**1 SYLLABUS**  **This syllabus is not part of the Court’s**  **opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor**  **approved by the Court and may not summarize all portions of the opinion.** 

State v. Isaiah J. Knight (A
- 39
- 22 ) (087822 ) Argued October 10 , 202 3
-- Decided March 5 , 202 4
PIERRE
- LOUIS , J., writing for a unanimous Court. **In this appeal, the Court considers whether, pursuant to**  **New Jersey discovery**  **rules, the State can obtain from defense counsel an affidavit that constitutes physical evidence of a crime.**  **On June 1, 2021, Tyzier White was fatally shot as he stood outside of the**  **Neptune Lounge, a bar in Newark. Two men, known by their nicknames as “Zay” and “DJ Neptune,” witnessed the shooting. Both men provided sworn statements in**  **which they identified the shooter, and both lat**  **er selected defendant Isaiah Knight**  **’s photograph from a photo array.**  **On June 16, law enforcement arrested defendant**

**. On December 21, 2021, Zay**  **gave a statement to law enforcement, claiming**  **that a woman he met online**  **took him to a residence in Newark. At some point after arriving at the residence and spending time with the woman, three individuals,**  **including two masked men armed with guns, entered the room where Zay was. Zay**  **stated that he was given a written affidavit and told to copy it. The affidavi t**  **recanted Zay’s original statement to law enforcement identifying defendant as the**  **shooter. After Zay**  **copied the recanting affidavit, the captors released him**

**. Defendant’s sister and cousin were identified as two of the perpetrators and charged**  **with witness tampering. A superseding indictment also charged defendant with**  **second**

**- degree conspiracy to commit witness tampering and two counts of second** 

**** **degree kidnapping. On April 4, 2022, the State filed a motion to compel discovery of the**  **document Zay was allegedly forced to write, believing that defendant’s alleged co**

  ** conspirators turned it over to his counsel. The State’s certification in support of its** **motion to compel further alleged that DJ Neptune may have been forced to transcribe a similar recantat**  **ion and that defense counsel might possess that document as well** 

**. The trial court granted the State’s motion to compel discovery**  **, and**  **the Appellate Division affirmed the trial court’s order. The Court granted leave**  **to appeal. 253 N.J. 546 (2023). 2** 

HELD: **The sought**

**- after affidavit is physical evidence of the crime**  **s of witness**  **tampering and kidnapping for which defendant and others have been charged. It is therefore**  **subject to reciprocal discovery under Rule 3:3** 

**- 13(b)(2)(B) and (D)** 

**. 1**  **. Rule 3:13** 

**- 3 codifies New Jersey’s open** 

**- file approach to pretrial discovery in**  **criminal matters post**

**- indictment. Although a defendant has a right to automatic and**  **broad discovery of the evidence the State has gathered in supp ort of its charges upon**  **the issuance of an indictment, the R**  **ule also places the onus on defense counsel to supply the prosecution with broad categories of items. This is often referred to as**  **the “reciprocal discovery” rule or process. Under**  **Rule 3:13** 

**- 3(b**  **)(2)(B) and**  **(D), respectively, a defendant must provide the State with materials including “any**  **relevant books, papers, [or] documents, including “writings,” that are “ within the**  **possession, custody or control of defense counsel ,**  **” as well as with “**  **written statements, if any, . . .**  **made by any witnesses whom the State may call as a witness at trial.” Significantly, the**  **R ule “does not require discovery of a party’s**  **work product**  **consisting of internal reports, memoranda or documents made by**  **that party or the**  **party’s attorney or agents, in connection with the investigation, prosecution or defense of the matter.”**  **R. 3:13** 

**- 3(d) (emphases added).**  **(pp. 13**

**- 15)** 
**2**

**. Beyond the**  **R ule’s own exception, constitutional guarantees may bar compelling**  **disclosure of certain materials in certain situations.**  **The r**  **ight against self**

  ** incrimination applies when the accused is compelled to make a testimonial** **communication that is incriminating. However, both the state and Fifth Amendment privileges against self** 

**- incriminati**  **on are personal to the defendant and cannot be asserted by or on behalf of third parties. The Sixth Amendment to the United States**  **Constitution and Article I, Paragraph 10 of the New Jersey Constitution ensure the criminally accused the right to effective**  **assistance of counsel , which includes t**  **he right to a thorough defense investigation** 

**. In**  **State v. Mingo ,**  **the Court held that**  **defense counsel cannot be compelled, via discovery, to give the State inculpatory**  **expert materials it generated in preparation for trial unless the defense intends to**  **introduce or use that expert evidence at trial, noting that such a rule furthers the**  **right to effective assistance of counsel because defense counsel will not be deterred from “seek[ing] out expert evidence” to aid its**  **defense that may turn out to be unfavorable.**  **77 N.J. 576, 582 , 584**  **(1978 ). And o**  **ne year after the Mingo d**  **ecision, the Court expanded its holding to include statements or summaries of statements**  **made by a State witness to defense counsel when the defense does not intend to use the statements at trial.**  **State v. Williams , 80 N.J. 472, 480** 

**- 82**  **(1979 ).**  **The Court noted that “[i]t is abhorrent to our concept of criminal justice to compel a defendant,**  **under the guise of reciprocal discovery, to disclose to the State inculpatory evidence uncovered by defense counsel during his preparation for trial and then allow the**  **State to use that evidence as part of its case in chief.” Id.**  **at 479. (pp. 1**  **5- 21)** **3**

