State’s Use of a Defendant’s Own Investigator to Testify Against His Own Client
The state’s use of a defendant’s own investigator to testify against his own client at the time of trial!
State vs. Nunez: New Jersey Appellate Division June 10, 2014.
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark
In this appeal the defendant was awarded a new trial after the state called, and the court allowed over the defendant’s objection, the defendant’s investigator to testify against the defendant. The defendant’s investigator was called only to support, or bolster, the testimony of another state witness regarding comments of the defendant. What the appeals court found violated the defendant’s rights and issued a new trial under a plain error review, was the fact that the investigator was the defendant’s witness. At no time should the defendant have to provide the state, any witness. Further, the court found allowing the state to use and defense witness to bolster their own case against the same defendant, for what ever purpose, is plain error of constitutional proportions. The defense should never have to worry about consulting any expert or witness for fear of any information obtained therefrom could be used against a defendant. The information learned becomes protected by the attorney client privilege and no discoverable to the state. Hence, the state’s use of the defendant’s investigator at the time of trial to testify against the defendant was plain error. The key to this case was prohibition of the state’s access to defense witnesses to bolster, for the admission of ‘prior consistent statement‘, the state’s witnesses made to another. The key to this ruling is the expansion of this Rule from only experts to non-experts witnesses.