New Jersey Section 2C:28-5.5 – No interference with defense preparation

New Jersey’s Law Against Interfering with Criminal Defense Preparation

New Jersey has a specific law, Section 2C:28-5.5 of the New Jersey Code of Criminal Justice, that prohibits interference with a defendant’s preparation of their criminal defense. This law is an important protection of a defendant’s constitutional right to present a defense.

Overview of Section 2C:28-5.5

Section 2C:28-5.5 states simply: “No order shall be entered under this act which interferes with the preparation of the underlying criminal case by the defendant or by his attorney, if any.”^[1]

This law is part of New Jersey’s laws against witness tampering and retaliation. It was enacted in 1997 as part of the Witness Protection Act. ^[2]

The purpose of Section 2C:28-5.5 is to prevent courts from issuing orders that would interfere with a defendant’s ability to prepare their defense in a criminal case. This helps protect a defendant’s constitutional rights under the Fifth, Sixth, and Fourteenth Amendments.

Constitutional Right to Present a Defense

The U.S. Constitution guarantees criminal defendants certain rights related to presenting a defense. The Fifth Amendment protects against self-incrimination. The Sixth Amendment guarantees the rights to counsel, to compulsory process, and to confront witnesses. And the Fourteenth Amendment applies these protections to state prosecutions. ^[3]

Together, these provisions give defendants the right to build their own defense, investigate the charges against them, interview witnesses, gather evidence, and call witnesses to testify on their behalf. Section 2C:28-5.5 helps prevent interference with these efforts.

How Section 2C:28-5.5 Protects Defense Preparation

Section 2C:28-5.5 prohibits courts from issuing orders under New Jersey’s witness protection laws that would interfere with defense preparation.

For example, a court could not order a witness not to speak with defense counsel or investigators. That would clearly impede the defense’s investigation and witness interviews.

Likewise, a court could not order the prosecution to withhold certain evidence from the defense. That would interfere with the defendant’s right to gather evidence to present at trial.

Limits of Section 2C:28-5.5

Section 2C:28-5.5 does not give defendants unlimited license to prepare their defense however they wish. It only prevents interference with legitimate defense preparation activities.

Defendants do not have a right to intimidate or threaten witnesses, for example. And Section 2C:28-5.5 does not allow that.

Likewise, Section 2C:28-5.5 does not entitle defendants to confidential information or privileged records to which they are not legally entitled.

The law only prohibits interference with proper investigation, witness interviews, and evidence gathering. It does not authorize improper methods or access to protected information.

Comparison to Other States

Many other states also have laws prohibiting interference with criminal defense preparation. But statutes like Section 2C:28-5.5 are still relatively uncommon.

Some states, like California, prohibit witness intimidation or retaliation but do not have a specific statute on defense interference. ^[4]

A few states, like Washington, do have statutes expressly forbidding interference with defense preparation. ^[5] But most states do not.

So Section 2C:28-5.5 makes New Jersey’s witness protection laws somewhat unique in directly addressing defense interference.

Challenging Orders That Interfere with Defense Preparation

If a court does issue an order interfering with legitimate defense preparation, Section 2C:28-5.5 provides grounds to challenge it.

Defense attorneys can file motions asking the court to reconsider or vacate orders that impede their defense investigation or preparation. Section 2C:28-5.5 supports such motions.

For example, if a court ordered witnesses not to speak with defense counsel, the defense could cite Section 2C:28-5.5 in a motion to lift the gag order.

Likewise, if a court denied access to certain evidence, Section 2C:28-5.5 could support a motion to compel disclosure.

Seeking Dismissal for Interference with Defense

In egregious cases, defense counsel may even seek dismissal of charges if interference with defense preparation is extreme enough to prejudice the defense.

Violating Section 2C:28-5.5 could potentially provide grounds for such a motion to dismiss. But dismissal would likely require showing substantial impairment of defense rights.

Mere technical or limited interference may not support dismissal. But substantial and unjustified interference could warrant the drastic remedy of dismissing the charges.

Ethics Rules Against Interference with Defense Function

In addition to Section 2C:28-5.5, ethics rules for lawyers also prohibit interference with a criminal defendant’s right to prepare a defense.

The ABA Model Rules of Professional Conduct state that prosecutors cannot “obstruct another party’s access to evidence” or “conceal a document or other material having potential evidentiary value.”

Likewise, the Model Rules prohibit obstructing another party’s “access to relevant material.” This includes impairing “another party’s ability to present its case.”

So prosecutors have an ethical duty to avoid interfering with defense preparation, beyond just the statutory prohibition.

Importance of Ensuring Adequate Defense Preparation

Section 2C:28-5.5 serves the important purpose of helping ensure fair trials and just outcomes in criminal cases.

Without adequate opportunity to prepare, defendants may be wrongly convicted or receive excessive punishments. Section 2C:28-5.5 helps prevent that.

And by protecting defense rights, Section 2C:28-5.5 also helps produce more reliable and accurate verdicts.

So while technical and rarely invoked, Section 2C:28-5.5 plays a valuable role in protecting due process and achieving justice.

Conclusion

New Jersey’s Section 2C:28-5.5 specifically prohibits interference with criminal defense preparation. This protects a defendant’s constitutional rights to build a defense.

While not a common statute, Section 2C:28-5.5 provides an important safeguard of defense interests in New Jersey. It helps ensure fair trials and just verdicts by allowing defendants to adequately prepare without improper interference.