**3**

**. In this matter, neither party disputes that defense counsel played no role**  **whatsoever in the genesis of Zay’s affidavit. The affidavit’s creation was allege dly**  **the result of a kidnapping and witness intimidation plot for which defendant and two other individuals have been criminally charged. The affidavit, therefore, is physical**  **evidence of a crime and**  **does not fall within the exception to the discovery obligations set forth in Rule**  **3:13**

**- 3(d). Rather, the affidavit is a relevant writing**  **potentially in defense counsel’s possession pursuant to Rule 3:13** 

**- 3(b)(2)(B). The**  **affidavit would also fall under Rule 3:13** 

**- 3(b)(2)(D) as a written statement by a**  **witness that the State intends to call at trial. Compelling defense counsel to turn over in discovery an item in his possession that is physical evidence of a crime does**  **not trigger the same Sixth Amendment concerns found in Williams**  **and Mingo**

**. Further, because th**  **e discovery request**  **here is directed to counsel, not defendant, and**  **pertains to materials allegedly provided by others , defendant’s Fifth Amendment**  **right -- a right personal to defendant that cannot be asserted by or on behalf of third**  **parties -- is inapplicable here.**  **The unique facts of this case lead to the conclusion that the affidavits, as physical evidence of a crime, fall within**  **the discovery rules,**  **and no constitutional privilege stands in the way of their production.**  **The State can appropriately lay a foundation for the admission of the documents at trial by**  **sanitizing the manner in which it came into possession of the documents without**  **stating that the affidavits came from defense counsel.**  **(pp. 21** 

**- 24**  **)**
AFFIRMED and REMANDED to the trial court . CHIEF JUSTICE RABNER and JUSTICE S PATTERSON, SOLOMON, WAINER APTER , FASCIALE, and NORIEGA join in JU STICE PIERRE
LOUIS ’s opinion.**1 SUPREME COURT OF NEW JERSEY**  **A- 39**  **September Term 20 22** 

**087822**
**State of New Jersey ,**  **Plaintiff**

**- Respondent**  **,**

**v. Is**  **a iah J. Knight**  **, Defendant** 

**- Appellant** 

**. On appeal from**  **the Sup erior Court,**  **Appellate Division**

**. Argued**  **October 10, 2023 Decided**  **March 5, 2024**
**Brian P. Keenan, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public**  **Defender, attorney; Brian P. Keenan, of counsel and on the briefs)** 

**. Matthew E. Hanley, Special Deputy Attorney**  **General/Acting Assistan t**  **Prosecutor ,**  **argued the cause for respondent**  **(Theodore N. Stephens, II, Acting Essex**  **County Prosecutor ,**  **attorney ;**  **Matthew E. Hanley, of counsel and on the briefs).**  **William P. Cooper**

**- Daub, Deputy Attorney General,**  **argued the cause for amicus curiae Attorney General of New Jersey (Matthew J. Platkin, Attorney General,**  **attorney; William P. Cooper**

**- Daub, of counsel and on the**  **brief). 2**  **Claude Caroline Heffron argued the cause for amicus curiae Association of Criminal Defense Lawyers of New**  **Jersey (Pashman Stein Walder Hayden, attorneys; CJ Griffin, on the brief).** 

**JUSTICE P**  **IERRE**

**- LOUIS**  **delivered the opinion of the Court.**

**This appeal asks us**  **to determine whether ,**  **pursuant to our discovery rules,**  **the State can obtain from defense counsel an affidavit that constitutes**  **physical evidence of a crime** 

**. Defen**  **dant Isaiah J. Knight was charged with murder**

**.** 0F **1 A witness to the**  **murder gave a statement to police and identified defendant as the shooter.**  **Thereafter, the witness met a woman online, and the woman took him to a**  **residence in Newark** 

**. A**  **t some point after arriving at the residence and**  **spending time with the woman**  **in a room, three individuals, including two**  **masked men a**  **rmed with guns, entered the room**

**. The witness stated**  **that he was given a**  **written affidavit**  **and told to copy it. T he affidavit**  **recanted the**  **witness’s original statement to**  **law enforcement identifying**  **defendant as the shooter** 

**. After**  **the witness copied**  **the recanting affidavit, the capt ors**  **released**
**him ,**  **and he then**  **gave a statement to law enforcement regarding the ordeal.**

**1 We derive the facts**  **throughout this opinion from the pretrial record.** **3**

**Defendant’s sister and cousin were identified as two of the perpetrators and**  **charged with witness tampering** 

**. The State, operating under the belief that the recantation affidavit was**  **given to defendant’s attorney, moved to compel discovery of the affidavit from**  **defense counsel. Defendant objected , but t**  **he trial court granted the State’s motion to compel. Defendant appealed,**  **clai ming that**  **defense counsel cannot be compelled**  **to turn over the**  **affidavit pursuant to this Court’s precedent and**  **constitutional privileges in the Fifth and Sixth Amendment**  **s . The Appellate**  **Division disagreed and**  **affirmed. We granted defendant’s motion for leave to appeal and now affirm. The**  **sought**

