Friday, January 30, 2015

Prosecutor Must Reveal Confidential Witnesses Prior Cooperation with Law Enforcement under New Jersey Law.

In State v. Hernandez the New Jersey Appellate Division held that in all cases in which the prosecutor will use a confidential informant to testify (CW), the State must provide to defense counsel all cooperation agreements as well as details regarding the extend of the cooperation.  In this case the prosecutor filed an interlocutory appeal, appealing the trial court’s ruling that the defendants were entitled to broad discovery regarding a confidential witnesses cooperation with law enforcement in other cases.  The appellate division granted the appeal and affirmed the trial court.

In this case the CW engaged in three cocaine buys with the defendants.  The State intended to have the CW testify as to those buys.  In discovery the prosecutor provide the name of the CW, his criminal history and a copy of the  cooperation agreement which the State had with the CW.

The defense requested additional discovery in the form of the nature and extend of cooperation, as well as any benefits which the CW received for working with the prosecutor on the cocaine purchases.  Specifically, the defendants requested a privilege log detailing internal memorandum and correspondences between the prosecutor and the CW which the prosecutor deemed privileged.  In addition, defendants requested any audio tapes of the CW, his e-mails to the prosecutor, and any statements that the CW had made, which included any investigation reports regarding the CW on the other cases in which the CW had cooperated.

The trial court agreed with the defendants and ordered the discovery subject to any redactions as to specific names and address’ in the other cases.  This included the requirement that the prosecutor electronically search its data base to provide defense with information regarding all past cooperation in which the CW was involved.

In deciding this case the appeals court cited the seminal case Brady v. Maryland, 373 U.S. 83, 87-88, 83 S. Ct. 1194, 1197, 10 L. Ed.2d 215, 219 (1963). In that case the State is required to provide the defendants with the record of any statements, of any individual with relevant information or evidence in the case, which are within the possession, custody or control of the prosecutor. Citing Rule 3:13-3(b)(1)(G). In addition to that the State is also required to provide defense counsel with all other exculpatory information or material, which would include pending charges, plea bargains or cooperation agreements for which a witness may be seeking favorable treatment for his trial testimony. State v. Long, 119 N.J. 439, 488-89 (1990).

Before you decide on hiring a criminal defense attorney you should carefully review the criminal attorneys and decide whether that attorney has the experience and competency in handling your criminal case.

Food for thought:  About twenty-years ago the welfare state was being assaulted, along with the export of livable working wages oversees by the rich and powerful.  To take its place was the punishment state promoted by both the republican and democratic parties.  This downward escalator for the working class and poor, by taking away their jobs  and safety net, created a vast army of unemployed poor.  Capitalism needed a replacement and the penitentiary was their answer.  The prison population in the United States has increased every year and we have gone from a working state to a prison state.

Quote of the Day: Theologian Cardinal Baronius’s once wrote, “The Scriptures tell us how to go to heaven, not how the heavens go”

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Dated:  January 30, 2015

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