New Jersey’s Supreme Court has put an exclamation point to a message it has been sending since 2004, that police interrogators must not destroy notes of interviews with suspects. In State v. Dabas, decided July 30, the court reversed a murder conviction in a case in which a county investigator destroyed his handwritten notes after he prepared a written report of the defendant’s unrecorded portion of his interview. The destruction occurred in 2006, more than a full year after the defendant’s indictment, notwithstanding that the court in separate cases in 2004 and 2005 had expressly disapproved this note-destroying practice. (Even without those prior cases, discovery rules required that the notes be disclosed in the post-indictment discovery package.) Although reversal of a murder conviction is not a step to be taken lightly, we agree with the court’s action — as well as the additional remedy it imposed, namely, that at defendant’s retrial he is entitled to an adverse inference instruction to the jury.
In Dabas, the defendant was charged with murdering his wife in 2004. An investigator from the Middlesex County Prosecutor’s Office interviewed the defendant, taking handwritten notes of the two-hour, unrecorded conversation. The police then conducted a 15-minute conversation that was recorded on tape. Most of the questions asked of the defendant during the taped interview were leading in nature and had been formed on the basis of the investigator’s handwritten notes from the nontaped portion. In 2006, over a year after the indictment, the investigator prepared a written report of the interview and then destroyed his handwritten notes without providing them in discovery. According to the prosecutor’s office, this was done “in accordance with police practice at the time.” At trial, in 2007, the state convicted defendant in part on the testimony of the investigator who testified about the purported nontaped admissions of defendant.
Writing for a unanimous court, Justice Barry Albin held that the criminal rules of discovery clearly required that the interview notes be turned over, especially when they had existed in the police file afterdefendant’s indictment. Without the notes, the defendant was deprived of the ability to test the accuracy of the investigator’s report. Indeed, under the applicable rule of court in effect at the time, those notes should have been provided or available in discovery within two weeks of the indictment, even if the defendant had not requested them. In addition, dicta contained in Supreme Court decisions in prior years contained express messages from the justices that notes of such interviews needed to be preserved. Whether considered dicta or not, clear expressions of the Supreme Court must be followed in this setting.
As a remedy for the discovery violation, the court remanded the matter for retrial and directed the trial court to give an adverse inference instruction to the jury. Thus, the jury will be permitted to infer that the contents of the destroyed notes contained information unfavorable to the state, but only after jurors give “full consideration to the nature of the discovery violation, the explanation given by the State for the violation, and any other relevant factors that would bear on the issue.”
The court reached the right result for the right reasons. Even without the case law in 2004 and 2005, the rule was clear at least as it related to post-indictment discovery. As recently as 2011, the court reiterated the law in this area, including the possible remedy of an adverse inference charge. And it has spoken yet again in Dabas. In other words, the case law and rules of court could not be clearer as to what is required in present circumstances. Interrogators must preserve their interview notes even before the state is required to tender discovery — in other words, both in pre- and post-indictment settings. We can only hope that these types of discovery violations will not reoccur.