosecutor, attorney; Mr.
Ducoat, of counsel and on the brief).
Elizabeth C. Jarit, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender, attorney;
Ms. Jarit, of counsel and on the brief).
Claudia Joy Demitro, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General (Christopher S. Porrino, Attorney
General, attorney; Ms. Demitro, of counsel and
on the brief).
Alexander Shalom argued the cause for amicus
curiae American Civil Liberties Union of New
Jersey Foundation (Mr. Shalom, Edward L.
Barocas and Jeanne LoCicero, on the brief).
The opinion of the court was delivered by
REISNER, P.J.A.D.
In this appeal, we address the scope of the discovery which
the State must produce prior to a pretrial detention hearing held
under the Bail Reform Act (Act), N.J.S.A. 2A:162-15 to -26. Rule
3:4-2(c)(1)(B), which was part of a comprehensive set of rule
amendments adopted to implement the Act, provides:
[I]f the prosecutor is seeking pretrial
detention, the prosecutor shall provide the
defendant with all statements or reports in
its possession relating to the pretrial
detention application. All exculpatory
evidence must be disclosed.
[R. 3:4-2(c)(1)(B).]
This appeal primarily focuses on the meaning of the phrase
"relating to the pretrial detention application."1
In this case, defendant was arrested on January 4, 2017, and
charged with murder based on an affidavit of probable cause
reciting that two eyewitnesses saw defendant shoot the victim, and
1
In this case, the State acknowledged its obligation to provide
"[a]ll exculpatory evidence," Rule 3:4-2(c)(1)(B), and provided
defense counsel with defendant's statement to the police. The
"exculpatory evidence" provision is not at issue in this appeal
and therefore the opinion will not address that requirement.
2 A-1891-16T2
the witnesses identified defendant from a photo array. The
Preliminary Law Enforcement Information Report (PLEIR)2 also
stated that the police had surveillance video footage relevant to
the commission of the crime. The defense asked for those
documents, and the State refused to provide them.
As a result, the January 10, 2017 pretrial detention hearing
devolved into a dispute over discovery, with the State insisting
that its discovery obligation was limited to producing the probable
cause affidavit and the PLEIR. Judge Ronald D. Wigler rejected
that argument. Instead, keying the State's discovery obligation
to the evidence referenced in the probable cause affidavit and
related information listed in the PLEIR, Judge Wigler required the
prosecutor to produce as discovery the two eyewitness statements,
the photo array, and the surveillance video listed in the PLEIR.
2
In a comprehensive directive aimed at guiding law enforcement
agencies to implement and comply with the Act, the Attorney General
directed the creation of the PLEIR form, as a means by which law
enforcement officers could quickly summarize the evidence in their
possession. Att'y Gen. Law Enf't Directive No. 2016-6, Oct. 11,
2016. The PLEIR was intended to "succinctly describe[] the
relevant factual circumstances pertaining to the offense for which
the defendant was arrested and the basis for the arresting
officer's belief that probable cause exists." Id. at 48. The
PLEIR was also intended to "inform the prosecutor's decision
whether to file a motion for pretrial detention." Ibid. On the
face of the document, the PLEIR recites that it must accompany the
probable cause affidavit and is deemed to be incorporated by
reference into the affidavit.
3 A-1891-16T2
He also ordered the State to turn over any initial police reports
that related to the application.
We conclude that Judge Wigler correctly interpreted Rule 3:
4-2(c)(1)(B). The State's argument, which it repeats on this
appeal, is contrary to the plain language and textual context of
the rule, as well as its purpose. The State's contention is also
directly contrary to the position it asserted before the Criminal
Practice Committee - including the version of the rule the State
advocated - during the Committee's comprehensive review of Court
Rule amendments needed to implement the Act. The State's
submissions were included in the Committee's report to the Supreme
Court and thus became part of the legislative history of section
(B) as adopted by the Court. See Rep. of the Sup. Ct. Comm. on
Criminal Practice on Recommended Court Rules to Implement the Bail
Reform Law, Part 1, Pretrial Release (May 9, 2016) (CPC Report).
