Order and
Rule Amendments – Supreme Court Action on the Criminal Practice Committee
Report on Implementing the Pre-Indictment and Post-Indictment Recommendations
of the Joint Committee on Criminal Justice
SUPREME COURT OF NEW JERSEY
It is ORDERED that the attached amendments to the following Rules Governing
the Courts of the State of New Jersey are adopted to be effective September 1, 2016: Rules 3:4-2
and 3:4-6 (new); and
It is
FURTHER ORDERED
that the attached amendments to the following Rules Governing the Courts of the
State of New Jersey are adopted to be effective May 20, 2016: Rules 3:6-2, 3:8-2,3:8-3,3:9-1,3:10-2, 3:12-1, and 3:13-3.
Dated: April12, 2016
For the Court,
source http://www.judiciary.state.nj.us/notices/2016/n160418a.pdf
Chief Justice
3:4-2. First Appearance
After Filing Complaint
@2 Time of First Appearance.
[Without unnecessary delay, following] Following the filing of a complaint the defendant
shall be brought before a judge for a first appearance as provided in this
Rule. If the defendant remains in custody, the first
. appearance
shall occur within 72 hours after arrest, excluding holidays, and shall be before a judge
with authority to set bail for the offenses charged. If a defendant is released on a complaint-summons,
the
first appearance shall be held no more than 60 days after the issuance of the complaint-summons
or the defendant's arrest.
,{lU First
Appearance: Where Held. All first appearances for indictable offenses shall occur at a centralized location and
before a judge designated by the Assignment Judge. If the defendant is
unrepresented at the
first appearance,
the court is
authorized to assign the Office of the Public
Defender to represent the defendant for purposes of the first appearance.
~ [(Q)] Procedure in
Indictable Offenses. At the defendant's first appearance
before a judge, if the defendant is charged with.an indictable offense, the judge shall: ill give the defendant
a copy of the complaint and inform the
defendant of the
charge:
m inform the defendant of the right to remain silent and that
any statement may
be used against the defendant;
.Q.l inform the defendant of the right to
retain counsel
and, if
indigent, the right to
be represented by the public defender; ·
.(1} ask the defendant specifically whether he or she wants counsel and record
the defendant's
answer on the complaint;
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.{§} provide
[if] the defendant who asserts indigence [, and does not affirmatively, and
with understanding, waive the right to counsel, assure that] with an
application for public defender services, which the defendant [completes the
appropriate application form for public defender services and files it with·the criminal
division manager's
office] shall complete and submit at that time for immediate processing by the court,
unless the defendant affirmatively and knowingly waives the right to counsel;
@ inform the
defendant that there is a pretrial intervention program and where and how an
application to it may be made;
ill inform
the defendant that there is a drug court program and where and how to make an
application to that program;
!ID[Z] inform the
defendant of his or
her right to have a hearing as to probable
cause and of his or her right to indictment by the grand jury and trial by
jury, and if the
offense charged may be tried by the court upon waiver of indictment and
trial by jury,
the court shall so inform the defendant. All such waivers shall be in writing , signed by
the defendant, and
shall be filed and entered on the docket. If the complaint charges an
indictable offense which cannot be tried by the court on waiver, it shall
not ask for or
;·i. .... .··:
accept a plea to the offense;
00 [ill admit the defendant to bail as provided in Rule
3:26; and
L1Ql schedule a
pre-indictment disposition conference to occur no later than 45
days·after the date of the first
appearance.
@ [(~)] Procedure in
Non-Indictable Offenses. At the
defendant's first
appearance before a judge, if the defendant is charged with.§. [an] non-indictable
offense, the judge shall:
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ill give the
defendant a copy of the.complaint and inform the
defendant of the
charge;
m inform the defendant of the right’ to remain silent and
that any statement may· be used against
the defendant;
m inform
the defendant of the right to
retain counsel and, if indigent and
· entitled by law to the appointment of counsel, the right to be represented by
a public
defender or assigned counsel; and
.(1} assign counsel, if the defendant is indigent and entitled by law to the
appointment of counsel, and does not affirmatively, and with understanding, waive the right to counsel.