**- a**  **fter affidavit is physical evidence of the crime s**  **of witness tampering and kidnapping for which defendant and others have been charged. As such,**  **the affidavit is subject to reciprocal discovery under Rule 3:3** 

**- 13(**  **b)(2)(B) and (D).** 
**I.**
**A.**
**O n June 1, 2021, Tyzier White**  **was fatally shot as he stood outside of the**  **Neptune Lounge, a bar in Newark. Two**  **men, known**  **by their nicknames as** ----**4**

**“Zay” and “DJ Neptune**  **,” witnesse**  **d the shooting**

**.** 1F **2 Both**  **men provided sworn**  **statements in which they identified**  **the shooter a**  **s a man known to them by the**  **nickname “B.A.” Zay added that he knew B.A.’s real name was Isaiah Knight**  **because Zay and defendant**  **have the**  **same name. Both Zay and DJ Nep**  **tune later**  **selected defendant ’**  **s photograph from a photo array**

**. According to Za**  **y, after the shooting**  **, defendant**  **threatened him and**  **another man, D avid Chappel**  **, at gunpoint**  **and forced them to**  **drive defendant to his**  **car, a BMW**  **, in**  **Chappel ’s**  **Chevrolet Malibu**

**. Zay explained th**  **at u pon**  **reaching the BMW, defendant directed Zay to drive**  **defendant’s BMW while Chappel**  **and defendant followed in the Malibu. Video footage shows defendant entering Chappel’s Malibu, Zay entering the BMW, and the cars**  **d riving off in tandem.**  **When defendant subsequently exited**  **the Malibu to**  **retrieve his BMW ,**  **he allegedly told Zay, “Yo, tell your man I got his license plate, you don’t play with me.”**  **In the days following the murder, defendant allegedly called**  **other witnesses present at the Neptune Lounge**  **at the time of the murder**  **in an effort to intimidate them.**

**2 Zay’s l**  **egal name is Isaiah V. Knight**

**. Zay is not related to defendant.**  **We refer to**  **him by his nickname to avoid confusion**  **with defendant**

**. The record**  **does not reflect DJ Neptune’s legal name. We do not intend any disrespect by**  **referring to these individuals by the ir**  **nicknames**

**. 5** 

**On June 16, 2021, law enforcement arrested**  **defendant on murder**  **charges. He has been detained pending trial since September 2021.**  **On December 21, 2021, Zay claimed**  **that a woman he**  **knew as “Aminah”**  **from prior interactions**  **contacted him on Instagram wanting to meet** 
**up**
**. According to Zay, Aminah picked**  **him up and drove him to 145 Hobson** 
**Street in**  **Newark , where a**  **n unknown woman let them into the multi** 

**- family**  **residence**

**. Zay**  **stated that o**  **nce inside**  **a bedroom**  **on the second floor ,**  **he and Aminah**  **smok ed**  **marijuana . Zay**  **recalled that**  **at some**  **point Aminah grabbed her coat and a lighter and s**  **ai d she wanted to go outside to smoke a cigarette.**  **When she opened the door and left the room, however, the unknown woman**  **who had let them in, along with two masked men armed with guns ,**  **entered the bedroom** 

**. Zay**  **re c**  **alled that the**  **men mentioned a “discovery packet.”**  **Then, Zay**  **claims t**  **he woman**  **handed him**  **a written**  **document and instructed him to copy it**  **by hand onto another sheet of paper. The document w**  **as a written** 

**“ affidavi**  **t, ”**  **the substance of which rec**  **a nt**  **ed Zay’s**  **prior sworn statement to**  **police identifying defendant as the shooter** 

**. A**  **ccording to Zay, the affidavit**  **stated that he**  **had lied in his previous sworn statement under duress from detectives and that no one should try to find him.**  **Zay stated**  **that as he began**  **to write the words**  **, “ I, Isaiah Knight,” the woman said, “No, not his name**  **.” 6** 

**According to Zay**  **, t**  **he men became enraged because they thought he**  **was trying**  **to be funny by signing defendant’s name as opposed to his own.**  **Zay alleged that the woman**  **then snatched his phone**  **, confir med**  **his name,**  **and delet ed**  **all Instagram messages between**  **him and Aminah. At one point, Zay said**  **he recognized one of the men**  **, and the man acknowledged Zay’s identification**  **by removing his mask.**  **Zay recalled that as he continued to copy the**  **text of th**  **e affidavit**  **, the**  **men told him that**  **they were going to kill him and leave him in the apartment as soon as he finished signing. But while looking through**  **Zay’s phone, the woman noticed**  **that Zay had texted a friend about being at 145 Hobson Street.**  **Given Zay’s text message to his friend about his whereabouts, Zay overheard**  **the woman and two men discuss whether the friend would link Zay’s death to**  **the address if they killed him. As**  **a result, the**  **perpetrators released**  **Zay**

**. The following day,**  **Zay went to**  **the Essex County**  **Prosecutor’s Office Homicide Task Force**  **and gave a second sworn statement**  **describing the prior**  **evening’s events. He also provided law enforcement with Instagram**  **pictures of Aminah**  **and the man**  **he recognized**

**. Law enforcement subseq**  **uently identified Aminah as Aminah Anderson, defendant’s sister, and the man as**  **Sylvester Richardson, defendant’s cousin. 7** 