We conclude that Judge Wigler correctly interpreted the rule
as entitling a defendant to discovery of the factual materials on
which the State bases its application for defendant's pretrial
detention, and not merely the hearsay description of those
materials set forth in the probable cause affidavit and the PLEIR.
We reject the State's contention that it need only produce
the materials described in the affidavit if it says it relies on
them. Clearly, the State relies on the affidavit to establish
4 A-1891-16T2
probable cause, and therefore, the materials described by hearsay
in the affidavit "relate" to the detention application. R. 3:4-
2(c)(1)(B). Moreover, the trial court cannot be expected to
ignore what is set forth in the probable cause affidavit in
considering the weight of the State's evidence, N.J.S.A. 2A:162-
20(a), and the defense cannot meaningfully respond to the
application without seeing at least the most critical evidence
supporting the State's allegations.
In this case, the State alleged that defendant committed a
murder in view of two eyewitnesses and a surveillance camera. The
State's probable cause affidavit turned on identification of
defendant as the shooter, and thus the required discovery would
be the materials "relating to" that aspect of the State's motion.
R. 3:4-2(c)(1)(B). We agree with Judge Wigler that defendant was
entitled to discover the statements of the two eyewitnesses; the
photo array described in the probable cause affidavit as having
been used in the identification process; the surveillance video;
and the initial police reports of the crime. Accordingly, we
affirm the January 10, 2017 discovery order.3 We also vacate the
3
We granted the State's motion for leave to appeal from the January
10, 2017 order. Defendant did not cross-move for leave to appeal
from the order. We note that the order, which the prosecutor
drafted, directs the State to produce the documents described
above, plus any other discovery "related to" its application,
5 A-1891-16T2
stay of the order that was entered pending appeal, and remand this
case to the trial court to complete discovery and hold the
detention hearing forthwith.4
Finally, we understand that, because of the expedited nature
of the pretrial detention hearing process, all parties need clear
guidance as to the State's discovery obligations. In particular,
the State needs to know with some specificity what documents it
must produce when it files its detention application, an event
that will usually occur shortly after defendant's arrest. At oral
argument, defendant and the amicus American Civil Liberties Union
agreed that under the Rule, the State's initial discovery
obligation is limited to the materials in the State's possession
that are referenced in the probable cause affidavit and the related
without listing those materials. The parties did not specify
other documents to which the order applies. For future reference,
if it is necessary for the court to order the State to produce
discovery, the order should list with specificity the documents
the State must produce.
4
The probable cause affidavit stated that the witnesses were
fearful, but the State did not apply to Judge Wigler for a
protective order limiting discovery due to concerns for witness
safety. At oral argument, in response to our inquiry about its
underlying policy concerns, the State did not even mention the
protection of witnesses. We infer that the State is aware of its
right to apply for a protective order, in camera review of
evidence, or other relief in a case that presents a genuine issue
as to the protection of witnesses. See In re N.H., 226 N.J. 242,
256 (2016).
6 A-1891-16T2
materials listed in the PLEIR.5 That is consistent with our
interpretation of the Rule.
To be clear, if such materials are in the possession of the
police, they are in the State's possession and the prosecutor must
produce them. See State v. Womack, 145 N.J. 576, 589, cert.
denied, 519 U.S. 1011, 117 S. Ct. 517, 136 L. Ed. 2d 405 (1996);
State v. Mustaro, 411 N.J. Super. 91, 102 (App. Div. 2009). We
expect that all parties will act cooperatively in implementing
Rule 3:4-2(c)(1)(B), and that they will use available electronic
communication methods to promptly produce and receive discovery.
While there may be occasional glitches in producing discovery,
those should be the exception rather than the rule, to avoid
delaying the pretrial detention hearings and compromising the
rights of defendants.
I
Because this is the first opinion to address an issue under
the Bail Reform Act, it will be helpful to review the history and
content of the Act to put the legal issues in context.
5
At oral argument, the parties acknowledged that the trial court
has discretion to order additional discovery. That issue is not
presented here, however, and we need not address it.
