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Subpoena

Three recent cases in New Jersey point to a disturbing trend in state-level criminal practice; indeed, an epidemic that warrants immediate and decisive action by the Attorney General. Action is needed to stem the tide of an alarming pattern of prosecutorial overreaches. If reform does not happen now, it will not be long before there will be lasting damage to the criminal justice system in this state through the continued erosion of the constitutional protections that help preserve the rights of an accused person. Although state prosecutors in New Jersey must overcome one hurdle outlined in the Rules of Professional Conduct (RPC) if they plan to subpoena a criminal defense attorney to testify against his or her current or former client, the RPCs have proven not to be a significant enough deterrent in recent months.

New Jersey RPC 3.8(e) governs the ethical responsibilities of state prosecutors with regard to subpoenas directed to criminal defense attorneys. The rule states generally that, “[t]he prosecutor in a criminal case shall … not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client[.]” However, there is a significant, but precise exception to that stated general premise, which reads, “unless the prosecutor reasonably believes: (1) either the information sought is not protected from disclosure by any applicable privilege or the evidence sought is essential to an ongoing investigation or prosecution; and (2) there is no other feasible alternative to obtain the information[.]” (Emphasis added.)

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