Motion to Dismiss for Failure to Provide Discovery

September 29, 2010

One of the most important aspects of a municipal court criminal or traffic matter is the discovery process. Rule 7:7-7 provides the defendant with the absolute right to receive discovery consistent with the rule. Remember, the pertinent discovery must be requested in the proper manner proscribed by the rules.

In most cases, including DWI and drug charges, the state will rely upon police reports, lab certificates of analysis, chain of custody documents, alcotest readings, etc. to prove the case. A such, a defendant is entitled to information that the state plans to rely upon. Additionally, a defendant is entitled to exculpatory evidence. The rules of court and case law enumerate specific items that should be provided to a defendant in a prosecution. In addition, the defendant can always ask for and is entitled to relevant discovery.

The question is what happens when that discovery is requested but not provided. In State v Holup, the Superior Court of New Jersey examined this issue and proscribed the proper procedure for counsel to follow when such a situation arises.

Ordinarily, a court should not dismiss a case for failure to produce discovery. However, the Court in Holup held that if the appropriate motion is filed giving notice the your adversary that discovery has not been received, with a request that a time be set by the court for the production of said discovery, then a failure to do so after the time allotted may lead to a dismissal of the charges upon application by counsel.

This is an important decision because it recognizes that the discovery process is probably the number one reasons why court cases drag on and on and on. Multiple appearances by counsel and litigant can lead to skyrocketing legal fees, transportation cost, expert witness fees, waste of time, and can result in prejudice to either party.

I know this to be the case because I practice nothing but criminal and traffic defense law (and some immigration). Accordingly, I make it a habit to always file a Holup motion early on in the case to set an appropriate time limit for the state to produce the discovery.

This is also why I get SO incredibly frustrated when a judge signs one of these Orders only to wimp out on enforcing the Order, essentially assisting the state in the production of discovery (which is strictly barred) by giving the state more time.

Just today I appeared in a municipal court (name omitted) where this happened. To make matters worse, after making my motion to dismiss, the judge would not set a new time limit to produce discovery. This was after he signed an Order limiting the time for production, an Order that was 20 days overdue.

What are the options when this happens? Appeal. The defendant certainly has the right to an interlocutory appeal from a decision such as this. But that can result in more lawyers fees and court expenses. In this particular instance, although the appeal will take MANY additional hours, I may do it pro bono, as my client is not in a position to fund it. The ruling was not fair and should be overturned.