7 A-1891-16T2
The Constitutional Amendment and the Bail Reform Act
Effective January 1, 2017, the voters of New Jersey approved
a constitutional amendment providing a right to pretrial release,
but authorizing pretrial detention under certain limited
circumstances, N.J. Const. art. I, ¶ 11:
All persons shall, before conviction, be
eligible for pretrial release. Pretrial
release may be denied to a person if the court
finds that no amount of monetary bail, non-
monetary conditions of pretrial release, or
combination of monetary bail and non-monetary
conditions would reasonably assure the
person's appearance in court when required,
or protect the safety of any other person or
the community, or prevent the person from
obstructing or attempting to obstruct the
criminal justice process. It shall be lawful
for the Legislature to establish by law
procedures, terms, and conditions applicable
to pretrial release and the denial thereof
authorized under this provision.
[N.J. Const. art. I, ¶ 11 (amended effective
2017).]
To meet this constitutional mandate, and its shift from a
pretrial system based on the right to bail, New Jersey adopted a
risk-based approach unrelated to a defendant's ability to pay. As
codified by the Bail Reform Act, the new system favors pretrial
release and monitoring as the presumptive approach and limits
preventive detention to defendants who actually warrant it. By
permitting judges to keep high-risk defendants detained without
bail, and to release with or without conditions those defendants
8 A-1891-16T2
who pose little risk of flight or of committing another offense,
these constitutional and legislative changes represent a major
reform to criminal justice that will promote public safety and
fairness.
Historically, in New Jersey, individuals had a constitutional
right to bail before trial in all criminal cases, "except for
capital offenses when the proof is evident or the presumption
great." N.J. Const. art. I, ¶ 11; N.J. Const. of 1844 art. I, ¶
10. Although this fundamental right to bail was first incorporated
into the New Jersey Constitution in 1844, it existed by statute
prior to the 1776 Constitution. State v. Johnson, 61 N.J. 351,
354 (1972) (citing Leaming & Spicer, Grants and Concessions of New
Jersey, 1664-1702 235 (1881)).
The constitutional amendment approved by voters in November
2014 arose from the recognition that a sizable number of pretrial
defendants stayed in jail before trial because of their inability
to pay relatively small amounts of bail. Pub. Hearing before
Senate Law and Pub. Safety Comm., Senate Concurrent Resol. 128,
at 2 (July 24, 2014), http://www.njleg.state.nj.us/
legislativepub/pubhear/slp 07242014.pdf (Public Hearing). The
reliance on bail also led to the pretrial release of high-risk
defendants without appropriate individual assessments. Public
9 A-1891-16T2
Hearing, supra, at 1-2. The 2014 constitutional amendment was
intended to address these issues.
In 2014, the Legislature adopted a new law to take effect on
the same day as the constitutional amendment. Effective on January
1, 2017, the Bail Reform Act established reforms for bail and
other forms of pretrial release and for pretrial detention,
established statutory speedy trial deadlines, and made other
changes to court administration and court-related programs. See
Statement to S. 946 (July 31, 2014).
The three-fold purpose of the Bail Reform Act is to primarily
rely upon pretrial release by non-monetary means "to reasonably
assure an eligible defendant's appearance in court when required,
the protection of the safety of any other person or the community,
[and] that the eligible defendant will not obstruct or attempt to
obstruct the criminal justice process." N.J.S.A. 2A:162-15. The
Act further seeks to assure that "the eligible defendant will
comply with all conditions of release, while authorizing the court,
upon motion of a prosecutor, to order pretrial detention . . .
when it finds clear and convincing evidence that no condition or
combination of conditions can reasonably assure the effectuation
of these goals." N.J.S.A. 2A:162-15. Under the statute, a court
may set monetary bail "only when it is determined that no other
conditions of release will reasonably assure the eligible
10 A-1891-16T2
defendant's appearance in court when required." N.J.S.A. 2A:162-
15. For purposes of bail reform, an eligible defendant means "a
person for whom a complaint-warrant is issued for an initial charge
involving an indictable offense or a disorderly persons offense
unless otherwise provided" in the statute. N.J.S.A. 2A:162-15.
