As has been the case year after year, the criminal cases decided by the New Jersey Supreme Court this past term ran a wide gamut. The four cases discussed below stood out, either because they set new precedent or clarified law that has been evolving or in disarray. Among this small group, one case in particular stood out. The case, State v. Earls, No. 068765 (N.J. July 18, 2013), received national attention because it confronted head-on a difficult question in this era of digital communications: Must a warrant be secured before cellphone location data may be sought by the police from a third-party wireless carrier? In a unanimous opinion authored by Chief Justice Rabner, the court held that the New Jersey Constitution confers a protectable privacy interest upon one’s cellphone location information. Unless a recognized exception to the warrant requirement applies, the court ruled, police are obligated to secure a warrant in advance of demanding such information from a wireless carrier.

The case arose out of a 2006 investigation by the Middletown Township Police of a series of residential burglaries. A cellphone stolen during one of the burglaries was traced to a bar in Asbury Park, pursuant to a court order. An individual at the bar who was questioned by the police stated that the cellphone had been sold to him by his cousin, defendant Thomas Earls. Earls, the person stated, had been involved in residential burglaries, storing the proceeds in a storage unit rented by him or his girlfriend, Desiree Gates.

Gates was located by the police the next day, who accompanied her to the storage unit. The unit was opened and, in it, were items believed by the police to have been stolen. The next day, a cousin of Gates informed the police that the defendant was aware of Gates’ cooperation with the police and had threatened to harm her. The cousin stated that Gates had not been seen subsequent to her accompanying the police to the storage unit.

On Jan. 26, 2006, the police filed a complaint against the defendant for receiving stolen property. An arrest warrant was thereafter obtained, and police began searching for the defendant in order to secure his arrest and assure that Gates was safe. During the course of the search, the police contacted cellphone service provider T-Mobile. On three separate occasions that evening, T-Mobile provided information about the location of the cellphone that the police believed was the one the defendant was using. No warrant was sought with respect to any one of the three traces.

The third trace led the police to the area of Route 9 in Howell. At around midnight, the police located the defendant’s car at a Route 9 motel. At about 3:00 a.m., the police, using the motel clerk’s phone, called the motel room where the defendant and Gates were believed to be staying. Gates answered the phone and was asked to open the door and come outside. She and the defendant opened the door, and the defendant was placed under arrest. During the course of the arrest, the police saw on the floor of the motel room a flat-screen television and several pieces of luggage. The luggage was later determined to contain stolen property.

The defendant was indicted on multiple charges, including third-degree burglary, third-degree theft and third-degree receiving stolen property.

A motion to suppress was filed by the defendant. In ruling upon the motion, the court found that the defendant had a reasonable expectation of privacy under the New Jersey Constitution, which required the issuance of a warrant before the police could obtain the cell-tower data provided by T-Mobile. The court nevertheless admitted the evidence, finding that the emergency aid exception to the warrant requirement was applicable under the circumstances.

Thereafter, the defendant pleaded guilty to third-degree burglary and third-degree theft, and he was sentenced under the terms of a negotiated plea agreement. The Appellate Division affirmed the sentence and later permitted the defendant to reopen his appeal to challenge the trial court’s suppression ruling. The Appellate Division affirmed the trial court’s ruling, but on different grounds. The court, without considering the emergency aid doctrine, found that the defendant lacked a reasonable expectation of privacy in his cellphone location information. It also found that the evidence seized was in the plain view of the police.

The Supreme Court granted the defendant’s petition for certification, “limited to the issues of the validity of defendant’s arrest based on law enforcement’s use of information from defendant’s cell phone provider about the general location of the cell phone and the application of the plain view exception to the warrant requirement.”