~ [(9.)] Trial of Indictable
Offenses in Municipal Court. If a defendant who is charged with an indictable offense that may be tried
in Municipal Court is brought before a Municipal Court, that court may try the matter provided that the defendant waives the rights to indictment
and ·trial by jury. Thewaiversshallbeinwriting,signedbythe defendant, and approved by the county prosecutor,
and retained by the Municipal Court.
ill: [~)]Waiver of First Appearance
by Written Statement. Unless otherwise ordered by the court, a defendant who is represented by an attorney and is not incarcerated may waive the first appearance by filing , at or before the time fixed for the first appearance, a written
statement in a form prescribed by the Administrative Director of the Courts, signed by the attorney,
certifying that the defendant
has:
· ill received a copy of the complaint and has read it or the ·attorney has read it ,....
and explained
it to the defendant;
m understands the substance of the charge;
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ill been
informed of the right to remain silent and that any statement may be used against the defendant;
ffi been
informed that there is a pretrial intervention program and where and how an application to it may
be made; and
@ been informed of the
right to have a hearing as to
probable cause, the
right to indictment by the grand jury and trial by jury, .and if applicable, that
the offense charged may be tried by the court upon waiver of indictment and trial by jury, if in
writing and
signed by the defendant.
At the time the written statement waiving the first appearance is filed with the court, a copy of that written
statement shall be provided to the Criminal Division Manager's office and to the County
Prosecutor or the Attorney General, if the Attorney General is the prosecuting
attorney. The court shall also notify counsel of the date of the pre-indictment disposition conference, which shall occur no later than 45 days after the date of the first appearance.
Source- R.R. 3:2-3(b), 8:4-2
(secc>nd sentence). Amended July 7, 1971 effective September 13, 1971;
amended April 1, 1974..~ff~ctive immediately; text of former Rule 3:4-2
amended and redesignated paragraphs.(a) and (b) and text of form er Rules 3:27- 1 and -2 amended and
incorporated into Rule 3:4-2, July 13, 1994 to be effective January 1, 1995; paragraphs (a) and (b) amended June 28, 1996 to be effective September 1, 1996; paragraph (b) amended January 5, 1998 to be effective February 1, 1998; caption amended, paragraphs (a) and (b) deleted, new paragraphs (a), (b), (c), and (d) adopted July 5, 2000 to be
effective September 5, 2000; new paragraph (e) adopted
July 21, 2011 to be effective September 1, 2011; paragraph (a) amended, new
paragraph (b) added, former paragraphs (b), (c), and (e) amended and redesignated as paragraphs (c), (d), and (f), and former paragraph (d) redesignated as paragraph (e) April12, 2016 to be effective September 1, 2016.
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1:A:.6.... Pre-Indictment Disposition Conference
The court shall conduct a conference for the purpose of discussing and/or
finalizing any pre-indictment
dispositions. The
conference shall be conducted on the record . in open court in the presence of the
prosecutor. the defendant and defense counsel.
Note: Adopted April12, 2016 to be
effective September 1, 2016.
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·..
3:6-2. Objections to
Grand Jury and Grand Jurors
The prosecuting attorney or a defendant, after
being held to answer a complaint
charging an indictable offense or after indictment, may, in writing,
challenge the array of the grand jury which has returned or is expected to
return the indictment on the ground that it was not selected, drawn or summoned
according to law, and may
challenge an individual juror on the-ground that the juror is not legally qualified. All
such challenges shall be made within 30 days of the service of the complaint or
no later than at the Initial Case Disposition Conference (ICDC) that is
scheduled pursuant toR. 3:9-1(e)
[arraignment/status conference]. For good cause shown, the court may
allow the motion to be brought at any time. Such challenges shall be tried by a judge
designated
by the Assignment Judge. If a defendant has already been indicted, such
challenges may be the basis of a motion to dismiss the. Indictment.
Note: Source-R.R. 3:3-2(a) (b); amended July 13, 1994 to be
effective January 1, 1995~ amended April12, 2016 to be effective May 20, 2016.
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3:8-2. Joint Representation
No
attorney or law firm shall be permitted to enter an appearance for or represent
more than one defendant in a multi-defendant indictment without securing
permission of the
court.
Such motion shall be made in the presence of the defendants sought to be represented as.early as practicable in
the proceedings but no later than the arraignment [arraignment/status conference] so as to avoid delay of the trial. For good cause shown, the court may
allow the motion to be brought at any time.
Note: Source-R.R. 3:5-4(b). Adopted July 16, 1979 to be effective September 10, 1979; amended. July 13, 1994 to
be effective January 1, 1995; amended April12, 2016 to be effective May 20,
2016.