**Zay gave a third statement to law enforcement in which he identified both Anderson and Richardson**  **as two of the assailants from the**  **December 21 ,**  **2021 incident**  **. He also revealed a text message**  **that he received dated March**  **21, 2022, threatening his parents by referencing his mother’s address and his father**  **’s place of employment**

**. In April 2022,**  **law enforcement arrested Anderson and Richardson on**  **witness tampering charges. In his statement to law enforcement, Richardson**  **admitted that he is defendant’s cousin and that Anderson is defendant’s sister.** 
**B. On September 10, 2021, an Essex County grand jury indicted**  **defendant for**  **the following offenses: first**

**- degree murder, second** 

**- degree**  **unlawful possession of a weapon, and second** 

**- degree possession of a weapon for an**  **unlawful purpose. On**  **March 16, 2022, an Essex County grand jury returned a**  **superseding indictment against defendant which**  **include d**  **the following additional**  **offenses: second**

**- degree conspiracy to commit witness tampering**  **and two counts of second**

**- degree kidnapping.**  **On April 4, 2022, t he State**  **filed a motion to compel discovery of the**  **document Zay was allegedly forced to write**  **, believing**  **that defendant’s alleged** 

**co -**  **conspirators turned**  **it over**  **to his counsel**

**. The State’s certification in**  **support of its motion to compel further**  **allege d**  **that DJ Neptune may have been 8** 

**forced to transcribe a similar recantation and that**  **defense counsel might**  **possess th at**  **document as well.**

2F **3**
**T he trial court held a hearing on the**  **State’s motion to compel**  **discovery**

**. In o**  **pposing the motion, defendant relied on State v. Williams, 80 N.J. 472 (**  **1979 ),**  **to argue that the State was not entitled to the affidavit**  **s under Rule** 
**3:13**

**- 3(b)**  **(2) because**  **he did not intend to use**  **the affidavit s**  **at trial. The State**  **argued that defense counsel had to turn over the affidavit**  **s because**  **they are evidence of a crime and not privileged**  **attorney work product.** 
**T he**  **trial court granted the State’s motion to compel discovery** 

**. The**  **court distinguished Williams, finding that the**  **item at issue in that case was work product formulated by defense counsel based on witness interviews.**  **Here, the court reasoned that the affidavit**  **s are “evidence of the crime of**  **witness tampering, and not anything formulated or written based on defense’s own investigation or work product.”** 
**T he Appellate Division granted defendant’s motion for leave to appeal**  **the trial court’s order. In an unpublished opinion, the Appellate Division affirmed the trial court’s order compelling disclosure of the affidavit**  **s**
**. The**  **court concluded that**  **Zay ’s**  **and DJ Neptune’s written statements, potentially**

**3 Defense counsel has neither confirmed nor denied**  **possessing either of**  **these documents**  **or their existence to his knowledge**

**. 9** 

**held by defense counsel ,**  **fall under the rubric of Rule**  **3:13**

**- 3(b)(2)(D)**  **because the State intends to call them both as witnesses at trial. The**  **court noted that**  **this case bore no resemblance**  **to Williams because**  **Williams involved a**  **defense attorney and his investigator interviewing the State’s witness. In this** 

**case ,**  **the Appellate Division explained**  **, “[n]o one suggests defense counsel . . .**  **had prior knowledge of, much less countenanced**  **or actively participated in, the alleged kidnapping incident.”**  **The court concluded**  **that the statements**  **were “the product of the alleged kidnapping and witness tampering activity undertaken by defendant’s relatives outside his presence,” as opposed to**  **attorney work product. The**  **Appellate Division further**  **rejected defendant’s arguments that**  **disclosure would violate his Sixth Amendment rights. Because the court found Williams**  **inapplicable , it also found the Sixth Amendment concerns noted by**  **this Court in Williams i**  **rrelevant**

**. The**  **Appellate Division observed that**  **a decision compelling disclosure in this case would not chill defense counsel**  **from conducting investigations given the way the statements in this case came**  **to be**

**. We**  **granted defendant’s motion for leave to appeal**

**. 253 N.J. 546**  **( 2023**  **)**

**. We**  **also granted motions by the Attorney General and the Association 10** 

**of Criminal Defense Lawyers of New Jersey (ACDL) to appear as amici curiae.** 
**II.**
**A. Defendant urges this Court to reaffirm**  **the longstanding rule that a**  **defendant must only disclose materials the defense intends to use or rely on at trial. Defendant**  **argues that**  **, even if he or his counsel possess the affidavit**  **s ,**  **the reciprocal discovery rule does not apply and**  **he should not be required to**  **turn them over**  **because he does not intend to use them at trial**

**. D**  **efendant claims**  **that compelled production violates his Sixth Amendment right to**  **effective assistance of counsel because**  **, if he gave**  **the affidavit to defense counsel**  **to seek legal advice,**  **the communication is privileged** 

**. Thus,**  **defendant contends , c**  **ompelled production produces a conflict**  **of interest between him and defense**  **counsel that would sever**  **the attorney**

**- client**  **relationship and u**  **ndermine his right to effective assistance of counsel.**  **Alternatively ,**  **defendant argues that the**  **State could have sought a search**  **warrant or subpoena duces tecum to acquire the alleged affidavit s**  **, as opposed to improperly using the discovery rules to do so** 