In considering the issues, the court first examined the United States Constitution, beginning with the observation that the Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ….” Under existing federal jurisprudence, the court observed, the existence of a constitutional violation turned on whether the individual’s reasonable expectation of privacy was violated by government action. The court noted two United States Supreme Court decisions that had addressed the government’s use of beepers or electronic tracking devices, and in each had found no reasonable expectation of privacy in the monitoring of tracking devices in public, as opposed to private, areas. United States v. Knotts, 460 U.S. 276 (1983), and United States v. Karo, 468 U.S. 705 (1984). Subsequent federal decisions applying Knotts or Karo to cell-site data, the court noted, are divided, with some finding no Fourth Amendment violation, and others finding that the Fourth Amendment required police to obtain a warrant for cell-site data. A more recent United States Supreme Court decision, the court stated, rested on principles of trespass. Citing United States v. Jones, 132 S. Ct. 945 (2012).

The court then turned its attention to Article I, Paragraph 7, of the New Jersey Constitution, the state counterpart to the Fourth Amendment of the United States Constitution. Comparing the two constitutions, the court noted that the relevant provisions of the New Jersey Constitution provide greater protection against unreasonable searches and seizures than that afforded under the Fourth Amendment.

Under state search-and-seizure jurisprudence, the focus, the court stated, is on whether the individual has a reasonable expectation of privacy. As a general rule, privacy concerns heighten as the tracking becomes more sophisticated and precise. Although cellphones can be pinpointed with great precision, the court noted, the judiciary has no equivalent means of calculating with mathematical certainty a person’s legitimate expectation of privacy. Certain aspects of cellphone technology and the way cellphones are typically used were clear to the court, however.

First, the court observed, cellphones are not intended to serve as tracking devices. Though they do employ tracking technology, the purpose for the tracking is to locate another phone so that communication may occur. No one, the court noted, buys a cellphone for the purpose of sharing detailed information about their whereabouts with the police. The court further observed that when cellphone owners make disclosures to phone companies and related service providers, their purpose is to obtain access to their services rather than to have the information they are providing published to others. Phone owners, the court recognized, may reasonably expect that their personal information will remain private.

The police use of a cellphone to determine the location of its owner, the court analogized, is akin to police use of a tracking device: the cellphone is used as a means for placing the individual under constant surveillance without the police having to confront the limits of their resources. Moreover, the court stated, the use of a cellphone as a tracking device involves a degree of intrusion that a reasonable person would not anticipate. Information acquired that relates to the location of a cellphone, the court observed, may provide the police with intimate details about people’s daily lives, revealing not only where people go, including the doctors, religious services and stores they frequent, but also the people and groups with whom they choose to affiliate. The information obtainable, the court noted, cuts across a swath of personal ties with family, friends, political groups, health-care providers and others. In addition, the court observed, the historical distinction between public and private areas is blurred because cellphones emit signals from both places.

The court concluded that Article I, Paragraph 7, of the New Jersey Constitution protects an individual’s privacy interest in the location of his or her cellphone. That constitutionally protected interest, the court held, requires that the police obtain a warrant based upon a showing of probable cause, unless an exception to the warrant requirement applies.

Having rejected the Appellate Division’s holding that the defendant lacked a protectable privacy interest in his cellphone location records, the court then went on to find that the Appellate Division also erred in finding the plain view exception to the warrant requirement applicable. The plain view doctrine did not apply, the court found, because the police were not lawfully present in the motel room at the time the allegedly stolen property was sighted. The police were in the room, the court noted, directly because of their warrantless search of T-Mobile’s records.

The court also noted that because the Appellate Division found that the plain view exception to the warrant requirement was applicable, it never considered whether the emergency aid doctrine, which the trial court found applicable, negated the need for the police to obtain a warrant. The court therefore remanded the matter to the Appellate Division to determine whether the emergency aid doctrine applies to the facts under the court’s newly restated test.

Noting that its opinion announced a new rule of law by imposing a warrant requirement for cellphone location data, the court refused to apply the new rule retroactively. In ruling against retroactivity, the court noted that it was required to consider several factors, including that “retroactive application would have on the administration of justice.” State v. Knight, 145 N.J. 233, 251 (1996). The results in many cases would be jeopardized, the court held, were the new rule to be applied retroactively.

