municipal court proceeding, State v. Dolton, 146 N.J.
Super. 111 (App. Div.), certif. denied 74 N.J. 252 (1977).
Police misconduct found in connection with
investigations may have devastating effects on the
underlying convictions. See, e.g., State v. Gookins, 135
N.J. 42 (police officer who falsified breathalyzer results
and stole money from defendants warranted vacation of
guilty pleas and convictions); State v. Michaels, 136 N.J.
299, 323 (1994) (taint hearing required to determine if
investigative techniques used to illicit testimony from
suspected child abuse victims were reliable); State v.
Wright, 312 N.J. Super. 442, 452 (App. Div.), certif.
denied, 156 N.J. 425 (1998) (failure to identify existence
of confidential informant in police reports not warrant
dismissal, but practice must cease).
Concerning the effect of lost evidence, see State v.
Laganella, 144 N.J. Super. 268, 282-83 (App. Div.)
(indictment can be dismissed if egregious carelessness or
manifest and harmful prejudice to defendant where
evidence is lost), appeal dismissed per motion, 74 N.J. 256
(1976); State v. Lewis, 137 N.J. Super. 167, 172 (Law
Div. 1975) (several counts of indictment dismissed
where police lost exculpatory evidence). See also State v.
Casele, 198 N.J. Super. 462, 470 (App. Div. 1985)
(Determining whether mistakenly destroyed evidence
prejudiced defendant if “(1) whether the evidence was
material to the issues of guilt or punishment, (2) whether
defendant was prejudiced by its destruction, and (3)
whether the government had acted in bad faith when it
destroyed it.”) and United States v. Picanello, 568 F.2d
222 (1st Cir. 1978) (setting forth two-prong test to
evaluate materiality of lost evidence).
The remedy of dismissal of an indictment should be
sparingly used. State v. Montijo, 320 N.J. Super. 483,
490 (Law Div. 1998). In State v. Sugar, 84 N.J. 1 (1980),
the Court said that the conduct of officers who
intentionally eavesdropped on two conversations
between defendant and attorney did not require
dismissal of a homicide prosecution. Id. at 22. The Court
found that dismissal was not warranted where there was
no disclosure of trial strategy and publicity may not have
prejudiced witnesses. Id. To preserve fundamental
fairness, the New Jersey Supreme Court warned that they
would not hesitate to bar future prosecution based on
intrusions into the attorney-client relationships. Id. at
- The correct remedy was not dismissal, but the use of
the exclusionary rule for tainted information. Ibid. The
State bears the burden to show evidence at trial is free of
taint. Id.; State v. Gookins, 135 N.J. at 51. See also State
v. Montijo, 320 N.J. Super. at 490-93 (where
photographs and witness statements where lost, trial
judge exercised discretion, evaluating totality of
circumstances and determining if there was prejudice to
defendant, and found no need to dismiss indictment or
to suppress witness trial testimony); State v. Peterkin, 226
N.J. Super. 25 (discovery that officer failed to maintain
photo identification arrays resulted in suppression of
evidence from pre-trial photo identification and
suppression of other tainted evidence).III. CIVIL LIABILITY
When a police officer engages in misconduct, the
officer, supervising officer and the municipality may be
subject to civil liability. City of Oklahoma City v. Tuttle,
471 U.S. 808, 85 L.Ed. 2d 791, 105 S.Ct. 2427 (1985)
(citing Monell v. Department of Soc. Serv., 436 U.S. 658,
98 S.Ct. 2018, 56 L.Ed. 2d 611 (1978)); Schneider v.
Simonini, 163 N.J. 336, 361 (2000), cert. denied, ___
U.S. ___, 69 U.S.L.W. 3399 (2001) (adopting
“recklessness or deliberate indifference” standard for
supervisor liability); Wildoner v. Borough of Ramsey, 162
N.J. 375 (2000). The officer, supervisor and
municipality may be subject to claims under 42 U.S.C.A.
§ 1983 (“Section 1983") and the New Jersey Tort Claims
Act, N.J.S.A. 59:3-3. Schneider, 163 N.J. at 353;
Wildoner, 162 N.J. at 385-87.A police officer may be qualifiedly immune from
Section 1983 liability if the officer can establish (1) the
officer acted with probable cause, or (2) if no probable
cause existed, “a reasonable police officer could have
believed in its existence.” Kirk v. City of Newark, 109 N.J.
173, 184 (1988), quoted in, Schneider, 163 N.J. at 355;
Wildoner, 162 N.J. at 389; Connor v. Powell, 162 N.J.
397, 408-09, cert. denied, 120 S.Ct. 2220, 147 L.Ed.2d
251 (2000). “The same standard of objective
reasonableness that applies in Section 1983 actions also
governs questions of good faith arising under the Tort
Claims Act.” Wildoner, 162 N.J. at 387.For a discussion on liability arising from a motor
vehicle accident, see Tice v. Cramer, 133 N.J. 347 (1993).
Here, the Supreme Court held that absent willful
misconduct, a police officer is immune from injuries
arising from the pursuit of a fleeing vehicle despite
discretionary or ministerial negligence of the officer. This
immunity also applies to injuries of third-party motorists
when an officer responds to police calls. See also Canico
v. Hurtado, 144 N.J. 361 (officer must establish “good
faith” exception to immunity under Tort Claims Act,
N.J.S.A. 59:3-3); Fielder v. Stonack, 141 N.J. 101
(1995).