**. Defendant also claims that compelled production of the affidavit**  **s would**  **violate his Fifth Amendment right against self**

**- incrimination. Defendant** **11**

**asserts that because the discovery order is purportedly**  **directed at him, the act of production would compel him to admit**  **to possessing incriminating**  **materials and thereby**  **violate his right against self**

**- incrimination.** 
**Th e**  **ACDL support s**  **defendant’s position that the Court should not**  **allow the State to infringe upon the attorney** 

**- client relationship and a defendant’s**  **Sixth Amendment rights as a matter of routine via the discovery rules. The**  **ACDL submits that**  **compelling disclosure will chill defense attorneys from conducting**  **thorough i nvestigations out of fear of generating inculpatory**  **evidence that must be disclosed**

**. Accordingly, the ACDL contends that this**  **chilling effect will interfere with**  **and hamper defense attorneys’ ability to render effective assistance.** 
**B. The State argues**  **that thi s Court should uphold**  **the trial court and Appellate Division’s decisions** 

**. According to the State,**  **Rule 3:13** 

**- 3(b)(2)’s**  **plain language requires producing**  **the affidavit in question because the State has clearly stated its intention to call Zay at trial.**  **Regarding defendant’s constitutional arguments, the State**  **contends that requiring defendant to**  **produce the affidavit s**  **does not violate his Fifth Amendment right against self** 

**** **incrimination because the affidavit s**  **do not contain statements that defendant made**  **and because**  **neither defendant no r**  **defense counsel prepared the**  ----**12**

**documents**

**. Alternatively, even if production is testimonial, the State contends**  **that the f**  **oregone conclusion exception applies to compel disclosure. The State**  **further argues**  **that c ompelling production does not**  **violate defendant’s Sixth Amendment right to effective assistance of counsel** 

**. The** 
**State asserts that**  **the attorney**

**- client privilege is not implicated because defense**  **counsel simply possesses the affidavits**  **after likely**  **having received the**  **document s**  **from a co**

**- defendant or a third party, as opposed to having prepared**  **the document s**  **in anticipation of trial. Given that defense counsel did not**  **prepare or assist in preparing the affidavit s**  **, the State**  **contends that**  **Williams is**  **inapplicable**

**. T**  **he Attorney General echoes the State’s arguments**  **regarding Rule 3:13** 

**- 3(b)’s plain language and the alleged violations of defendant’s**  **constitutional rights and**  **asks this Court to affirm the Appellate Division’s judgment. T**  **he Attorney General adds that requiring the State to obtain search warrants**  **in these scenarios would risk a much greater intrusion into materials shielded by**  **the attor ney**  **- client privilege and confidentiality.** 
**III.**
**A. Our scope of review in this matter is limited.**  **State v. Brown , 236 N.J.**  **497, 521 (2019). “[A]ppellate courts ‘generally defer to a trial court’s** **13**

**disposition of discovery matters unless the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law.’”**  **Ibid. (quoting**  **Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011)).**  **Under the abuse of discretion standard, we “generously sustain [the**  **trial court’s] decision, provided it is supported by credible evidence in the record.”**  **Id. at 522**  **(alteration in original) (quoting Est** 

**. of Hanges v. Metro** 

**. Prop. & Cas** 

**. Ins. Co., 202 N.J. 369, 384 (2010))** 

**. This Court**  **“need not defer, however, to a discovery order that is well ‘wide of the mark,’ or ‘based on a mistaken understanding of the applicable**  **law.’” State v. Hernandez, 225 N.J. 451, 461 (2016) (**  **first quoting**  **State in Int.**  **of A.B** 

**. , 219 N.J. 542, 554 (2014)**  **; and**  **then quoting Pomerantz**  **, 207 N.J. at 371)**  **)**

**. We review**  **a court rule’s meaning or scope de novo, affording**  **“ no**  **deference to the interpretative statements of the trial court and Appellate**  **Division, unless they are persuasive in their reasoning.” Ibid.**
**B. As noted, defendant asserts that the affidavits are not subject to**  **disclosure under our discovery rules and that, even if they were, the Fifth and Sixth Amendments would prevent their disclosure.**  **Rule 3:13** 

**- 3 outlines the**  **pretrial discovery process and procedure in criminal matters** 

**. State v. Scoles, 214 N.J. 236, 252 (2013). The**  **Rule codifies 14** 

**New Jersey ’s**  **open -**  **file approach to pretrial discovery in criminal matters**  **post**

  ** indictment**

**. State v. Ramirez**  **, 252 N.J. 277, 295 (2022). The purpose behind th**  **e open -**  **file approach**  **is “[t]o advance the goal of providing fair and just criminal trials**  **” and “the quest for truth.”**  **Scoles , 21**  **4 N.J. at 252. Although**  **“ a defendant has a right to automatic and broad discovery of**  **the evidence the State has gathered in support of its charges ”**  **upon the issuance of an indictment, the**  **Rule also places**  **the onus on defense counsel to supply the prosecution with broad categories of items.**  **Id. at 25**  **2-5 3;**  **s ee also**  **Ramirez , 252 N.J. at 295** 

**- 96;**  **R. 3:13** 

**- 3(b)(2)** 

**. This is often**  **referred to as the “reciprocal discovery” rule**  **or process . See, e.g.**  **, State v. Tier, 228 N.J.**  **5 55,** 
**5 57**  **(2017) ;**  **Williams , 80 N.J.**  **at 478** 