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3:8-3. Representation by
Public Defender
The criminal division manager's office shall receive
applications for services of
the Public Defender and shall determine indigence. A defendant who
qualifies for service shall be referred to the Office of the Public Defender no
later than the [pre- arraignment interview] arraignment. The defense counsel
appointed by the Office of the Public Defender shall promptly file an
appearance. Representation of a defendant by the Office of the Public
Defender shall continue through direct appeal from conviction, post-conviction
proceedings for which the Rules of Court provide assigned counsel, and appeals from
those proceedings.
Note: Adopted July 5, 2000 to be effective September 5, 2000; amended
April12, 2016 to be effective May 20, 2016.
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·..
3:9-1. [Prearraignment Conference] Post-Indictment Procedure: Arraignment;
Meet and Confer; Plea Offer; [Arraignment/Status Conference;] Conferences;
Pretrial Hearings; Pretrial Conference · ·
.@1 [Prearraignment
Conference.] Post-Indictment Procedure. [After] When an indictment is [has been] returned, or an
indictment sealed pursuant toR. 3:6-8 is [has been] unsealed, a copy of the indictment, together with all available [the] discovery as
provided
for in R. 3:13-3(b)(1) for each defendant named
therein, shall be either delivered to the criminal division manager's office, or be available
through the
prosecutor's office[, within seven days of the return or unsealing of the indictment].
If a plea offer is tendered, it must be in writing and should be included in the discovery
package. [After] Upon the return or unsealing of the indictment the defendant shall be
notified in writing by the criminal division manager's office of the date, time and
location
to appear for [a prearraignment conference] arraignment which shall occur within [21] '.
14 days of the return or unsealing of the ;i~dictrfl~nt.:'[At the prearraignment conference the defendant
shall be: informed of the
charges; notified in writing of the date, place and time for the arraignment/status conference; and, if the defendant so requests, be allowed to apply for pretrial intervention. The criminal division manager's office
shall not otherwise advise the defendant regarding the case.] The criminal division manager's office shall ascertain whether the defendant is
represented by counsel and that an
appearancehasbeenfiledpursuanttoRule3:8-1. Uponreceiptoftheindictmentby the criminal division manager's
office, counsel for the defendant shall immediately be notified
electronically of the return or unsealing of the indictment and the date. time
and location
of the
arraignment. If the defendant” is unrepresented, the criminal division manager's office shall ascertain whether ·th~d~f~nda~~has completed an application
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form for public defender ser\tices and the status of that application. [, if not, whether
the defendant can afford counsel. If indicated that the defendant cannot afford
counsel, the defendant shall be required to fill out the Uniform Defendant
Intake Report. If a defendant does not appear for a prearraignment conference,
the criminal division manager shall notify the criminal presiding judge who may
issue a bench warrant. No prearraignment conference shall be required where the
defendant has counsel and the
·criminal
division manager's office has established to its satisfaction: (1) that an
appearance has been filed under Rule 3:8-1; (2) that if the defendant is represented by the
public defender discovery has been· obtained, or if the defendant has retained
private counsel, discovery has been requested pursuant toR. 3:13-3(b)(1), or
counsel has affirmatively stated that discovery will not be requested, and (3)
that defendant and counsel have obtained a date, place and time for the
arraignment/status conference.]
[ .(Q). Meet and Confer
Requirement; Plea Offer. Prior to
the arraignment/status conference the prosecutor and the defense attorney
shall discuss the case, including any plea offer and any outstanding or' anticipated motions, and shall report
thereon at the arraignment/status conference. The prose·c~torc:Hid defense counsel sh'all also confer
and attempt to reach agre.ement ori ~mydiscoJeri issues, including any issues pertaining
to discovery provided through the use of CD, DVD, e-mail,
internet or other electronic means. Any plea offer to be made by the prosecutor shall be in writing and
forwarded to the defendant's attorney.]
ili [.(Q)J Arraignment
[Arraignment/Status Conference]; In Open Court.
ill The arraignment
[arraignment/status conference] shall be conducted
in open court no later than 14 [50] days after the return or unsealing of the
indictment.,[,
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·•·...
unless the defendant did not appear at the prearraignment conference or was
unrepresented at the prearraignment conference. If the defendant did not appear
at the prearraignment conference or was unrepresented at the prearraignment
conference, the arraignment/status conference shall be held within 28 .days ·of indictment, unless
the defendantisafugitive.] .