The court therefore applied its holding directly to defendant Earls and future cases only. As to future cases, the warrant requirement will take effect 30 days from the date of the court’s decision, in order to provide the attorney general with adequate time to circulate guidance to all state and local law enforcement officials. For prior cases, the requirement existing at the time an investigation was conducted would remain in effect. As of Jan. 12, 2010, the court stated, law enforcement officials had an obligation to obtain a court order before receiving cell-site information under N.J.S.A. 2A:15 6A-29(e).

In another precedent-setting case, Justice Albin, writing for the majority in State v. Vargas, No. 069449 (N.J. March 18, 2013), considered whether the community caretaking exception to the warrant requirement of the United States and New Jersey Constitutions applies to the entry by the police into a home without the resident’s consent or an objectively reasonable basis to believe an emergency exists.

As of March 2008, defendant Cesar Albert Vargas had resided for almost one year in a second-floor apartment in Vineland. Vargas failed to pay his rent on March 1, when it was due. On March 5, with the rent still unpaid, the landlord and an appraiser entered into the defendant’s apartment. The defendant was not present, but the apartment appeared to be in good order. On several subsequent days, the rent remaining unpaid, the landlord came to the defendant’s apartment, knocked on the door and left voicemails on his cellphone, but Vargas failed to respond.

Two tenants in the building told the landlord that they had not seen Vargas for either “several days” or “weeks.” They noted that a bag of trash had been sitting on Vargas’s front porch for “several days” or perhaps a “week,” and that his Jaguar convertible had not been moved. On March 17, the landlord observed the Jaguar covered in pollen, its rear wheels deflated, parked beside the house. Vargas’s mailbox was noticeably full.

The landlord again knocked on Vargas’s door and tried calling his cell, but yet again, no success. The landlord made no effort to call Vargas’ emergency contact number or his place of employment. Nor was the landlord aware of the pattern of Vargas’ “comings and goings.” The landlord was unaware of the length of Vargas’ vacations, whether he took business trips, or whether he traveled out of town to meet with family.

Unable to locate the defendant, the landlord called 911. Three Vineland police officers were dispatched to the defendant’s apartment for a “welfare check.” The officers observed Vargas’ mailbox to be full, saw his Jaguar covered in dust, and his car tires deflated.

The officers knocked on Vargas’ door, but there was no answer. They thereafter contacted dispatch and confirmed that no “calls for service” — such as a call for an ambulance or the police — had come from or been directed to Vargas’ apartment. The officers, who said they had “reasons to fear” for Vargas’s safety, entered into his apartment. No one was home and there was no evidence of foul play. In the living room the police saw a six-to-eight-inch jar containing what appeared to be marijuana. The landlord, who accompanied the officers, opened kitchen cabinets and drawers and found what “appeared to be two canning jars full of marijuana.” A warrant was subsequently obtained authorizing a search of the apartment.

The defendant was later indicted for various crimes, including money laundering, possession with intent to distribute marijuana, unlawful possession of firearms and other offenses. Vargas, claiming the police had unlawfully entered and searched his apartment, moved to suppress the evidence seized. The trial court agreed and ordered suppression of all the evidence. In so ruling, the court specifically rejected the state’s argument that the community-caretaking doctrine justified the warrantless search. The court found that exception to the warrant requirement to be inapplicable because there was no objectively reasonable basis to believe that the life or safety of the defendant was in jeopardy, or that the community’s safety was imperiled. The trial court determined that there were no “exigent circumstances” to justify the warrantless search conducted by the police.

The Appellate Division, in an unpublished opinion, reversed. The court held that the community-caretaking exception to the warrant requirement was applicable and extended to home searches. Because the police had a legitimate concern for the defendant’s welfare, the doctrinal requirements of the community-caretaking exception rendered it unnecessary for the police to have secured a warrant prior to entering into defendant’s apartment.