**. The thrust behind the**  **“reciprocal discovery**  **” rule**  **is “that the State is entitled to know in advance what evidence a defendant intends to use at trial so that it may have a fair opportunity to** 
**in vestigate the veracity of such proof.”**  **Williams ,**  **80 N.J. at**  **478**

**. With regard to the defendant’s discovery ob**  **ligations, Rule 3:13**  **-3 provides,**  **as relevant here , that a defendant must provide the State with “all**  **relevant material, including, but not limited to,”**

**(B )**  **any relevant books, papers, documents or tangible objects, buildings or places or copies thereof, which are**  **within the possession, custody or control of defense counsel, including, but not limited to, writings,**  **drawings, graphs, charts, photographs, video and sound recordings**  **, images, electronically stored information, 15**  **and any other data or data compilations stored in any medium from which information can be obtained and**  **translated, if necessary, into reasonably usable form;**

**. . . (D)**  **written statements, if any, including any memoranda reporting or summarizing the oral**  **statements, made by a**  **ny witnesses whom the State may call as a witness at trial** 

**. . . . [**  **R. 3:13** 

**- 3(b)(2)(**  **B), (D).] Significantly, the**  **Rule “does not require discovery of a party’s work product**  **consisting of internal reports, memoranda or documents made by**  **that party or the party’s attorney or agents, in connection with the investigation, prosecution** 

**or defense of the matter.”**  **R. 3:13** 

**- 3(d)**  **(emphas e**  **s added)**

**. Beyond the**  **Rule’s own**  **exception, constitutional guarantees may bar compelling disclosure of certain materials in certain situations.**  **The Fifth Amendment to the United States Constitution provides that**  **“[n]o person**

**. . . shall be compelled in any criminal case to be a witness**  **against himself.” Our State Constitution does not contain a parallel**  **provision to the Fifth Amendment right against self** 

**- incrimination, but the privilege is**  **firmly established in this s**  **tate’s common law and is**  **codified in statute and in the Rules of Evidence.**  **See N.J.S.A.**  **2A:84A**

**- 19**  **; N.J.R.E.**  **503**

**. Th**  **e right**  **against self**

**- incrimination**  **“ applies only when the accused**  **is compelled to 16** 

**make a t**  **estimonial c**  **ommunication that is incriminating.”**  **Fisher v. United**
**States , 425 U.S. 391, 408**  **(1976) (emphasis added)** 

**. Both the state and federal privilege**  **s against self** 

**- incrimination are**  **personal to the defendant and cannot be asserted by or on behalf of third parties.**  **See State v. Baum, 199 N.J. 407, 419 (2009);**  **Fis her**  **, 425 U.S. at**  **410.**
**Our C**  **ourt has recognized that “**  **a fundamental policy limiting the scope of the privilege**  **” is that**  **“ the Fifth Amendment privilege is a purely personal one**  **.”**
**Baum ,**  **199 N.J. at 417**  **(quoting Bellis v. United States, 417 U.S. 85, 90**  **(1974) ).**  **The Sixth Amendment to the United States Constitution and A**  **rticle I, Paragraph 10 of the New Jersey Constitution ensure the criminally accused the**  **right to effective assistance of counsel.**  **S ee**  **State v. Fritz, 105 N.J. 42, 58 (1987) (holding that, in keeping with the federal standard, “a criminal**  **defendant is entitled to the assistance of reasonably competent counsel ” u**  **nder Article I,**  **P aragraph 10 of the State Constitution). In representing a criminal**  **defendant, defense counsel has a “duty to make reasonable investigations .”**  **State v. Chew , 179 N.J. 186, 217**  **(2004) . “The right to a ‘thorough defense**  **investigation is also part of the right to counsel.’” State v. Martinez ,**  **461 N.J. Super. 249, 276** 

**- 77**  **(App. Div. 2019) (quoting**  **State v. Nunez, 436 N.J. Super. 70, 74** 

**- 75**  **(App. Div. 2014)). That includes providing the defendant with the** **17**

**“ necessary tools, such as investigative support and expert analysis**  **, that he**  **needs to carry on his defense .”**  **State v. Melvins, 155 N.J. Super. 316, 320 (App. Div. 1978)** 

**. C.**  **Defendant relies on two cases in which this Court found that a defendant’s constitutional protections limited discovery obligations** 

**. This Court has recognized that “[t]o safeguard the defense attorney**  **’ s**  **ability to provide the effective assistance guaranteed by these constitutional provisions, it is essential that he be permitted full investigative latitude in**  **developing a meritorious defense on his client ’**  **s behalf. ”**  **State v . Mingo, 77**  **N.J. 576, 582 (1978). Such latitude to conduct an investigation would be constrained if defense counsel “must risk a potentially crippling revelation to**  **the State of information discovered in the course of investigation which he chooses not to use at trial.**  **” Ibid.** 
**In Mingo**  **, this Court considered how the principles underlying the reciprocal discovery rule relate to the attorney work product privilege and the**  **right to effective assistance of counsel. 77 N.J. at**  **5 87.**  **In that case, defense** 