~ At the
arraignment, the [The] the judge shall .ill advise the defendant of the substance of the charge~ [and] fill confirm that if
the defendant is represented by the public defender, discovery has been
obtained , or if the
defendant has retained private counsel, discovery has been requested pursuant toR. 3:13-3(b)(1), or
counsel has affirmatively stated that discovery will not be requested; (iii) confirm that
the defendant has reviewed with ~ounsel{he i~di~t~ent·~:~d·, if ~btained,the discovery; ilia if so requested,
allow the defendant to apply for. Pretrial intervention; and [The judge shall] .M. inform all parties
of their obligation to redact
confidential personal identifiers from any documents submitted to the court in
accordance with Rule 1:38-?(b).
~ .The
defendant shall enter a plea to the charges. If the plea is not guilty counsel
shall report on the results of plea negotiations,
and such other matters, discussed by the parties [pursuant toR. 3:9-1(b),] which shall
promote a fair and expeditious disposition of the case. Absent good cause, all motions shall
be filed with the court with the brief by the scheduled Initial Case
Disposition Conference (ICDC)
unless the opposing party bears the burden. [the dates for hearing of
motions and a
'". 'l••
further status conference, if necessary, shall be scheduled according to
the
differentiated needs of each
case.] The parties
shall meet and confer on motions. and . other matters, as instructed by the court. Each status
conference shall be held in open
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-.
courtwiththedefendantpresent. Ifthedefendantisunrepresentedatarraignment, upon
completion of an
application for services of the
Public Defender, the court may assign the Office of the Public
Defender to represent the defendant for purposes of the arraignment.
~ Meet and
Confer Requirement: Plea Offer. Prior to the Initial Case Disposition Conference
(ICDC), the prosecutor and the defense attorney shall discuss
•'
the case, including
any plea offer and any outstanding or anticipated motions, and shall report thereon at
the Initial Case Disposition Conference (ICDC). The prosecutor and defense
counsel shall also confer and attempt to reach agreement on any discovery
issues, including any issues pertaining to discovery provided through the use
of CD, DVD, e-mail,
internet or other electronic means. Any plea offer to be made by the prosecutor
shall be in writing and shall be included in the post-indictment discovery package. ·
@ Pretrial Hearings. Hearings to resolve issues relating to the
admissibility of statements
by defendant, pretrial
identifications of defendant, sound recordings, and motions to suppress shall be held prior to tlie;~retrialConference, unless, upon request of the movant at the time the
motion is filed, [otherwise
ordered by] the court orders that the motion be reserved for the
time of trial. [. be held
prior to the pretrial conference and, upon] Upon a showing of good cause, hearings as to
admissibility of other evidence may also be
held pretrial.
~Conferences. After
arraignment. the court shall conduct the Initial Case Disposition Conference (ICDC),
the Final Case
Disposition Conference (FCDC) and the Pretrial Conference, as described in paragraph (f) of this rule. At the Initial
Case
.~ 1 ·3-> ·_.. . .
·•···... ·..
'·
Disposition Conference (ICDC), if not set before. the court shall set
date(s) for
..
submission of briefs, the
hearing of pretrial
rr1otions, and schedule a status conference,
if necessary, according to the differentiated needs of each case. For
good cause, prior to the Pretrial Conference, the court may schedule a
Discretionary Case Disposition Conference (DCDC). In advance of the scheduled
status conference, the
prosecutor and the defense attorney shall discuss the case, including any plea
offer and any outstanding or anticipated motions, and shall report thereon at
the status conference. The
prosecutor and defense counsel shall al~o confer and attempt to reach an
agreement as to any discovery issues, including any issues pertaining to discovery
provided through the use of CD, DVD, email, internet or other electronic
means. Any ..
plea offer to be made by the prosecutor shall be in writing and forwarded
to· the . ·...
defendant's attorney. At the conclusion of the status conference, the court may in
its discretion set a trial date, schedule any necessary pretrial hearings, or
schedule another status conference. Each status conference shall be held in
open court with the defendant present.
ill [@}] Pretrial
Conference. If the court
determines that discovery is complete; that all motions have been decided or scheduled
in accordance with paragraph (d); and that all reasonable efforts to dispose of the case without
trial have been made and it appears that further negotiations ~ran additional status
conference will not result in disposition of the case, or progress toward disposition of the case, the
judge shall
conduct a pretrial conference. The corifererice~shall..b~'~onductedin open court with the prosecutor,
defense counsel and 'the defendant present. Unless objected to by a party, the
court shall ask the prosecutor to describe, without prejudice, the case including the
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salient facts and anticipated proofs and shall address the defendant to
determine that the defendant understands: (1) the State's final plea offer, if one exists; (2) the sentencing
exposure for the offenses charged, if convicted; (3) that ordinarily a negotiated
plea [will] should not be accepted after the pretrial
conference and a trial date has been set; (4) the nature, meaning an~ con~equences of the fact that a
negotiated plea [will] may not be accepted after the pretrial conference has
been conducted and a trial date has been set; and (5) that the defendant has a
right to reject the plea offer and go to trial and that if the defendant goes
to trial the State must
prove the case beyond a reasonable doubt. If the case is not otherwise disposed of, a pretrial
memorandum shall be prepared in a form prescribed by the Administrative
Director of
the Courts. The pretrial
memorandum shall be reviewed on the record with counsel and
the defendant present and shall be signed by the judge who, in consultation
with '.
