cdTOCtest

A prosecutor must provide discovery material to a
defendant charged with careless driving and failure to
have a license in his possession since, if convicted, the
defendant is subject to imprisonment and license
suspension and since the request is not burdensome.
State v. Polansky, 216 N.J. Super. 549 (Law Div. 1986).

B. Exculpatory Evidence (Brady violations)

The rule from Brady v. Maryland, 373 U.S. 83, 83 S.
Ct. 1194, 10 L.Ed.2d 215 (1963), is that the prosecution
must not suppress evidence favorable to an accused where
the evidence is “material either to guilt or to punishment,
irrespective of the good faith or bad faith of the
prosecution.” Brady v. Maryland, 363 U.S. at 87. See
State v. Martini, 160 N.J. 248, 268-69 (1999); State v.
Nelson, 155 N.J. 487, 497 (1998), cert. denied, 525 U.S.
1114, 119 S. Ct. 890, 142 L.Ed.2d 788 (1999); State v.
Russo, 333 N.J. Super. 119, 134 (App. Div. 2000); State
v. Aguiar, 322 N.J. Super. 175, 185 (App. Div. 1999).

The Brady rule applies even when defendant makes
no formal request for exculpatory material. State v.
Knight, 145 N.J. 233, 245 (1996); State v. Nelson, 155
N.J. at 497-98; State v. Nelson, 330 N.J. Super. 206, 212
(App. Div. 2000). Exculpatory evidence includes not
only material that is directly exculpatory of a defendant,
but also evidence that may impeach the credibility of a
State witness. State v. Spano, 69 N.J. 231, 235 (1976);
State v. Russo, 333 N.J. Super. at 134; State v. Jones, 308
N.J. Super. 15, 41-42 (App. Div. 1998).

Awareness of existence of a criminal record, which is
peculiarly within the knowledge of law enforcement, is
imputable to the trial prosecutor for purposes of a Brady
claim based on non-disclosure of witness’s criminal
record, notwithstanding a lack of actual knowledge. State
v. Nelson, 330 N.J. Super. at 213.

Prosecutor’s failure to turn over original tapes of
capital murder defendant’s confession did not constitute
a Brady violation -- defendant had copies of the tapes and
the information was not exculpatory. State v. Morton,
155 N.J. 383 (1998).

IV. PROSECUTOR’S COMMENTS AND

CONDUCT

A. Failure to Object

Generally, if no objection was made to a prosecutor’s
allegedly improper remarks, the remarks will not be
deemed prejudicial. State v. Timmendequas, 161 N.J. at

576; State v. Frost, 158 N.J. at 83; State v. Ramseur, 106

N.J. at 323.

Failure to make a timely objection indicates that

defense counsel did not believe the remarks were

prejudicial at the time they were made. State v.

Timmendequas, 161 N.J. at 576; State v. Irving, 114 N.J.

427, 444 (1989). The failure to object also deprives the

trial court of an opportunity to take curative action. State

v. Timmendequas, 161 N.J. at 576; State v. Frost, 158 N.J.

at 84; State v. Irving, 114 N.J. at 444; State v. Bauman,

298 N.J. Super. 176, 207 (App. Div.), certif. denied, 150

N.J. 25 (1997).

B. Prosecutor Summations

Prosecutors are afforded considerable leeway in

closing arguments as long as their comments are

reasonably related to the scope of the evidence presented.

State v. Timmendequas, 161 N.J. at 587; State v. Frost,

158 N.J. at 82; State v. Harvey, 151 N.J. at 216; State v.

Harris, 141 N.J. 525, 559 (1995); State v. Williams, 113

N.J. 393, 447 (1988); State v. Bucanis, 26 N.J. 45, 56,

cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L.Ed.2d

1160 (1958). Although arguments in summation must

be limited to the evidence and inferences reasonably

drawn therefrom, the prosecutor may forcefully and

vigorously present the State’s case. State v. Papasawas,

163 N.J. 565, 615-17 (2000); State v. Chew, 150 N.J.

30, 84 (1997); State v. Feaster, 156 N.J. 1, 58-59 (1998);

State v. Harvey, 151 N.J. at 216.

“[A] prosecutor is entitled to sum up the State’s case

graphically and forcefully. It cannot be expected that

criminal trials will be conducted without some show of

feeling. Defense counsel traditionally make dramatic

appeals to the emotions of the jury. In these

circumstances, “a prosecutor cannot be expected to

present the State’s case in a manner appropriate to lecture

hall.” State v. Johnson, 31 N.J. 489, 510-11 (1960). See

State v. Pratt, 226 N.J. Super. 307, 323 (App. Div. 1988).

A prosecutor cannot argue facts not in evidence or make

baseless accusations, however. State v. Roach, 146 N.J.

208, 221 (1996).

In evaluating a prosecutor’s conduct, an appellate

court must consider (1) whether defense counsel made

timely and proper objections to the improper remarks;

(2) whether the remarks were withdrawn promptly; and

(3) whether the court ordered the remarks stricken from

the record and instructed the jury to disregard them.

State v. Timmendequas, 61 N.J. at 576; State v. Frost, 158

N.J. at 83; State v. Marshall, 123 N.J. at 153.