**co unsel sought to compel the State’s production of a note allegedly written by**  **the assailant. Id.**  **at 579. Defense counsel wanted to engage a handwriting expert to examine the note and compare the handwriting to defendant’s** **18**

**handwriting. I**  **bid. The trial court granted defense counsel’s request,**  **conditioned “on defense counsel’s agreeing to furnish the prosecutor with a copy of any” expert report generated, regardless of whether defendant planned**  **to use the report at trial. I**  **bid. After comparing defendant’s**  **handwriting exemplars to the note, the defense expert concluded that the same person had**  **written all the documents. Id.**  **at 580. As a result of the expert report’s inculpatory nature, defense counsel decided to forego using the expert’s report**  **at trial. Ibid.**  **The State, however, having received the report from defense counsel, subpoenaed the expert to testify on the State’s behalf, and the expert**  **did so. Ibid. In considering whether the trial court should have admitted the expert’s**  **testimony, this Court held that**  **defense counsel cannot be compelled**  **, via**  **discovery ,**  **to give the State inculpatory expert materials it generated in**  **preparation for trial unless the defense intends to introduce or use that expert**  **evidence at trial. Id.**  **at 582, 584**

**. We held**  **that such a rule furthers the Sixth Amendment right to effective assistance of counsel**  **because defense counsel**  **will not be deterred from “**  **seek[ing] out expert evidence ”**  **to aid its defense that**  **may turn out to be unfavorable**

**. Id.**  **at 582. This Court further explained that “[t]he protection from unwarranted disclosure we today mandate is an** **19**

**indispensable element of a criminal defendant ’**  **s constitutional right to the effective assistance of counsel.**  **” Id.**  **at 587. Although an attorney’s work product privilege is “closely analogous” to**  **the right of effective assistance of counsel, the Court rejected the argument that the expert report at issue was work product.**  **Id. at 585. The Court**  **reasoned that the expert’s report “constitute[d] a species of evidence admissible under some circumstances whereas true work product is inherently**  **inadmissible.” Ibid. One year after the Mingo**  **decision, the Court expanded its holding**  **to include**  **statements or summaries of statements made by a State witness to d**  **efense counsel when the defense does not intend to use the statements at trial**

**. Williams**  **, 80 N.J. at 480**  **-82. In**  **Williams , defense counsel and his investigator**  **interviewed the victim on two occasions. Id.**  **at 476. During the second interview, the victim selected defendant’s picture in identifying him as the**  **perpetrator. Ibid. That was the only time the victim identified the defendant**  **as the assailant, and identification was at issue in the State’s case. Id.**  **at 477,**
**479**

**- 80.**  **The State moved for reciprocal discovery of the photographs and**  **interview memoranda. Id.**  **at 476. Defendant objected because he**  **did not intend to introduce any of those materials at trial.**  **I bid.**  **The trial court granted 20** 

**the State’s motion and ordered def endant,**  **pursuant to Rule**  **3:13 -3’**  **s reciprocal discovery**  **provisions , to turn over the defense’s victim interview**  **memoranda as well as the**  **photographs shown to the victim during the interview** 

**. Ibid.**  **After reviewing the materials, the State served subpoenas on counsel and**  **his investigator to testify as the State’s witnesses during trial. Ibid. To avoid**  **testifying, defense counsel stipulated to his interview with the victim. Ibid. During summation, the prosecutor emphasized that the victim’s sole**  **identification occurred when defendant’s own attorney showed her a picture of the defendant.**  **Id. at 477.**  **The Court concluded that the trial court’s order compelling reciprocal discovery of inculpatory material in defense counsel’s file trespassed on the**  **defendan t’s right to effective assistance of counsel.**  **I bid.**  **The Court explained that Rule**  **3:13**

**- 3(b)(2)(D)** 

3F **4 applies to written statements or memoranda when**  **the defense intends to use such evidence at trial; however, when counsel decides not to use the evidence, Rule**  **3:13**

**- 3(d)’s work product protection**  **applies.**

4F **5 Id.**  **at 478**

**- 79. The Court noted that “[i]t is abhorrent to our concept**  **of criminal justice to compel a defendant, under the guise of reciprocal**

**4 When this Court decided Williams, the relevant rules were numbered as Rule**  **3:13**

**- 3(b)(1) to (4). That numbering coincides with what is now Rule**  **3:13**

**- 3(b)(2)(A) to (D).** 

**5 The work product rule was previously Rule**  **3:13(c); it is now Rule 3:13(d).** **21**

**discovery, to disclose to the State inculpatory evidence uncovered by defense counsel during his preparation for trial and then allow the State to use that**  **evidence as part of its case in chief.” Id.**  **at 479. Finding that the Sixth Amendment bars such methods, the Court reasoned**  **that its holding would**  **avoid a chilling effect and ensure that defense counsel could exercise discretion in preparing a proper defense for a client.**  **Id. at 478** 

**- 79.** 
**IV. Appl**  **ying those principles, we hold that the affidavits in this case are discoverable pursuant to our discovery rules and**  **that neither the Sixth nor**  **the Fifth Amendment shield their**  **production. Defendant relies on this Court’s prior caselaw regarding reciprocal**  **discovery to support his argument that the affidavits, if they**  **exist and are**  **in defense counsel’s possession, should not be turned over to the State.**  **The holdings in Mingo**  **and Williams , however, do not control**  **in this factually distinct and unique case.**  **In Mingo**  **, the State sought to obtain an inculpatory expert report**  **that defendant did not intend to use at trial. 77 N.J**