The defendant thereafter successfully moved for leave to appeal to the Supreme Court. Reversing the Appellate Division, the court held that the police had no objectively reasonable grounds for believing that an emergency existed, and therefore the warrantless entry and search of the defendant’s home could not be justified under the community-caretaking doctrine.

The court noted that “The right of the people to be secure in their … houses … against unreasonable searches and seizures” is an essential guarantee of the warrant requirement under both the federal and state constitutions. The requirement that the police obtain a warrant before searching a home, the court stated, protects an individual in his home from official intrusion, whether the purpose of the search is to further a criminal investigation or aid the enforcement by government of an administrative regulation. Because the warrantless search of a home is presumptively??invalid, the court noted, the state bears the burden of establishing that such a search falls within one of the few “‘well-delineated exceptions’ to the warrant requirement.” Citing State v. Frankel, 179 N.J. 586 (1978).

The community-caretaking doctrine as an exception to the warrant requirement, the court observed, was recognized by the United States Supreme Court in Cady v. Dombrowski, 413 U.S. 433 (1973). Cady, the court stated, though recognizing the “community caretaking functions” of the police in the context of an automobile search, never suggested that the doctrine constituted a wholly new exception to the warrant requirement, one that would justify the warrantless search of a home. Indeed, the court noted, Cady distinguished automobile from home searches. The United States Supreme Court, the court further noted, has never, outside of automobile searches, referred to “community caretaking functions” as being an exception to the warrant requirement. Further, the court observed, the United States Supreme Court has never spoken of a community-caretaking exception to the warrant requirement that would allow the warrantless entry of a home absent some exigency.

Among the United States Courts of Appeals, the court noted, there is a split over whether the community-caretaking doctrine can justify a warrantless search of a home, but no circuit court suggests that the warrantless entry of a home is permissible in the absence of some form of exigency.

The court stated that with respect to the community-caretaking doctrine as interpreted by the New Jersey courts, the case law has blurred the distinction between the community-caretaking and emergency-aid doctrines. In cases initially decided by the court after Cady, the court noted, there was a narrow construction of the community-caretaking doctrine. In one such case, the court observed, though Cady and its discussion of the community-caretaking role of the police were acknowledged, a warrantless search was upheld because it was justified by exigent circumstances. In another, the court noted, there was a specific finding that the community-caretaking doctrine could not be invoked to justify a warrantless entry into a private residence. Since those early cases, the court observed, though it has applied the community-caretaking doctrine outside of the automobile impoundment context, the factual circumstances at issue always involved circumstances requiring immediate police action. In the absence of consent or some species of exigent circumstances, the court ruled, the community-caretaking doctrine is not grounds for the police to enter and search a home without a warrant.

The record below, the court ruled, reflects that the trial court applied the correct legal standard and sufficient credible evidence supported its decision. The police did not have an objectively reasonable basis to believe that an emergency threatening life or limb justified the warrantless entry into defendant’s apartment. The court further held that the Appellate Division erred by concluding that the community-caretaking doctrine justified the warrantless search of the defendant’s home,??even in the absence of a “compelling need for immediate action.” The seizure of evidence from the defendant’s home, the court ruled, violated both the Fourth Amendment of the United States Constitution and Article I, Paragraph 7, of the New Jersey Constitution, and suppression was required.

In State v. Buckley, No. 069494 (N.J. May 15, 2013), another case of first impression, the court unanimously decided, in an opinion written by Justice Patterson, that the jury would not be permitted to consider the passenger’s failure to wear a seatbelt or the alleged misplacement of a utility pole as intervening causes in determining whether the defendant’s reckless driving was the “but for” cause of the death of another under N.J.S.A. 2C:2C-2-3(a)(1), and whether, under the first prong of N.J.S.A. 2C:2-3(c), the defendant was aware that his conduct created a risk of causing death. (Note: The author of this article represented the defendant in this case before the New Jersey Supreme Court, and represents him in pending trial proceedings.)