counsel, shall fix the trial date. No admissions made by the defendant or
defendant's attorney at the conference shall be used against the defendant
unless the admissions are
reduced to writing and signed by the'deferidant a'rid defendant's attorney. The court shall
also inform the defendant of the right to be p·res~rita't trial, the trial date set, and the
consequences of a failure to appear for trial, including the possibility that the trial
will take place in defendant's
absence.
Note: Source-R.R. 3:5-1 . Paragraph (b)
deleted and new paragraph (b) adopted July 7, 1971 to be effective September 13, 1971;
paragraph (b)"amended July 29, 1977 to be effective September 9, 1977; paragraph
(a) amended and paragraph (b) deleted July
21 , 1980 to be effective September 8, 1980; paragraph (a)
amended July 14, 1992 to be effective September 1, 1992; first three sentences of former paragraph
(a) amended
and redesignated paragraph (c), last sentence of former paragraph
(a) amended and moved to new paragraph (e), new paragraphs (a), (b), (d) and (e)
adopted July 13, 1994 to
be effective January 1, 1995; paragraph (e)
amended July 12, 2002 to be effective September 3, 2002; paragraph (c)
amended July 16, 2009 to be effective September 1, 2009; caption, paragraph (a), paragraph (b) caption
and text, and paragraph (c)
:. '·,~·.... .;:... - 15-
..
amended December
4, 2012 to be effective January 1, 201.3; caption amended,
paragraph (a) caption and text amended, former paragraph (b) amended and
redesignated as paragraph (c), former paragraph (c) caption and text amended
and redesignated as paragraph (b), paragraph (d) amended, new paragraph (e) added, and former
paragraph (e) amended and redesignated as paragraph (f) April12, 2016 to
be effective May 20, 2016.
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3:1 0-2. Time and Manner of Making Motion; Hearing on Motion
@l Time and Manner of
Making Motion. Unless otherwise required by law, pre-
· indictment
motions shall be heard by the judge to whom the case is assigned. If the case
has not been assigned to a judge pre-indictment motions shall be made to the
Criminal Presiding Judge or designee,
except as otherwise provided by law. Unless otherwise required by law, or
ordered by the Criminal Presiding Judge, post-indictm~nt motions shall be made to the
judge to whom the indictment has been assigned. Unless otherwise instructed by
the court, at {At] the arraignment [arraignment/status conference] counsel
shall advise the court of their
intention to make motions . Absent good cause, all motions shall be filed
with the court with the brief by the scheduled Initial
Case Disposition Conference (ICDC) unless the opposing party bears the
burden. The dates for [filing,] briefing and for the hearing of such motions shall
be set by the court . either
before or at the Initial Case Disposition Conference (ICDC) [arraignment/status
conference]. Unless otherwise ordered by the court, motions and status
conferences shall be scheduled on the same day. The court may for good cause
shown and in the
interest of justice permit additional motions to be made thereafter. A
motion shall include all defenses and objections th~navaila'ble to the defendant.