**. at 580. In**  **Williams ,**  **the State sought to compel production of memoranda of a victim interview the defense conducted**  **and pictures that were shown to the victim**

**. 80 N.J. at 477. In both cases, the State tried to access materials and** **22**

**information created by defense counsel or at defense counsel’s direction in preparation for trial.**  **That is simply not the case here.**
**In this m**  **atter, neither part**  **y disputes**  **that defense counsel played no role**  **whatsoever in the genesis**  **of Zay’s affidavit** 

**. The affidavit’s**  **creation wa s**  **allegedly the result of a kidnapping and witness intimidation plot for which**  **defendant and two other individuals have been criminally charged. The affidavit, therefore, is physical evidence of a crime. It is not**  **the product of the defense investigation**  **or attorney work product , and**  **it therefore does not fall**  **within the exception to the discovery obligations set forth in R**  **ule 3:13** 

**- 3(d)** 

**. Rather**  **, t he affidavit is a relevant writing**  **potentially in defense counsel’s**  **possession pursuant to Rule**  **3:13**

**- 3(b)(2)(B)**  **. There is no question that this type of**  **physical evidence falls squarely within defendant’s required reciprocal**  **discovery obligations under that Rule** 

**. The affidavit would also fall under Rule**  **3:13**

**- 3(b**  **)(2)( D)**  **as a written**
**statement by a witness that the State intends to call at trial. Zay, as a witness**  **to the murder and a victim of kidnapping and witness tampering, may**  **be called by the State to testify at defendant’s trial. As such, this written affidavit that**  **Zay was allegedly forced to transcribe, is a written statement “made by a witness**  **whom the State may call as a witness at trial.”**  **See R.**  **3:13**

**- 3(b)(2)(D)** 

**.**
-----**23**

**Compelling defense counsel to**  **turn over in discovery an item in his**  **possession that is physical evidence of a crime does not trigger the same Sixth**  **Amendment concerns found in**  **previous cases**

**. T**  **his Court’s utmost concern in**  **Williams and Mingo**  **was that requiring**  **the defense**  **to produce potentially inculpatory material uncovered during the defense investigation that the**  **defense did not**  **intend to use at trial would have a chilling effect on defense**  **counsel’s ability to conduct thorough and in**

**- depth**  **pretrial investigations for**  **fear that any such material would have to be turned over to the State**

**. No such**  **concern is present in this**  **case , however,**  **in which the item in question is physical evidence of a crime**  **and not the product of defense counsel’s investigation** 

**. The State’s certification in support of its motion to compel**  **discovery sufficiently presented facts regarding the alleged kidnapping**  **and creation of**  **Zay’s affidavi**  **t to establish**  **that this affidavit is physical evidence of a crime** 

**.** 5F **6 Defendant’s argument that compelling the discovery of this affidavit**  **violates his Fifth Amendment**  **right against self**

**- incrimination**  **is similarly unavailing** 

**. The State certified that it**  **believes the affidavit is in defense** 

**6 As**  **previously noted, the State also believes that DJ Neptune may have been forced to draft a similar recantation affidavit. At oral argument on the motion**  **to compel, the State represented on the record that it had not been able to reach**  **D J**  **N eptune,**  **“despite feverish and repeated attempts to do so.” 24** 

**counsel’s possession after having been turned over to counsel by defendant’s**  **alleged co**

**- conspirators** 

**. T**  **he discovery request , therefore,**  **is directed to counsel, not defendant, and it pertains to materials**  **allegedly provided by**  **others. Again, the Fifth Amendment right against self** 

**- incrimination**  **cannot be asserted by or on behalf of third parties**  **because th e**  **Fifth Amendment right is personal to defendant** 

**. See**  **Baum , 199**  **N.J. at 417** 

**. As**  **defendant is not being compelled to do anything,**  **the Fifth**  **Amendment is inapplicable here. The unique**  **facts of this case lead this Court to the conclusion that the affidavit**  **s , as physical evidence of**  **a crime, fall within our discovery rules,**  **either Rule 3:13** 

**- 3(b)(2)(B) or**  **Rule 3:13** 

**- 3(b)(2)(D)**  **, and that**  **no constitutional privilege stands in the way of their**  **production**

**. If counsel is in possession of the affidavit**  **s and turns them**  **over, the State**  **must take precautions**  **i n introducing the affidavit**  **s a t trial**  **to avoid**  **identifying defense counsel as the source of the document**  **s so as not to prejudice**  **defendant before the jury**

**. The State can appropriately lay a foundation for the**  **admission of the document s**  **at tr ial**  **by sanitizing the manner in which the State came into possession of the document**  **s without stating that the affidavit**  **s came**  **from defense counse l.** **25 V.**  **For the for e**  **going reasons, we affirm**  **the Appellate Division’s judgment and remand**  **this matter consistent with this opinion** 

**.**

**CHIEF JUSTICE RABNER and**  **JUSTICE S**  **PATTERSON, SOLOMON**  **, WAINER APTER**  **, FASCIALE**  **, and NORIEGA join in JU STICE PIERRE** 

**** **LOUIS ’s opinion.**