The Bail Reform Act provides that an eligible defendant,
following the issuance of a complaint-warrant, will be temporarily
detained to allow the Pretrial Services Program (PSP) the
opportunity to "prepare a risk assessment with recommendations on
conditions of release." N.J.S.A. 2A:162-16(a); see N.J.S.A.
2A:162-25. The court must make a pretrial release decision "in
no case later than 48 hours after the eligible defendant's
commitment to jail." N.J.S.A. 2A:162-16(b)(1). The court may
release a defendant on his or her own recognizance, or may order
the pretrial release subject to certain conditions. N.J.S.A.
2A:162-17.
If the prosecutor makes a motion for pretrial detention, the
eligible defendant must be detained in jail pending a pretrial
detention hearing. N.J.S.A. 2A:162-18, -19. The hearing must be
held no later than the defendant's first appearance, unless either
the eligible defendant or the prosecutor seeks a continuance, or
unless the prosecutor files the motion after the first appearance.
N.J.S.A. 2A:162-19(d). Upon filing of the prosecutor's motion,
11 A-1891-16T2
and during any continuance granted by the court, the eligible
defendant must remain in jail. N.J.S.A. 2A:162-19(d)(2). If the
eligible defendant was previously released from custody before
trial, the court must issue a notice to compel his or her
appearance at the hearing. N.J.S.A. 2A:162-19(d)(2).
At the pretrial detention hearing, the eligible defendant has
the right to counsel and, if financially unable to obtain adequate
representation, has the right to appointed counsel. N.J.S.A.
2A:162-19(e). The eligible defendant also has the right "to
testify, to present witnesses, to cross-examine witnesses who
appear at the hearing, and to present information by proffer or
otherwise." N.J.S.A. 2A:162-19(e)(1). At a hearing where there
is no indictment, the prosecutor must "establish probable cause
that the eligible defendant committed the predicate offense."
N.J.S.A. 2A:162-19(e)(2). In reaching its decision, the court may
consider certain information enumerated in N.J.S.A. 2A:162-20. A
pretrial detention order must include "written findings of fact
and a written statement of the reasons for the detention."
N.J.S.A. 2A:162-21(a). "If the court enters an order that is
contrary to a recommendation made in a risk assessment when
determining a method of release or setting release conditions, the
court shall provide an explanation in the document that authorizes
the eligible defendant's release." N.J.S.A. 2A:162-23(a)(2).
12 A-1891-16T2
When an eligible defendant is released from custody before
trial, and upon motion of a prosecutor the court finds the
defendant violated a restraining order or condition of release,
or finds probable cause to believe the defendant committed a new
crime while on release, it may not revoke the release and order
the defendant detained unless, after considering all relevant
circumstances, it "finds clear and convincing evidence that no
monetary bail, non-monetary conditions of release or combination
of monetary bail and conditions would reasonably assure" the three
primary purposes of the Act. N.J.S.A. 2A:162-24.
The Bail Reform Act also directs courts to calculate speedy
trial deadlines for eligible defendants who are subject to pretrial
detention ordered by a court or who remain in jail pretrial due
to the inability to post monetary bail imposed pursuant to the
Act. N.J.S.A. 2A:162-22. Not counting excludable time for
reasonable delays, an eligible defendant must not remain in jail
for more than 90 days prior to the return of an indictment, or 180
days following the return or unsealing of the indictment and before
the commencement of trial. N.J.S.A. 2A:162-22(a)(1), (a)(2). The
Bail Reform Act identifies thirteen periods to exclude in computing
the time in which a case must be indicted or tried. N.J.S.A.
2A:162-22(b).
13 A-1891-16T2
Detention Hearing Provisions in Greater Detail
The Act, N.J.S.A. 2A:162-19(a), grants the State the right
to file an application for pretrial detention when the State
charges the defendant with the following crimes or offenses:
(1) any crime of the first or second
degree enumerated under subsection d. of
section 2 of N.J.S.A. 2C:43-7.2;
(2) any crime for which the eligible
defendant would be subject to an ordinary or
extended term of life imprisonment;
(3) any crime if the eligible defendant
has been convicted of two or more offenses
under paragraph (1) or (2) of this subsection;
(4) any crime enumerated under paragraph
(2) of subsection b. of section 2 of N.J.S.A.
