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.
