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New Jersey Discovery Rules for Cooperating Witness/Confidential Informants in Drug Cases

New Jersey law enforcement routinely rely on cooperating witnesses or confidential informants in making drug arrests. In a recent example, a man was arrested in Sussex, NJ on September 2016 and charged with various drug related offenses under the New Jersey Criminal Code. The charges included first-degree possession with intent to distribute cocaine in violation of N.J.S.A. 2C:35-5b(3), second-degree possession with intent to distribute crack cocaine and heroin, and third degree possession with intent to distribute methamphetamine.

The police relied on a cooperating witness from the Sussex County Narcotics Task Force to make the arrest. The cooperating witness purchased from the defendant and the task force also made controlled buys of cocaine.

When the state uses cooperating witnesses in a drug sting operation a defendant has a right to discovery of certain information relating to the cooperating witness. Discovery Rule 3:13-3(b) generally requires that the State provide all evidence relevant to the defense of criminal charges. Rule 3:13(b) states that discovery “shall include all exculpatory information and relevant material.” Evidence is relevant if it has any tendency to prove or disprove a fact of consequence in the determination of the action. In a recently decided New Jersey Supreme Court case, State v. Hernandez, the court held that the States discovery obligations extend to providing material evidence affecting the credibility of the States cooperating witness. State v. Hernandez, 225 N.J. 451, (N.J. 2016).

State v Hernandez had facts very similar to those seen in the Sussex arrest. On three occasions the defendants in the case sold cocaine to a witness cooperating with law enforcement. The defendants were charged with second degree conspiracy to distribute more than five ounces of cocaine, N.J.S.A. 2C-35-5(a)(1), second-degree distribution of cocaine within 500 feet of a public park, N.J.S.A 2C-35-7-1, and third degree possession of cocaine N.J.S.A. 2C-25-10(a)(1).

The cooperating witness in exchange for a favorable plea deal had assisted the State in a number of other drug busts. The plea deal between the State and the cooperating witness had very strict guidelines. The agreement provided for sentence reductions for the cooperating witness if successful prosecutions of three targeted individuals involved in narcotics trafficking were obtained. The agreement would be void if the cooperating witness provided false information, intentionally overstated the involvement of other individuals, or was found to be false or misleading in regards to the investigation.

The major issue in the case was whether the defense was entitled to view the files relating to the cooperating witnesses other non-related narcotics cases. The defense argued that this information was relevant, while the State Attorney General argued that it was overly broad and that the defense legal team had not made a showing that the information requested was relevant.

The New Jersey Supreme Court stressed that defendants are entitled to expose the bias in witnesses cooperating for the State in exchange for a favorable plea. That criminal defendants have the right to undermine the credibility of cooperating witnesses before a jury panel.

The court outlined what a defendant in a criminal case is allowed to obtain per Discovery Rule 3.13(b). The defendant is entitled to the name of the cooperating witness, the witnesses criminal history, cooperation and plea agreements with the State, and copies of audio tapes containing recording of drug buys, as well as information relating to the violation of any other cooperating agreement involving other cases, including disclosure of false information.

The major holding in the case however was that while the defendant in a criminal case enjoys a broad range of discovery, the right does have limitations. Specifically, the court held that while defendants enjoy the right to the prosecutor’s file in their specific case, they do not have the right to discovery of prosecutor’s files in unrelated cases. The New Jersey Supreme Court’s rejection of permitting defense to obtain information relating to cooperating witnesses in unrelated cases will have a profound impact on criminal drug prosecutions. The court stressed that their decision to reject discovery of unrelated cases relating to the cooperating witness was based in large part on defense legal team’s failure to articulate how “disclosure of documents in unrelated investigations will lead to relevant or admissible evidence.” Id. This holding proves how essential effective legal representation is in drug cases involving cooperating witnesses and undercover informants.


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