2C:7-2 or crime involving human trafficking
pursuant to section 1 of N.J.S.A. 2C:13-8 or
N.J.S.A. 52:17B-237 et al. when the victim is
a minor, or the crime of endangering the
welfare of a child under N.J.S.A. 2C:24-4;
(5) any crime enumerated under subsection
c. of N.J.S.A. 2C:43-6;
(6) any crime or offense involving
domestic violence as defined in subsection a.
of section 3 of N.J.S.A. 2C:25-19; or
(7) any other crime for which the
prosecutor believes there is a serious risk
that:
(a) the eligible defendant will not
appear in court as required;
(b) the eligible defendant will pose
a danger to any other person or the community;
or
14 A-1891-16T2
(c) the eligible defendant will
obstruct or attempt to obstruct justice, or
threaten, injure, or intimidate, or attempt
to threaten, injure or intimidate, a
prospective witness or juror.
At the hearing mandated by N.J.S.A. 2A:162-19(c), if the
defendant has not yet been indicted, "the prosecutor shall
establish probable cause that the eligible defendant committed the
predicate offense." N.J.S.A. 2A:162-19(e)(2). If "the court
finds probable cause that the eligible defendant" committed murder
or a crime that would subject the defendant to life imprisonment,
then
there shall be a rebuttable presumption that
the eligible defendant shall be detained
pending trial because no amount of monetary
bail, non-monetary condition or combination of
monetary bail and conditions would reasonably
assure the eligible defendant's appearance in
court when required, the protection of the
safety of any other person or the community,
and that the eligible defendant will not
obstruct or attempt to obstruct the criminal
justice process . . . .
[N.J.S.A. 2A:162-19(b).]
The presumption of detention
may be rebutted by proof provided by the
eligible defendant, the prosecutor, or from
other materials submitted to the court. The
standard of proof for a rebuttal of the
presumption of pretrial detention shall be a
preponderance of the evidence. If proof
cannot be established to rebut the
presumption, the court may order the eligible
defendant's pretrial detention. If the
15 A-1891-16T2
presumption is rebutted by sufficient proof,
the prosecutor shall have the opportunity to
establish that the grounds for pretrial
detention exist pursuant to this section.
[N.J.S.A. 2A:162-19(e)(2).]
In all cases, "[e]xcept when an eligible defendant has failed
to rebut a presumption of pretrial detention pursuant to" N.J.S.A.
2A:162-19(b), "the court's finding to support an order of pretrial
detention . . . shall be supported by clear and convincing
evidence." N.J.S.A. 2A:162-19(e)(3). The court may reopen the
hearing at any time if new and material evidence is discovered.
N.J.S.A. 2A:162-19(f).
At the hearing, "the court may take into account" the
following information, set forth in N.J.S.A. 2A:162-20:
a. The nature and circumstances of the
offense charged;
b. The weight of the evidence against
the eligible defendant, except that the court
may consider the admissibility of any evidence
sought to be excluded;
c. The history and characteristics of
the eligible defendant, including:
(1) the eligible defendant's character,
physical and mental condition, family ties,
employment, financial resources, length of
residence in the community, community ties,
past conduct, history relating to drug or
alcohol abuse, criminal history, and record
concerning appearance at court proceedings;
and
16 A-1891-16T2
(2) whether, at the time of the current
offense or arrest, the eligible defendant was
on probation, parole, or on other release
pending trial, sentencing, appeal, or
completion of sentence for an offense under
federal law, or the law of this or any other
state;
d. The nature and seriousness of the
danger to any other person or the community
that would be posed by the eligible
defendant's release, if applicable;
e. The nature and seriousness of the risk
of obstructing or attempting to obstruct the
criminal justice process that would be posed
by the eligible defendant's release, if
applicable; and
f. The release recommendation of the
pretrial services program obtained using a
risk assessment instrument under N.J.S.A.
2A:162-25.