The case, which was heard before the court on leave of the state to file an interlocutory appeal, arose from an automobile accident on Aug. 12, 2008. The defendant driver, Keith Buckley, and the passenger, Christopher Zerby, were lieutenants in the North Brunswick Police Department, and both were on duty at the time the accident occurred. Earlier in the day, at about 10:30 a.m., Buckley arrived at his brother’s house to borrow his rented 2006 Dodge Viper convertible, on the condition that the car be returned in two hours. Buckley subsequently saw Zerby, who said he would like a ride in the sports car. The men met at police headquarters about 25 minutes later and left in the Viper, with its top down. A little more than 10 minutes later, at 11:06 a.m., on a southbound section of Route 130, where the speed limit was 45 miles per hour, Buckley drove off the road and collided with a utility pole. After the collision, the car came to rest by the side of the road facing northward. A guardrail was damaged and partially uprooted, and the utility pole was displaced by five inches, with a portion embedded in the rear of the car. The car also sustained severe damage. Buckley, who had been wearing his seatbelt, survived the accident without serious injury, but Zerby, who did not, and he was pronounced dead at 11:44 a.m.

Buckley was indicted for second-degree vehicular homicide. N.J.S.A. 2C:11-5. Prior to trial, the state moved to preclude Buckley from asserting a defense of remote causation at trial based upon Zerby’s failure to wear a seat belt. The state further moved for an order precluding evidence that: (1) Zerby would have survived had he been wearing the seat belt; (2) the location of the utility pole violated the Roadway Design Manual; and (3) Zerby would have survived had the pole been properly located. The state, in addition, requested a limiting instruction that Zerby’s failure to wear his seat belt was not a defense, and whether he was wearing a seat belt was not to be considered by the jury for any purpose.

Finding that the jury could consider Zerby’s failure to wear a seat belt as an intervening cause, the trial court denied the state’s motion. Although the court indicated its discomfort with permitting the jury to consider the utility pole’s location as an intervening cause, it denied the state’s motion with respect to that evidence as well, indicating that a hearing would be held at the time of trial to determine the admissibility of both categories of evidence. The Appellate Division granted the state’s motion for leave to appeal and affirmed, finding that both categories of evidence could be considered as potential intervening causes. The court granted the state’s motion for leave to appeal. 209 N.J. 99 (2012). Reversing the Appellate Division, the court noted that, at trial, the state will bear the burden of proving beyond a reasonable doubt that defendant caused Zerby’s death by driving recklessly. Citing N.J.S.A. 2C:1-13(a); State v. Delibero, 149 N.J. 90, 99 (1997). The statute, the court found, initially requires the jury to determine whether there is “but for” causation. N.J.S.A. 2C:2-3(a)(1). If the jury makes that threshold determination, the court ruled, and the offense requires the mens rea of recklessness, the causation inquiry is governed by the two-pronged standard of N.J.S.A. 2C:2-3(c). Under the first prong of that test, the statute predicates a finding of causation upon proof that “the actual result” was “within the risk of which the actor is aware.” Alternatively, the court noted, causation may be proven under the second prong of the statutory test: whether “the actual result” involves the “same kind of injury or harm as the probable result,” and whether it is “too remote, accidental in its occurrence, or dependent on another’s volitional act to have a just bearing on the actor’s liability or on the gravity of his offense.”

The court, on the state’s representation that it would be exclusively relying upon the first prong of the test, found that whether Zerby would have survived the collision had he been wearing a seat belt to be irrelevant to the threshold “but for” causation question: whether the fatal collision would have been avoided had Buckley not driven the Viper in the manner in which he did. The seat belt evidence was also irrelevant, the court held, to the issue of whether Buckley was aware that his manner of driving created a risk of a fatal collision.

