judicial opinions. Based upon their examination, the
Court expressed its reluctance to endorse HGN testing
based only upon a survey of other judicial opinions.
Accordingly, the Court ruled that “[w]hile it may very
well be that HGN testing can meet the Frye test, we
believe that the case which decides the issue for all other
cases in New Jersey should be grounded in sufficient
expert testimony to assure defendants and the State alike
that a conviction for driving under the influence, when
based in part on HGN testing, is a conviction grounded
in reliable scientific data.” The court in Doriguzzi, did
not, however, make a determination concerning the use
of HGN testing to establish probable cause to arrest. Id.
J. Trial-Evidence & Procedure
- Pre-Trial Discovery, R. 7:7-7
Under the provisions of R. 3:13-3(c) and R. 7:7-
7(b), a request for discovery made directly to a police
department or law enforcement agency is inappropriate
and does not satisfy the requirement of the Court Rules.
The responsibility for providing discovery to the defense
belongs exclusively to the prosecutor. State v. Malsbury,
186 N.J. Super. 91, 97-98 (Law Div. 1982), disapproved
on other grds., State v. Matulewicz, 198 N.J. Super. 474,
483 (App. Div. 1985), disapproval mod. 101 N.J. 27
(1985); State v. Polasky, 216 N.J. Super. 549, 554-556
(Law Div. 1986); State v. Tull, 234 N.J. Super. 486, 494
(Law Div. 1989) [disapproved on other grounds in Ford];
State v. Prickett, 240 N.J. Super. 139, 145-147 (App. Div.
1990). Police and law enforcement agencies can and
should make every effort to supply documents in their
possession to the prosecutor, but police agencies should
not provide these materials directly to defense counsel or
defendants.
A discovery demand or Court Order which is
interrogatory in scope and content is contrary to court
rules (R. 3:13-2 & R. 7:7-6) and case law, State v. Tate,
47 N.J. 352 (1966); State v. Ford, 240 N.J. Super. 44, 51-
52 (App. Div. 1990).
In State v. Prickett, 240 N.J. Super. 139 (App. Div.
1990), the Appellate Division made clear that the legal
responsibility for handling pre-trial discovery in the
municipal court is that of the municipal prosecutor, and
that it is a responsibility which can not be delegated to
others, in particular to the records unit of the police
department. Where a municipal prosecutor has failed to
fulfill a discovery obligation, the remedy for the defense
is not to seek a dismissal, but to comply with the
controlling Court Rules, R. 3:13-3(f) [now R. 7:7-7(f)
and (g)].
In State v. Ford, 240 N.J. Super. 44 (App. Div. 1990),
disapproving & mod. State v, Tull, 234 N.J. Super. 486
(Law Div. 1989), the Appellate Division had the
opportunity to address excessive and overly burdensome
discovery demands by defendants and defense counsel in
DWI cases, in particular the excessive discovery of the
type ordered in Tull. The court concluded that discovery
in a DWI case is limited. In DWI cases, where the
defense seeks production of discovery beyond that
routinely provided, the defense has the burden of
establishing the need for the additional discovery by
providing particular facts that give rise to a basis for
distinguishing the case from the usual or run of the mill
DWI case. Routine discovery in a DWI case will consist
of the following items: full identification of the breath
test instrument used to test the defendant, the date it was
first placed in service by the State, the type of instrument
used, including the manufacturer, model number and
results of the coordinator’s periodic testing of the
instrument [N.J.A.C. 13:51-3.4] for approximately one
year to include the next testing after defendant’s test and
the results and all reports and relevant documents signed
by defendant pertaining to his condition of sobriety
including blood and urine tests. The court also
advocated and encouraged the use of the “one time and
one time only” principle as a curb against discovery abuse
and delay. See also State v. Laurick, 231 N.J. Super. 464,
473-474 (App. Div. 1989), mod. on other grds. 120 N.J.
1 (1990), cert. denied 498 U.S. 967, 111 S.Ct. 429, 112
L.Ed.2d 413 (1990).In State v. Holup, 253 N.J. Super. 321, 326 (App.
Div. 1992), the Appellate Division reaffirmed the rule
requirements pertaining to compliance with pre-trial
discovery procedures by the State. Where the defense
claims there has been non-compliance with the court
rule, it is the responsibility of the defense to present a
formal written motion with appropriate and supporting
law, and particular facts [which] give rise to a basis for
distinguishing the case from the usual or run of the mill
DWI case.State v. Young, 242 N.J. Super. 467 (App. Div. 1990),
held that a discovery order for pre-trial production of
breath test reagent ampoules for independent testing by
the defense was inappropriate. Absent some preliminary
reasonable showing by the defense that the breath test
results are inappropriate or that the ampoules used have
not been randomly sampled and spot checked by the