II
In preparing to implement the Act, the Supreme Court tasked
the Criminal Practice Committee with drafting recommended
amendments to the Court Rules. Several judges, representatives
of the Attorney General, county prosecutors, the Office of the
Public Defender, and private attorneys participated on the
Committee. During the Committee's deliberations, the defense bar
urged that the rules provide for broad discovery in pretrial
detention hearings. The Attorney General and prosecutors
expressed concern that requiring extensive discovery would pose
17 A-1891-16T2
too great a burden on prosecutors and would transform pretrial
detention hearings into "mini-trials" on a defendant's guilt or
innocence, rather than a focused inquiry on whether the defendant
should be released or detained pretrial.
After lengthy consideration, the Committee recommended that
the pretrial detention discovery rule mirror Rule 3:13-3(a), which
governs pre-indictment plea-offer discovery. Section 3(a)
requires the State to provide, at the time of a pre-indictment
plea offer, (1) all exculpatory material, and (2) "all available
relevant material that would be discoverable at the time of
indictment," unless the State determines that disclosure "would
hinder or jeopardize a prosecution or investigation," or "would
impose an unreasonable administrative burden on the prosecutor's
office." R. 3:13-3(a).6
In making that recommendation, the Committee acknowledged
that it was not without controversy:
There were strong concerns raised about the
nature of a detention hearing, and that it is
supposed to be limited in scope. Some members
noted that it would be overly burdensome for
prosecutors to be required to provide
'complete' discovery, i.e., all material that
must be turned over under current R. 3:13-3
6
The Committee's proposed rule read as follows: "(b) if the
prosecutor is seeking pretrial detention, the prosecutor shall
provide all relevant material in its possession that would be
discoverable at the time of indictment as set forth in paragraph
(a) of Rule 3:13-3."
18 A-1891-16T2
when the State tenders a plea offer. It was
asserted that any such requirement would
signal that the detention hearing could be as
broad as a trial on the merits of the charge.
Thus, it was important that the discovery
obligation be limited to 'relevant material'
in the prosecutor's possession since these
hearings would be convening, in most
instances, within a few days of arrest.
[CPC Report, supra, Part 1 at 51.]
In a strongly worded dissent, which was appended to the
Committee's report, the Attorney General advocated a narrower rule
that would still require the State to provide some discovery. The
Attorney General's dissent relied on a proposal put forth earlier
by Judge Martin Cronin, a Committee member, who proposed that
discovery should be limited to exculpatory material and material
related to the State's pretrial detention application. That
proposal was aimed at giving a defendant an opportunity to
challenge the basis for detention while also limiting the scope
of discovery to only that which was relevant to the hearing.
In his dissent, the Attorney General stated: "To be clear,
prosecutors do not dispute that under the new framework of the
Bail Reform Law, available discovery must be provided to allow the
defense to address the facts and arguments that the State will
present at the pretrial detention hearing." He noted that "the
weight of the evidence may be relevant," because it "relates
directly to defendant's incentive to flee to avoid a likely trial
19 A-1891-16T2
conviction." To address "the legitimate discovery needs of
defendants facing pretrial detention hearings," the Attorney
General proposed the following alternate version of the discovery
rule:
(b) if the prosecutor is seeking pretrial
detention or release revocation, the
prosecutor shall provide the defendant with
all statements or reports in its possession
that relate to the facts upon which the
prosecutor relies in these motions.
[Emphasis added.]
Contrary to the position the Attorney General and prosecutor
asserted in this case, the Attorney General's proposed rule did
not limit discovery to the probable cause affidavit and the PLEIR.
Ultimately, the Supreme Court did not adopt the "full
discovery" approach advocated by the Committee and instead adopted
a rule closer to the version advocated by the Attorney General.
As adopted, subsections (A) and (B) of Rule 3:4-2(c)(1) distinguish
between the State's discovery obligation if detention is not sought
and the discovery that must be produced if the State files a
detention motion.
(A) if the prosecutor is not seeking pretrial
detention, the prosecutor shall provide the
defendant with a copy of any available
preliminary law enforcement incident report
concerning the offense and any material used
to establish probable cause;
20 A-1891-16T2
(B) if the prosecutor is seeking pretrial
detention, the prosecutor shall provide the
defendant with all statements or reports in
its possession relating to the pretrial
detention application. All exculpatory
evidence must be disclosed.