Though it ruled the seatbelt evidence irrelevant to whether the defendant caused the death of another by driving recklessly, the court stated that the trial court, in its discretion, may permit evidence that Zerby’s seat belt was unbuckled at the time he was found, in order for the jury to understand the circumstances of the collision. Should such evidence be admitted, the court held, the jury must be instructed that the evidence is not relevant to causation, and should take care not to state or imply that it is directing a verdict on causation.

The court further held that evidence relating to the alleged discrepancy between the utility pole’s location and the guidelines in the Roadway Design Manual is also inadmissible on the issue of causation. As it found with respect to the seat belt evidence, the court found that the location of the utility pole was irrelevant not only as to “but for” causation, but also to whether Buckley was aware of the risk he was creating by his driving. The court reversed the decision of the Appellate Division and remanded the case to the trial court.

In State v. Dabas, No. 069498 (N.J. July 30, 2013), the court, in a unanimous opinion authored by Justice Albin, found that the trial court had abused its discretion by refusing to charge the jury that it may draw an adverse inference from a prosecutor’s investigator destroying his notes more than one year after an indictment had been returned. The notes had been written by the investigator as he questioned the defendant during a pre-interview occurring shortly after the defendant’s arrest.

Defendant Dabas was a part-time employee at a retail store in a mall. On August 24, 2004, he brought his wife, Renu, with him when he was scheduled to work a shift. As his wife was stocking shelves, the defendant went to a nearby liquor store to purchase a bottle of Scotch. He returned to the store, where he then drank two coffee mugs of Scotch and water. At 9:00 p.m., the defendant closed the store and walked with Renu to his parked minivan. As Dabas drove out of the lot with his wife seated beside him, his vehicle struck a tree and the airbags deployed. Shortly thereafter, witnesses observed Renu, unconscious, her body sprawled, half lying in the mall parking lot and half on the sidewalk, bleeding from her mouth, nose and ears. Dabas at the same time, was observed moving between the opened hood of his minivan and the driver’s seat; he was paying no attention to his wife, who was seriously injured.

Renu was transported to the hospital by paramedics, and she died three days later of blunt-force head injuries. After the ambulance left the mall parking lot at about 10:00 p.m., a South Brunswick patrol officer questioned the defendant, whose eyes were red and glassy, and who smelled of alcohol. Though the defendant admitted to drinking, he was unable to explain what occurred. The defendant was placed under arrest for driving while intoxicated and was read his Miranda rights. He was transported to a hospital, where blood samples were taken. Testing by a New Jersey State Police laboratory reflected a blood alcohol content (BAC) of .209. It was estimated that when the accident occurred, the defendant’s BAC was .23, about the three times over the statutory level defining a person as driving while intoxicated.

At police headquarters, an investigator from the Middlesex County Prosecutor’s Office conducted a “pre-interview” of the defendant. The “pre-interview,” consistent with the procedures of the prosecutor’s office, was not electronically recorded. The investigator testified that the defendant appeared “lucid” and “coherent.” As the defendant responded to questions, the investigator wrote down the answers given on a notepad.

At trial, the investigator, without referring to any notes, offered testimony about what the defendant had said during the “pre-interview.” He testified that he had destroyed his notes more than one year after the indictment had been returned, and did so in accordance with the standard protocols of his office. The investigator further testified that he had incorporated his notes into a typewritten report dated Feb. 15, 2006, and he referred to those notes while testifying.

The investigator stated that the defendant had been asked “open-ended questions” and admitted to drinking two coffee mugs of Dewar’s Scotch and water before entering the minivan and striking the tree. The investigator also stated he had asked the defendant why he hit his wife. The defendant’s response, he stated, was “she made me mad.” The defendant allegedly then expounded that following the crash, his wife left the minivan and refused to get back inside. In order to teach her “who the boss was,” he intended “to bump her with the van.”

