from prison was clearly precluded by law. Second,
N.J.S.A. 2C:29-5c addressed the situation presented in
defendants’ case, specifically it barred defenses based on
irregularities in confinement, which includes general
complaints of prison conditions. And third, if a necessity
defense to escape were recognized, it would circumvent
the legislative purpose of preventing prisoners from
leaving confinement without authorization. The
legislature had already balanced the competing values
and concluded that “less than ideal” conditions do not
justify escape from prison. State v. Morris, 242 N.J. Super.
532 (App. Div.), certif. denied, 122 N.J. 408 (1990).
In a prosecution for escape, where the defendant had
contacted local police officers in Washington, D.C., but
had failed to contact any New Jersey authorities or the
Federal Bureau of Investigation to turn himself in, he was
precluded from asserting the defense of necessity as a
matter of law. State v. Stewart, 196 N.J. Super. 138 (App.
Div.), certif. denied, 99 N.J. 212 (1984).
B. Procedural Issues and Burden of Proof
Justification and necessity are affirmative defenses.
Defendant has the initial burden of producing some
evidence to support the defense. That evidence, however,
only becomes relevant when the essential elements of the
crime have otherwise been established. The State must
then negate the defense beyond a reasonable doubt.
N.J.S.A. 2C:3-1a; State v. Harmon, 104 N.J. 189, 206-
07 (1986); State v. Tate, 194 N.J. Super. 622, 633-34
(Law Div.), aff’d, 198 N.J. Super. 285 (App. Div. 1984),
rev’d on other grounds, 102 N.J. 64 (1986).
It is proper to conduct a pretrial hearing to determine
whether a defendant will be permitted to assert the
defense of duress or necessity. State v. Morris, 242 N.J.
Super. 532 (App. Div.), certif. denied, 122 N.J. 408
(1990).
DISCOVERYDISCOVERYDISCOVERYDISCOVERYDISCOVERY
(See also, SUBPOENAS, this Digest)
I. DISCOVERY BY DEFENDANT
A. Generally
See R. 3:13-3(c).B. Defendant’s Request for Specificity (See also, INDICTMENT, this Digest)
R. 3:7-5 provides that the trial court shall order a bill
of particulars if the indictment or accusation is not
sufficiently specific to enable defendant to prepare a
defense. See State v. Mello, 297 N.J. Super. 452, 462-63
(App. Div. 1997); State v. Menter, 293 N.J. Super. 330,
336-37, 348, 367, 373 (Law Div. 1995). Defendant
shall seek such a bill pursuant to R. 3:10-2 (motions) and
clearly point out the particulars sought; the prosecutor
shall furnish it within 10 days of the court’s order. See
State v. M.L., 253 N.J. Super. 13, 19 (App. Div. 1991),
certif. denied, 127 N.J. 560 (1992). Further particulars
may be ordered when defendant makes a prompt
demand, and a bill may be amended at any time subject
to such conditions as the interest of justice requires. Any
particulars already furnished to defendant pursuant to R.
3:13-3 and 4 are not subject to an application under this
rule.C. Confidential and Secret Materials
1. Grand Jury Transcripts
R. 3:6-6(b) and R. 3:13-3 grant a defendant a right
to discovery of the grand jury proceedings leading to his
or her indictment, but the prosecutor may move for a
protective order pursuant to R. 3:13-3(f). See State v.
Wright, 312 N.J. Super. 442, 449 (App. Div.), certif.
denied, 156 N.J. 425 (1998). The standard for discovery
of state grand jury transcripts of another matter is
whether a strong showing of particularized need
outweighs the public interest in maintaining grand jury
secrecy. See State v. Ciba-Geigy Corp., 240 N.J. Super.
511, 517 (App. Div. 1990); State v. CPS Chemical Co.,
Inc., 198 N.J. Super. 236, 241-45 (App. Div.), appeal
denied, 105 N.J. 502 (1985).2. Scientific and Medical Reports
R. 3:13-3(c)(3) (formerly R. 3:13-3(a)(4)) permits
defendants to obtain reports and results of physical or