T HIS WEEK THE NJ SUPREME COURT RULED THAT if a law enforcement officer’s notes are lost or destroyed before trial, a defendant, upon request, may be entitled to an adverse inference charge. Defendant, charged with sexual assault, was interviewed by law enforcement officers at which time he acknowledged having sexual relations with the alleged victim. Defendant later testified at trial that although he initially denied the allegations, after law enforcement repeated the details over and over again, stating that defendant would be permitted to go home if he complied, he admitted to the accusations. At trial, law enforcement admitted destroying hand written notes taken during interviews conducted with the defendant, pursuant to supervisors’ instructions not to retain contemporaneous notes.
The Court, on review, noted that Rule 3:13-3 encompasses the writings of any police officer under the prosecutor’s supervision as the chief law enforcement officer of the county. If a case is referred to the prosecutor following arrest by a police officer, or on a complaint by a police officer, local law enforcement is part of the prosecutor’s office for discovery purposes. The Court held that implementation of this retention and disclosure requirement is to be deferred for thirty days to allow prosecutors sufficient time to educate police officers. Thereafter, if an officer’s notes are lost or destroyed before trial, a defendant, upon request, may be entitled to an adverse inference charge molded to the facts of the case. However, the Court held that where, as in this case, a defendant neither requests an adverse inference charge before the jury instructions, nor raises the issue before filing a motion for a new trial, defendant is not entitled to such instruction.