419 (1995) (“the individual prosecutor has a duty to
learn of any favorable evidence known to the others acting
on the government’s behalf in this case, including the
police”); Pennsylvania v. Ritchie, 480 U.S. 39 (1987);
United States v Agurs, 427 U.S. 97 (1976) (the
prosecutor’s duty to disclose evidence favorable to
defendant is applicable even though there has been no
request by defendant); United States v. Bagley, 473 U.S.
667 (1985) (the prosecutor’s duty to disclose evidence
includes impeachment evidence). The duty to disclose
such evidence extends to quasi-criminal proceedings.
State v. Garthe, 145 N.J. 1 (1996).
The failure to provide exculpatory evidence will
constitute reversible error only when such evidence is
“material,” that is, where its disclosure might have
changed the verdict. Pennsylvania v. Ritchie, 480 U.S. 39
(1987); United States v. Bagley, 473 U.S. 667 (1985);
State v. Marshall III, 148 N.J. 89, cert. denied, 522 U.S.
850 (1997) (due process clause does not require
prosecutor to deliver his entire file to defense counsel);
State v. Carter, 91 N.J. 86 (1982).
In State v. Landano, 271 N.J. Super. 1 (App. Div.),
certif. denied, 137 N.J. 164 (1994), a murder defendant’s
due process rights were violated by state’s failure to
release evidence that its chief witness had committed
numerous armed robberies similar to charged robbery,
that witness and his closest associate committed earlier
armed robbery in which gun used to kill police officer in
charged robbery had been fired, that principal
identification witness’ earlier tentative identification of
defendant became positive on day that he was questioned
about bribing police officer, and that only eyewitness to
shooting of officer, and another witness, both viewed
defendant’s photograph and rejected him as perpetrator.
In State v. Rodriguez, 262 N.J. Super. 564 (App. Div.
1993), defendant’s due process rights were violated by
codefendant’s surprise incriminating testimony that was
offered by codefendant to curry favor with State on
another pending charge, in light of State’s failure to
inform defendant about pending charge which deprived
defendant of opportunity to cross-examine codefendant
on motivation for his testimony; codefendant’s counsel
admitted that he had not entered plea bargain on
pending charge to avoid placing obligation on State to
inform defendant of pending charge for use in cross-
examination.
In State v. VanRiper, 250 N.J. Super. 451 (App. Div.
1991), a municipal judge’s sua sponte amendment of
complaint to charge careless driving, rather than
improper entry of intersection controlled by stop or yield
sign, when it became apparent intersection was not
controlled by sign, deprived driver of opportunity to
prepare and defend against new charge, denied
fundamental fairness, and violated due process.Arizona v. Youngblood, 488 U.S. 51 (1988), held
failure of police to preserve potentially useful evidence is
not a denial of due process of law unless defendant can
show bad faith on part of police; requiring defendant to
show bad faith both limits extent of police’s obligation to
preserve evidence to reasonable bounds and confines it to
that class of cases where interests of justice most clearly
require it, that is, those cases in which police themselves
by their conduct indicate that evidence could form basis
for exonerating defendant. Failure of police to test semen
samples with newer test device, in investigation of sexual
assault of ten-year-old boy, did not violate due process
clause.California v. Trombetta, 467 U.S. 479 (1984), held
evidence must possess an exculpatory value that was
apparent before it was destroyed and defendant must be
unable to obtain the evidence by other reasonably
available means.State v. Marshall, 123 N.J. 1 (1991), cert. denied, 507
U.S. 929 (1993), ruled that defendant’s due process
rights were not violated when State cut out a portion of
tire from defendant’s automobile in order to photograph
the slit in the tire, despite defendant’s claim that an intact
tire could have been tested to determine if there were
other leaks besides the slit, thus corroborating
defendant’s story that he had pulled off into secluded area
where his wife was murdered because of a flat tire, where
conclusions of state’s expert were subjected to cross-
examination and defendant’s expert could have
conducted an identical examination even though part of
the tire had been excised.See also State v. Dreher, 302 N.J. Super. 408 (App.
Div.), certif. denied, 152 N.J. 10 (1997), cert. denied, 524
U.S. 943 (1998); State v. Montijo, 320 N.J. Super. 483
(Law Div. 1998); State v. Bohuk, 269 N.J. Super. 581
(App. Div.), certif. denied, 136 N.J. 29, cert. denied, 513
U.S. 865 (1994); State v. Gordon, 261 N.J. Super. 462
(App. Div. 1993); State v. Dohme, 223 N.J. Super. 485
(App. Div. 1988); State v. Colasurdo, 214 N.J. Super. 185
(App. Div. 1986); State v. Mercer, 211 N.J. Super. 388
(App. Div. 1986); State v. Hollander, 201 N.J. Super. 453
(App. Div. 1985); State v. Casele, 198 N.J. Super. 462
(App. Div. 1985); State v. Kaye, 176 N.J. Super. 484