Criminal Discovery Demands By New Jersey Federal and State Criminal Defense Lawyers Need to Specifically Request Exculpatory Evidence

New Jersey Criminal Lawyers Schwartz Posnock

Every defendant in a federal or state criminal prosecution has a right to obtain exculpatory information that the prosecuting attorney has in his or her possession. Under the law, criminal defendants do not have to ask the prosecutor to disclose exculpatory evidence; rather, a prosecutor’s obligation to turn over exculpatory evidence is automatic. Practically speaking, however, reliance on the prosecutor, without more, to fulfill this obligation is not a good strategy to insure compliance.

To follow up on our recent post regarding a prosecutor’s obligation to disclose exculpatory information, at Schwartz & Posnock, we follow these simple steps to make sure that we obtain any Brady material that exists.
First, we make a detailed written discovery demand in every case. In each discovery demand we specifically request the disclosure of Brady material, and we do that in the number of, where the number of different contexts. For example, we specifically demand:

Favorable or Exculpatory Evidence: Any evidence, information, documents, and other materials favorable to the defendant in the possession of the Prosecutor or Attorney General, or of any police department involved in the investigation of the case against defendant, or of any agency or person and available to the prosecution through the exercise of due diligence, [Brady v. Maryland, 373 U.S. 83(1963)], including but not limited to the following:

  • The names and addresses of all witnesses to the above-referenced case, whether or not the State intends to call such witnesses at trial;
  • All statements regarding this case, whether written or oral, made by any witness in this case, whether or not the State intends to call such witnesses at trial;
  • The identity and whereabouts of any informants;
  • The names and addresses of all persons detained or arrested as suspects in this case and any statement or statements of such suspect(s);
  • Any information relevant to the credibility of any witness that the prosecution may call at trial, including the medical and psychiatric records of any alleged victim or witness which is in the possession of the Prosecutor or Attorney General;
  • Witness’ criminal records and impeachment evidence including all records of any felony or misdemeanor convictions and juvenile adjudications, and of the probationary status, whether felony or misdemeanor, and any other information relevant to impeachment of any witness to be called to testify against the defendant;
  • Agreements for Testimony: The full and completes statement, whether oral or written, of all promises, rewards and/or inducements of any kind made by the State, its prosecutors, agencies, or agents to induce or encourage the giving of testimony or information made to (1) any prospective witness whom the State intends to call as a witness at trial or any pre-trial hearing; (2) any witness who assisted the State in its investigation and preparation of the above-referenced case;
  • Any evidence to be used in rebuttal of the defense case; and
  • Names, addresses, and phone numbers of witnesses who may be called to testify pursuant regarding evidence of other crimes, wrongs, or acts to prove motive, opportunity, intent, preparation, plan, knowledge, identify or absence or mistake or accident when such matters are relevant to a material issue in dispute.

To insure that the State or Federal prosecutor is in compliance with their obligations under Brady, it is good practice to periodically follow up on the initial written discovery request by sending supplemental written discovery demands to the prosecutor, reiterating the prosecutor’s obligation to disclose Brady material. As our investigation of a case continues and we learn more about the State or Government’s case as the investigation progresses, we may specifically refer to newly disclosed facts and reference those facts in our supplemental Brady demands.

To discuss our pre-trial investigative methods and our discovery techniques, call us at to schedule a consultation at our offices in Monmouth County (Eatontown); Middlesex County (East Brunswick); Union County (Linden), and Essex County (Livingston). At Schwartz & Posnock, we look forward to obtaining positive result for your case.

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