.(Ql ... no change .{9 ... no change @ ... no change @} ... no change
NOTE: Source-R.R. 3:5-5(b)(2)(3)
and (4); caption amended,
former Rules 3:10-2, -3, - 4, -5 and -6
amended, redesignated and incorporated
into R. 3:10-2 as paragraphs (c), (d), (e), (a), and (b) July 13, 1994
to be effective January 1, 1995;
paragraph (a) amended April12, 2016 to be effective May 20, 2016. ·
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3:12-1 . Notice
Under Specific Criminal Code Provisions
A defendant shall serve written notice
ori the prosecutor
if the defendant intends
to rely on any of the following sections of the Code of Criminal Justice: Ignorance or
Mistake, 2C:2-4(c);
Accomplice: Renunciation Terminating Complicity, 2C:2-6(e)(3); Intoxication, 2C:2-8(d); Duress, 2C:2-9(a); Entrapment,
2C:2-12(b); General
Principles of Justification, 2C:3-1 to 2C:3-11; Insanity, 2C:4-1; Lack of Requisite State of Mind, 2C:4-2; Criminal Attempt (renunciation of criminal purpose) , 2C:5-1 (d); Conspiracy (renunciation of criminal
purpose)., 2C:5-2(e); Murder (affirmative defense, felony murder), 2C:11-3(a)(3); Criminal
Restraint, 2C:13-2(b); Theft by Extortion, 2C:20-5;
·Perjury
(retraction), 2C:28-1(d);
False Swearing (retraction), 2C:28-2(b); Controlled Dangerous Substances Near or On School
Property, 2C:35-7; and Distributing, Dispensing or Possessing Controlled Substances Within 500 Feet of Public Housing Facilities, Parks or
Buildings, 2C:35-7.1.
No later than seven
days before the Initial Case Disposition Conference (ICDC) that is scheduled pursuant toR. 3:9-1 (e)
[arraignment/status conference] the defendant shall serve on the prosecutor(a notice of intention to claim any of the defenses listed herein; and if the defendant requests or h~s·r~·2~iveddiscovery pursuant to R. 3:13- 3(b)(1), the defendant shall, pursuant toR. 3:13~3(b)(2), furnish the prosecutor
with discovery
pertaining to such defenses at the time the notice is served. [If, however, the arraignment/status conference was held within 28 days of indictment
pursuant to R. 3:9-
1(c), the defendant shall serve such notice on the prosecutor, along with the pertinent discovery, by a date to be determined by the trial judge, except in no event
later than 14 days after the date of the arraignment/status
conference.] The prosecutor shall, within
··~.
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'·.
14 days after receipt of such discovery, comply with R. 3:13-3(b)(1) and
(f) with respect to any defense for which the prosecutor has received notice.
For good cause shown the court may extend the time of service of any of the foregoing, or make such other
orders as the interest of justice
requires. If a party
fails to comply with this Rule, the court may take such action as the interest of
justice requires. The
action taken may include refusing to allow the party in default to present
witnesses
in support or in
opposition of that defense at the trial or to allow the granting of an adjournment or delay during trial
as the interest of justice
demands.
Note: Source-R.R. 3:5-9A. Former Rule 3:12 amended August 28, 1979 to be
effective September 1, 1979;
main caption amended and former Rules 3:12 and 3:12A amended, combined and redesignated as Rule
3:12-1, July 13, 1994, second paragraph
amended December 9, 1994, to be
effective January 1, 1.995; amended July
12, 2002 to be effective September 3, 2002; amended De.cerii.ber 4,.2012 to be effective January 1 2013; amended April12. 2016 to be
effective-May 20, 2016.
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3:13-3. Discovery
and Inspection
(g.) Pre-Indictment Discovery.... no change
(Q.) Post-Indictment
Discovery.
(1) Discovery by the Defendant. Except for good cause shown, the
prosecutor's discovery for each defendant named in the indictment shall be
delivered to the criminal division manager's office, or shall be available through the prosecutor's
office,
.'
[within seven days of] upon the
return or unsealing of the indictment. Good cause shall
include, but is not limited to, circumstances in which the nature, format, manner of
collation or volume of discoverable
materials would
involve an extraordinary expenditure of time and effort to copy. In such
circumstances, the
prosecutor may make discovery available by permitting defense counsel to
inspect and copy or photograph discoverable materials at the prosecutor's
office, rather than by
copying and delivering such materials. The prosecutor shall also provide defense counsel
with a listing of the
materials that have been supplied in discovery. If any discoverable materials
known to the prosecutor have
not been supplied , the
prosecutor shall also provide defense counsel with a listing of the
materials that are missing and explain why they have not been supplied. ..
If the defendant is represented by the public defender, defendant's
attorney shall obtain a copy of the discovery from the prosecutor's office or the criminal division
manager's office prior to [, or at,] the arraignment
[pre-arraignment conference]. However, if the defendant has retained private counsel, upon written
request of counsel submitted
along with a copy of ·counsel's
entry of appearance and
received by the prosecutor's office prior to the date of the arraignment [pre-arraignment conference], the
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prosecutor shall, within three business days, send the discovery to
defense counsel either by U.S.
mail at the defendant's cost or by e-mail without charge, with the manner of transmittal at the
prosecutor's discretion. Defense counsel shall simultaneously send a copy of the request for mail or e-mail discovery
[, along with any request for waiver of the pre-arraignment conference under R. 3:9-1
(a),] to the criminal division manager's office.