At about 5:15 a.m., a taped statement, lasting about 15 minutes, was taken from the defendant. After acknowledging he understood his Miranda rights, the defendant was asked “mostly leading” questions by the investigator, which elicited mostly damning one-word responses from the defendant. The investigator testified that he had used his handwritten notes to prepare the questions. According to the investigator, “I would read him basically what he responded to earlier, and then he would respond yes or no.” His explanation for proceeding as he did was because: “I already had his answers. They were written down on my notepad. I basically ask the same question[s] that he had answered and just to keep it flowing, to keep it … cohesive and to not allow the tape to go back to being evasive.”

Though the defendant had been initially charged with aggravated assault, the charges were elevated to murder and attempting to leave the scene of a fatal motor vehicle accident, about four days later, one day after defendant’s wife died.

At trial, the prosecutor, eliciting from the investigator defendant’s statements during the “pre-interview,” and playing back the tape of the defendant’s one-word responses to the investigator’s leading questions, succeeded in convicting the defendant by using his own words against him.

The prosecutor argued that the defendant had deliberately driven his minivan into his wife, with the purpose of inflicting serious bodily injury, causing her death. In response, the defense maintained that Renu’s injuries were inconsistent with having been struck by a vehicle.

The trial judge permitted the jury to consider intoxication as a defense, and also instructed the jury on the lesser-included offenses of aggravated manslaughter and manslaughter. During the charge conference, defense counsel requested the court to instruct the jury that it could draw an adverse inference from the investigator’s destruction of his “pre-interview” notes. The court, finding that the state “is under no obligation to preserve handwritten reports prepared by officers in the field,” denied the request.

The defendant was found guilty both of murder and attempting to leave the scene of a fatal motor vehicle accident. The Appellate Division, reversing the conviction, found that the trial court had erred in not giving the adverse-inference charge requested by the defense. The Supreme Court affirmed the Appellate Division’s ruling.

The court noted that, in criminal cases, upon issuance of an indictment, a defendant has an automatic right to the broad discovery of the state’s evidence in support of its charges. That evidence, the court noted, must be produced by the state, pursuant to Rule 3:13-3(c)(2), without a request from the defendant. There is little question, the court noted, that the investigator’s notes of the defendant’s pre-interview statements constituted discoverable material. The prosecutor, the court noted, was required to make the statements available to the defendant, and defense counsel had no obligation to request discovery the prosecutor was obliged to produce. Defense counsel also had no obligation, the court held, to foresee that a prosecutor’s investigator was withholding notes of statements made by the defendant, and intended to destroy them. By not providing the notes to defense counsel, the court ruled, the prosecutor violated the clear rule governing postindictment discovery.

In so ruling, the court noted that it has repeatedly disapproved of law enforcement officers discarding interview notes before the prosecutor’s postindictment discovery obligations become operative under Rule 3:13-3(b), and it has expressly disapproved of the practice of destroying contemporaneous notes.

The court noted that the words in the interview report were filtered through an investigator who developed a distinct view of the case. Under the circumstances, the court noted, the potential for unconscious, innocent self-editing in transferring words, sentence fragments or full sentences into a final report was a real possibility. If there were differences between the notes and the final report, the court ruled, the defendant had a right to present those variations to the jury in his defense of the murder charge. He was unable to do that, however, because the investigator, by destroying his notes, made himself the sole judge of what actually was contained in them.

Because the notes had been destroyed in violation of the relevant rule, the court noted, the judge had authority to sanction the prosecutor pursuant to Rule 3:13-3(g). An adverse-inference charge, the court observed, is one permissible remedy for a discovery violation. Such a charge, the court ruled, provides a remedy to balance the scales of justice, and the trial judge, by not granting the defendant’s request for the charge to be given, abused its discretion. The judge’s failure to give the charge, the court held, was “clearly capable of producing an unjust result.” R. 2:10-2. •