[R. 3:4-2(c)(1)(A), (B).]
III
Against that backdrop, we turn to the issue presented in
this appeal. Our review of a trial court's legal interpretations
- including "the meaning or scope of a court rule" - is de novo.
State v. Hernandez, 225 N.J. 451, 461 (2016). In construing a
court rule, we apply well-understood principles of statutory
construction.
When interpreting court rules, we ordinarily
apply canons of statutory construction.
Accordingly, as with a statute, the analysis
must begin with the plain language of the
rule. The Court must "ascribe to the [words
of the rule] their ordinary meaning and
significance . . . and read them in context
with related provisions so as to give sense
to the [court rules] as a whole . . . ." If
the language of the rule is ambiguous such
that it leads to more than one plausible
interpretation, the Court may turn to
extrinsic evidence.
[Wiese v. Dedhia, 188 N.J. 587, 592 (2006)
(citations omitted) (alterations in
original).]
Reading the plain language of subsection (B), we conclude
that the words cannot support the State's cramped construction of
21 A-1891-16T2
the provision. When the State seeks pretrial detention, it must
turn over "all statements or reports in its possession relating
to the pretrial detention application," and not merely the probable
cause affidavit and the PLEIR. R. 3:4-2(c)(1)(B) (emphasis added).
If we had any doubts about that conclusion, they would be
laid to rest by comparing section (A), which only requires that
the State produce the PLEIR and the probable cause affidavit, and
section (B), which requires that the State turn over "all
statements or reports." R. 3:4-2(c)(1)(A), (B). If the Court
intended the State's discovery obligation under section (B) to be
as narrow as under (A), it would have used the same language in
both sections. We "must presume that every word" in subsection
(B) "has meaning." Shelton v. Restaurant.com, Inc., 214 N.J. 419,
441 (2013) (quoting Cast Art Indus., L.L.C. v. KPMG, L.L.P., 209
N.J. 208, 224 (2012)).
In considering the types of materials the State must produce,
we also note that the Court used the term "relating to," which in
normal usage means "to be about" or "connected with" something.
Merriam-Webster, https://www.merriam-webster.com/dictionary/
relate%20to (last visited Feb. 3, 2017). Considering that
language in light of the rule's legislative history - the CPC
Report and the Attorney General's dissent - we infer that the rule
requires the State to produce those materials in its possession
22 A-1891-16T2
which relate to the facts on which the State relies in its
application.
In this case, the State relies on the facts that two
eyewitnesses identified defendant as the shooter, and that a
surveillance video supports the identification. Therefore, it
must produce in discovery the materials relating to those factual
assertions - i.e., the witness statements, the photo arrays, and
the surveillance video.7 The initial police reports must also be
turned over, because they can be expected to provide the basic
background facts concerning the time and place of the crime, the
interviews of the witnesses, and the filing of the murder charge.
Contrary to the State's argument on this appeal, the required
discovery is not limited to the documents on which the State claims
to rely. Rather, it extends to those materials that "relate" to
the State's application. Therefore, the State cannot avoid turning
over discovery by claiming that it is only "relying" on the
probable cause affidavit and the PLEIR. That argument is
unpersuasive and contradicts the position the Attorney General
espoused before the Committee.
7
At oral argument, the prosecutor confirmed that the surveillance
video was from an ordinary security camera located in the vicinity
of the shooting, as opposed to a special law enforcement
surveillance device.
23 A-1891-16T2
We are also unpersuaded by the State's expressed concern
that allowing defendants to obtain discovery beyond the PLEIR and
the probable cause affidavit will turn the pretrial detention
hearings into mini-trials. The State's argument puts the
proverbial cart before the horse. The scope of discovery will not
necessarily determine the scope of the hearing. The latter issue
is not before us on this appeal and we do not address it.
However, we do consider that the very limited discovery for
which the State advocates could deny a defendant a fair
opportunity to defend against the State's application, and could
hamper the trial court's ability to fairly assess the nature and
circumstances of the offense and the weight of the evidence.
