The state Supreme Court on Wednesday adopted measures updating rules governing criminal and quasi-criminal cases to reflect evolving technology — especially as concerns enhanced availability of electronic discovery.
The court accepted, largely unchanged, the rule amendments proposed by Special Committee on Discovery in Criminal and Quasi-Criminal Matters, chaired by former Supreme Court Justice Virginia Long, in its Feb. 21 report, to be effective Jan. 1.
The changes are intended to streamline discovery exchanges among prosecutors and defense lawyers, to attempt to standardize electronic file formats for easier access and to encourage lawyers to address discovery disputes stemming from the electronic nature of the material instead of involving the courts.
Among other changes, Rule 3:13has been extensively rewritten to increase availability of discovery to defense attorneys both before and after indictment.
Rule 3:13-2(a) requires prosecutors to “provide” pre-indictment discovery — rather than just make it available for review — when a plea offer is made, unless the defendant agrees to more limited discovery. Prosecutors could provide partial discovery if they determine doing otherwise would “hinder or jeopardize a prosecution or investigation,” or could instead make electronic or physical discovery available for inspection if provision would “impose an unreasonable administrative burden on the prosecutor’s office.”
Rule 3:13-3(b)(1) and (b)(2) require prosecutors and defense counsel to provide the other side with post-indictment discovery, and to do so within seven days of indictment, rather than 14. They may instead make the materials available for review for “good cause shown,” including the “unreasonable administrative burden” referred to in subsection (a), but also must list missing items and explain why they are missing.
Rule 3:13(b-3)(1) requires prosecutors, upon private defense counsel’s written request, to mail (paid for by the defendant) or e-mail (for free) discovery within three business days. It leaves the decision to utilize standard mail or e-mail to the prosecutor. The defense lawyer must send a copy of his or her request, along with any request to waive the pre-arraignment conference, to the criminal division manager. Public defenders still are required to physically pick up discovery at the prosecutor’s office or courthouse.
The list of discoverable materials from Rule 3:13(b)(1) is expanded to include previously unreferenced items, including “electronically stored information.” Also, prosecutors must provide transcripts of the defendant’s electronically recorded statements or confessions and transcripts of co-defendants’ and witnesses’ statements whom the prosecutor intends to call at trial.
Rule 3:13-3(d) specifically authorizes discovery to be provided electronically via CD, DVD, internet “or other electronic means”; in a .pdf format, or a format “compatible with any standard operating computer”; and accompanied by an index of what’s provided. The court may order the data to be provided in its original format. If not in an open format, the files must be accompanied by a “self-extracting computer program” to access them.
Alcotest data must “be provided in a readable digital database format generally available to consumers in the open market.”
Rule 3:13-3(c) prohibits a motion for discovery unless the moving party certifies that both sides attempted to reach an agreement on any discovery issues, including e-discovery materials.
Rule 3:13-5 establishes uniform discovery fees identical to those from the state Open Public Records Act: 5 cents per page, 7 cents per legal-size page, and electronic materials free of cost, unless the prosecutor wishes to charge for the cost of any disks. Prosecutors may impose a special service charge in some circumstances, though defense counsel could challenge it.
Rule 1:11-2(a)(3) requires withdrawing defense counsel to certify in writing that he or she gave the substituting attorney discovery provided by prosecutors.
Rule 3:5-6(c) requires prosecutors to “provide” search warrants to defendants, not just make them available for review or copy.
Rule 3:9-1(a) requires defense counsel to pick up discovery at or before the pre-arraignment conference (which must be within 21 days of indictment) and requires prosecutors to make discovery available within seven days, instead of 14. For lawyer-less defendants seeking representation by the Public Defender’s Office, counsel must obtain discovery at the arraignment or status conference occurring within 28 days of indictment. Also, the pre-arraignment conference may be waived if arrangements for exchange of discovery already have been made.
Rule 3:9-1(b) requires prosecutors and defense counsel to “confer and attempt to reach an agreement” on any discovery issues before arraignment, including issues with materials “provided through the use of CD, DVD, e-mail, internet or other electronic means.”
Rule 3:9-1(c) requires arraignments within 28 days of indictment, rather than 50 days, if the defendant was unrepresented or did not appear at the pre-arraignment conference.
Corresponding changes recommended for Part VII provisions governing municipal court matters also were adopted.
Defense lawyers took issue with late revisions to the proposed amendments that gave prosecutors sole discretion over when to provide partial discovery or withhold copies.
The Association of Criminal Defense Lawyers-New Jersey contended that there should be judicial review of that discretion, though the prospective rules were never modified in that way, says Leslie Stolbof Sinemus, immediate past president of the organization.
The court convened the special committee in April 2009 after the Public Defender’s Office voiced concerns about frequent inability to open or view electronic discovery due to varying equipment and software used by the Attorney General’s Office, the State Police and local police agencies. Those issues were said to have led to a number of discovery-related disputes in the courts.
The Criminal Practice Committee, in order to involve other agencies, proposed creation of a special committee to examine the discovery rules, many of which hadn’t been changed since 1994.
Besides Long, the special committee includes retired jurists, county and local prosecutors, State Bar Association representatives and defense attorneys.
The special committee says it took a “holistic” approach. “Thus, while some of the Committee’s rule recommendations go beyond ‘electronic discovery,’ the Committee viewed them as necessary to make the discovery process more efficient,” the report said.
Long, now counsel at Fox Rothschild in Princeton, says she’s “very confident, especially because of the constituency of the committee, that we’ve covered all the bases.”
“I feel we came up with a way to make the entire process more uniform … and also get the discovery going at an early stage of the proceeding,” she says.
Long acknowledges there could be issues early on during implementation, but the new rules will be under continuous review, and “nothing is in cement.”
“It may be that some of the smaller offices have more difficulty,” she says. “The most important thing to remember is that we’re moving in the right direction.”
As for the provisions objected to by the ACDL-NJ, Long says they weren’t a last-minute addition but were “debated throughout the entire process” and ultimately were left untouched in accordance with a committee vote.