When Do Criminal Witness Statements Have to be Produced to the State?

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

14-1-3174 State v. Brian Tier, N.J. Sup. Ct. (Timpone, J.) (13 pp.)

New Jersey’s Supreme Court recently decided a case regarding criminal witness statements.  In the case, the defendant was charged with first-degree kidnapping, N.J.S.A. 2C:13-1, and first-degree criminal attempt to commit murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1, after the police found him strangling his girl friend on the floor of his home.

For discovery, the defendant produced only a list of the names of the three witnesses he intended to call at trial, with no additional information.  The State countered with a request that defendant amend the disclosure to include dates of birth and addresses, as well as a proffer of each witness’s expected testimony. Defendant refused. The trial court ordered the disclosure, as well as for the defendant to label each witness as either character or fact.

Rule 3:13-3(b)(2)(C) states:

A defendant shall provide the State with all relevant material, including, but not limited to ․ the names, addresses, and birthdates of those persons known to defendant who may be called as witnesses at trial and their written statements, if any, including memoranda reporting or summarizing their oral statements. [R. 3:13-3(b)(2)(C).]

Based off of Rule 3:13, the Appellate Court reversed the trial court’s order, and the Supreme Court agreed, ruling that a witness’ written statement does not have to be produced if there is not one in existence.  In other words, the defendant does not have to write a witness statement that has not yet been put into writing. 

The Supreme Court further ruled that even though a defendant does not have to produce a written statement of an expected trial witness, a court can still order a defendant to identify witnesses as either fact or character.