N.J.S.A. 2A:162-20(a) and (b) specifically allow the court to
consider those factors.
In this case, the murder charge was based almost exclusively
on witness identifications. If the circumstances surrounding
them established that the identifications were weak or otherwise
plainly unreliable, the basis for the State's application would
diminish. Neither defendant nor the court would know this without
review of the identification evidence. Whether the State intends
to produce the witness statements at the hearing or call the
witnesses to testify is not pertinent. The salient point is that
defendant should have the opportunity to review the
24 A-1891-16T2
identifications to prepare a defense and to facilitate a court
decision based on the circumstances of the case.
Moreover, although it may not be an issue in this case,
discovery relating to the State's application may reveal to the
court that the charges, while nominally supported by probable
cause, appear exaggerated or a product of over-charging. As an
example, a fistfight between two students in a schoolyard could
result in charges ranging from simple assault to attempted murder.
Or, review of a witness statement could result in a defendant
discovering that he or she has an alibi for the alleged time of
the crime. Considering the "nature and circumstances of the
offense charged" and the "weight of the evidence" could
significantly affect the court's decision on a detention
application, even without holding a testimonial hearing. See
N.J.S.A. 2A:162-20(a), (b).
Further, there is nothing unusual about providing a defendant
with additional discovery rights where the State seeks to impose
an additional burden on defendant's freedom or seeks to deprive
a defendant of a traditional legal protection. While it is an
imperfect analogy, our Court has held that in juvenile waiver
hearings, the State must provide "[f]ull discovery" to "enable
the juvenile and counsel to prepare for all facets of the
hearing." N.H., supra, 226 N.J. at 245. At a waiver hearing,
25 A-1891-16T2
the State must establish probable cause that the juvenile
committed an enumerated act and that the State did not abuse its
discretion in requesting waiver. Ibid. The factors a court may
consider are somewhat similar to those the court may consider at
a detention hearing. Compare N.J.S.A. 2A:4A-26.1(c)(2) and (3),
with N.J.S.A. 2A:162-20.
As explained by the Court, the waiver hearing is a
"critically important event" in the process because the juvenile
risks losing the protections afforded by the Family Court, which
includes emphasis on rehabilitation and lesser sentences. N.H.,
supra, 226 N.J. at 255. The Court acknowledged the importance of
discovery in the waiver hearing process:
Full discovery facilitates the court's review
of all the issues to be addressed at the
hearing. Full discovery also enables the
juvenile and counsel to prepare for all facets
of the hearing and decide how best to cross-
examine the State's witnesses, whether the
juvenile or others should testify, and how to
assess and challenge the prosecutor's exercise
of discretion.
[Id. at 256.]
However, the Court noted that the State was free to seek a
protective order "to redact, delay, or withhold the disclosure of
materials that would expose witnesses and others to harm, hinder
or jeopardize ongoing investigations or prosecutions, undermine
the secrecy of informants and confidential information which the
26 A-1891-16T2
law recognizes, or compromise some other legitimate interest."
Ibid. (referring to R. 3:13-3(a)(1) and (e)(1)).
In this case, Rule 3:4-2(c)(1)(B) does not provide for full
discovery. However, N.H. is instructive because it recognizes
that at critical stages in a criminal proceeding, a defendant
must be afforded "a meaningful opportunity to be heard." N.H.,
supra, 226 N.J. at 253. The discovery provided by section (B) is
an important component of that opportunity.
In summary, we hold that Rule 3:4-2(c)(1)(B) obligates the
prosecutor to provide a defendant with those materials in the
State's possession that relate to the facts on which the State
bases its pretrial detention application. Those "facts" are the
factual assertions contained in the probable cause affidavit. The
materials, which must be produced, include those referenced in
the affidavit and in the PLEIR. In this case, the identification
of defendant as the shooter was central to the State's
application, and the trial court properly ordered the State to
produce the eyewitness statements, the photo arrays, the
surveillance video listed in the PLEIR, and the initial police
reports.
Affirmed.
27 A-1891-16T2