Newark, NJ- In any criminal case, regardless of the severity of the charges the accused individual is facing, the collection of evidence is crucial. Every case depends on how evidence is collected, preserved and presented to the court. Situations where police and investigators fail to present or have destroyed their original case notes are common and problematic.
A recent decision by the Superior Court of New Jersey, Appeals division affirmed that prosecutors, investigators and police have the burden of properly preserving the case notes they use in criminal cases
In the case, The State vs. Samander Dabas, the New Jersey Appellate Division was tasked with determining if the Middlesex County Prosecutors office “violated a discovery rule” when one of their investigators disposed of interview notes prosecutors later relied on the criminal trial of Samander Dabas.
Dabas was convicted of a serious crime based primarily on the statements he made to a prosecutor’s investigator hours after his arrest. Pursuant to the Prosecutor’s office protocol, Investigator Dando’s initial interview with Dabas was not recorded; instead Dando made handwritten notes about the events leading up to Dabas’s arrest.
Following Dabas’s preliminary two-hour interview, Dando then conducted another interview which was tape recorded. During the brief interview, Dando asked Dabas questions based in the notes he made in the prior interview. The court described the questions asked in the second interview as “leading” and “highly incriminating” to which Dabas gave mostly one word answers.
The handwritten notes of Dabas’s original interview remained in the prosecutors file for a year and a half, and were used by Dando to write up his final report. After that, the case notes were disposed of and were not made available to Dabas’s defense attorneys during the discovery phase of his case.
The discovery phase of any criminal case is critical for defense attorneys. They must be aware of all of evidence used to prosecute their clients in order to build a strong defense. If defense attorneys are not able to review that evidence, including any statements made by the defendant, they are hindering in attempts to attack, discredit or rebut a witness’s testimony.
When Dando gave his testimony in Dabas’s trial he made statements based on the notes he took during the initial interview, but Dabas’s attorney was never provided the original notes that have been the basis of cross-examination.
The trial court permitted these references to the pre-interview even though Dabas’s defense attorney objected to the fact that the case notes were destroyed. He also questioned whether Dando’s testimony was accurate since he was relying on potentially biased statements from his final report; and expressed that Dabas was denied the right to cross-examine Dando completely due to the absence of the notes.
The Appellate Court’s decision, written by Justice Albin, stated the danger of destroying case notes “should be self-evident.” Adding, Dando had already formed the opinion that Dabas was guilty, and his final case notes were “filtered” through an investigator who “had developed a distinct view of the case.”
This is an important decision for two reasons. One, it confirms the State’s obligation to preserve all evidence and the accused’s right to defend himself or herself based on all, no just some, of the information available. Secondly, it shows the importance of a lawyer understanding the law and the accused’s rights and asserting those rights aggressively and persistently at trial and, when necessary on appeal.
As a New Jersey criminal defense attorney, I understand that importance of my client’s constitutional rights and the power of an effective and forceful cross-examination. I will use my experience as a litigator to challenge the prosecutor’s evidence against you with the goal of helping you avoid conviction. If you are facing criminal charges, contact my Newark officer so that we may discuss your case and devise a defense strategy.
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