[If the defendant is unrepresented
at the prearraignment conference, a copy of the discovery shall be provided to defense
counsel upon request as provided for in the preceding paragraph, or at the arraignment/status
conference, which shall occur no later than 28 days after the return or unsealing of the
indictment.]
A defendant who does not seek discovery from the State shall so notify the criminal division manager's
office and the prosecutor, 'and the defendant need not provide discovery to the
State pursuant to sections (b)(2) or (f), except as required by Rule 3:12- 1 or otherwise
required by law.
Discovery shall include exculpatory information or material. It shall also include, but is not limited to, the following relevant material:
(A) books, tangible
objects, papers or documents obtained from or belonging to the defendant, including, but not
limited to, writings, drawings, graphs, charts, photographs, video and sound recordings,
images, electronically stored information, and any other data
or data compilations
stored in any medium from which information can be obtained and translated, i(he~essa'&, into reasonably
usable
form;
(B) records of statements ·or confessions,
signed or unsigned, by the
defendant or copies thereof, and a summary of any admissions or declarations against penal interest
made by the defendant that are known to the prosecution but not recorded.
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The prosecutor also shall provide the defendant with transcripts of all electronically recorded
statements or confessions by a date to be determined by the trial judge, except in no event later
than 30 days before the trial date set at the pretrial conference.
(C) results or reports of physical or mental examinations and of scientific
tests or experiments
made in connection with the matter or
copies thereof, which
are
within the possession, custody
or control of the .prosecutor; .. . .,.., .
(D) reports .or
records of prior convictions of the defendant;
(E) books, papers, documents, or
copies thereof, or
tangible objects, buildings
or places which are within the possession, custody or control of the prosecutor, including, but not limited
to, writings, drawings,
graphs, charts, photographs, video and sound recordings, images, electronically stored information, and
any other data or data compilations stored in any medium from which information can be obtained and
translated, if necessary, into
reasonably usable form;
(E) names, addresses, and birthdates of any persons whom the prosecutor
knows to have relevant evidence or information including a designation by the prosecutor
as to which of those persons may be called as·witne~s~s; . ..
(G) record of statements, signed or unsigned, by such persons or by co- defendants, which
are within the possession , custody or control of the prosecutor and any relevant
record of prior conviction of such persons. The prosecutor also shall provide the defendant with
transcripts of all electronically
recorded co-defendant and witness statements by a
date to be determined
by the trial judge, except in no event later than 30 days before the trial date set at
the pretrial conference, but only
if the prosecutor
intends to call that
co-defendant or
witness as a witness at trial.
-:23-......
..
"(
prosecutor;
(H) police reports that are within the possession, custody, or control of the
(l) names
and addresses
of each person whom the prosecutor expects
to call to
trial as an
expert witness, the expert's
qualifications, the subject matter on which the expert is expected to testify, a copy of the report, if any, of such expert
witness, or if no report is prepared, a statement of the facts and opinions to which the expert is
·expected
to
testify and a summary of the grounds for each opinion. If this information is not furnished
30 days in advance of trial, the expert witness may, upon application by the defendant, be barred from
testifying at trial.
(.J) all
records, including notes, reports and electronic recordings relating to ..
an identification procedure, as well as identifications made or attempted to be made.
(~) Discovery by the State. [Defense counsel shall forward a copy of the
discovery materials to the prosecuting
attorney ·no later than seven days before the arraignment/status
conference. If, however, the
arraignment/status conference was held within 28 days of indictment pursuant to R. 3:9-1(c), defense] Defense
counsel shall provide a copy of the discovery materials to the prosecuting attorney by a date
to be determined by the trial judge; except in no event ·later than 14 days after the date of the arraignment [arraignment/sta~us conference]. Defense counsel shall also
provide the prosecuting
attorney with a listing of the
materials that have been supplied in discovery. I f a n y d i s c o v e r a b l e m a t e r i a l s k n o w n t o defens~ ·bouris~l h a v e n o t b e e n s u p p l
i e d , d e f e n s e counsel also shall
provide
the prosecuting attorney with a listing of the materials that are missing and
explain why they have not been supplied . A defendant shall
provide the State
with all
relevant material, including, but not limited to, the following:
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·..
'•.
-..._
..
(A) results or
reports of physical ·ar
mental examinations and of scientific
tests or experiments made in connection with the matter or copies thereof, which
are within the possession, custody or control of defense counsel;
_(B) any
relevant books, papers, documents or tangible objects, buildings or places or copies thereof, which are within
the possession, custody or control of defense
counsel, including, but not limited to, writings, drawings, graphs, charts,
photographs, video and sound recordings, images, electronically stored
information, and any other data or data compilations stored in any medium from
which information can be obtained and translated, if necessary, into reasonably
usable form;
(C) the
names, addresses, and
birthdates of those persons ~nown to . . ..
defendant who may be called as witnesses at trial and their written
statements, if any, including memoranda reporting or summarizing their oral statements;
(D) written statements, if any, including any memoranda
reporting or summarizing the oral statements,
made by
any witnesses
whom the State may call as a witness at trial.
The defendant also shall provide the State with transcripts of all electronically recorded witness statements by a date to be determined by the trial judge, except in no event later than 30 days before the
trial date set at the pretrial conference.
(E) names and address
of each person whom the
defense expects to call to trial as an expert witness, the expert's
qualifications, the subject matter on which the e x p e r t i s e x p e c t e d t o t e s t i f y , a n d a c o p y o f t h e ·,r~port;:i f a n y , o f s u c h e x p e r t w i t n e s s , o r i f
. no
report is prepared, a
statement of the facts and opinions to which the expert is expected to
testify and a summary of the grounds for each opinion. If this
information is
-25-
·...
'·
not furnished 30 days in advance of trial the expert may, upon application by the prosecutor, be barred from
testifying at trial; ·: .·..
,,
(~) Discovery
Provided through Electronic Means. Unless otherwise ordered by the court, the parties may provide discovery
pursuant to paragraphs (a) and (b) of this rule through
the use of CD, DVD, e-mail, internet or other
electronic means. Documents provided through electronic means shall be in PDF format. All other discovery shall be provided in an open, publicly
available (non-proprietary) format that is compatible with any standard
operating
computer.
If
discovery is not provided in a PDF or open, publicly
available format, the transmitting party shall include a self-extracting computer program
that will enable the recipient to access and view the files that have been provided. Upon
motion of the recipient, and for good cause
shown, the court shall order that discovery be
provided in the format in which the transmi'ttin~iparty originally received it. In all cases in ..
which an Alcotest device is used, any Alcotest data shall, upon request, be provided for any Alcotest 7110 relevant to a particular
defendant's case in a readable digital database forniat
generally available to consumers in the open market. In all cases in which discovery is provided through electronic means, the transmitting
party shall also include a list of the
materials that were provided and, in the case of multiple disks, the specific disk on which they can be located.
(~) ... no change (Q.) .. . no change (~) ... no change (f) ... no change
: ' : ·~ . . . .
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-...
NOTE: Source-R.R. 3:5-11(a)(b)(c)(d)(e)(f)(g)(h). Paragraphs
(b)(c)(f) and (h) deleted; paragraph
(a) amended and paragraphs (d)(e)(g) and (i) amended and redesignated June 29,
1973 to be effective September 10, 1973. Paragraph (b) amended July 17, 1975 to be
effective September 8, 1975;
paragraph (a) amended July 15, 1982 to be effective September 13, 1982; paragraphs (a) .and (b) amended
July 22, 1983 to be effective
September 12, 1983; new paragraphs (a) and (b) added, former paragraphs (a),
(b), (c), (d) and (f)
amended and redesignated paragraphs (c), (d), (e), (f) and (g)
respectively and former paragraph (e) deleted July 13, 1994 to be
effective January 1, 1995;. Rule
. resignation
of July 13, 1994
eliminated December 9, 1994, to be effective
January 1, 1995; paragraphs
(c)(6) and (d)(3) amended June15, 2007 to be effective September 1, 2007; subparagraph
(f)(1) amended July
21,2011 to be effective September 1, 2011-; new subparagraph (c)(10) adopted July 19, 2012 to be
effective September 4, 20·12; paragraph (a)
amended, paragraph (b) text deleted, paragraph (c) amended and renumbered as
paragraph (b)(1), paragraph
(d) amended and renumbered as paragraph (b)(2), new paragraphs (b)(3) and (c)
adopted, paragraphs (e) and
(f) renumbered as paragraphs (d) and (e), paragraph (g) amended and renumbered as paragraph
(f) December4, 2012 to be
effective January 1, 2013; paragraph (b)
amended April12, 2016 to be effective May 20, 2016.
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