SENATE, No. 2144

STATE OF NEW JERSEY

221st LEGISLATURE

PRE-FILED FOR INTRODUCTION IN THE 2024 SESSION

Sponsored by:

Senator  JOSEPH P. CRYAN

District 20 (Union)

Co-Sponsored by:

Senator Singer

SYNOPSIS

     Eliminates immunity for State, county, and municipal prosecutors who fail to disclose exculpatory evidence in criminal cases.

CURRENT VERSION OF TEXT

     Introduced Pending Technical Review by Legislative Counsel.

An Act concerning qualified and absolute immunity and amending and supplementing various parts of the statutory law.

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

     1.    (New section) a.  As used in this section, "Brady-Giglio guidelines" means any guidelines, directives, policies, or procedures, and any successor guidelines, directives, policies, or procedures, promulgated by the Attorney General related to the disclosure of exculpatory and impeachment evidence in criminal cases in accordance with the United States Supreme Court decisions in Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). 

     b.    A court in this State shall notify the Office of Attorney Ethics of the New Jersey Supreme Court upon a finding, by a preponderance of the evidence, that a State, county, or municipal prosecutor has failed to provide exculpatory or impeachment evidence to a defendant or defendant's counsel in violation of Brady-Giglio guidelines promulgated by the Attorney General.  The court shall provide notice to the Office of Attorney Ethics, as well as the defendant or defendant's counsel, within 24 hours of the court's finding that a violation has occurred. 

     2.    (New section) a.  As used in this section, "Brady-Giglio guidelines" means any guidelines, directives, policies, or procedures, and any successor guidelines, directives, policies, or procedures, promulgated by the Attorney General related to the disclosure of exculpatory and impeachment evidence in criminal cases in accordance with the United States Supreme Court decisions in Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). 

     b.    Notwithstanding the provisions of any other law, a State, county, or municipal prosecutor shall be liable if the prosecutor subjects or causes to be subjected any person to the deprivation of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any  substantive rights, privileges or immunities secured by the Constitution or laws of this State by failing to disclose exculpatory or impeachment evidence to a defendant or defendant's counsel in violation of Brady-Giglio guidelines promulgated by the Attorney General.  The prosecutor shall not be immune from liability for a violation of this subsection.

     c.     Notwithstanding the provisions of any other law, the State, a county, or a municipality shall be liable if a State, county, or municipal prosecutor, as appropriate, acting in the prosecutor's official capacity subjects or causes to be subjected any other person to the deprivation of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State by failing to disclose exculpatory or impeachment evidence to a defendant or defendant's counsel in violation of Brady-Giglio guidelines promulgated by the Attorney General. The State, county, or municipality shall not be immune from liability for a violation of this subsection. 

     d.    An action brought pursuant to this section may be filed in Superior Court.  Upon application of any party, a jury trial shall be directed.

     e.     In addition to any damages, civil penalty, injunction, or other appropriate relief awarded in an action brought pursuant to this section, the court shall award the prevailing party reasonable attorney's fees and costs.

     3.    R.S.59:2-10 is amended to read as follows:     

     59:2-10.  a.  As used in this section, "Brady-Giglio guidelines" means any guidelines, directives, policies, or procedures, and any successor guidelines, directives, policies, or procedures, promulgated by the Attorney General related to the disclosure of exculpatory and impeachment evidence in criminal cases in accordance with the United States Supreme Court decisions in Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). 

     b.    A public entity is not liable for the acts or omissions of a public employee constituting a crime, actual fraud, actual malice, or willful misconduct.

     c.     Nothing in this section shall exonerate a State, county, or municipality for liability for damages resulting from a State, county, or municipal prosecutor's failure to disclose exculpatory or impeachment evidence to a defendant or defendant's counsel in violation of Brady-Giglio guidelines promulgated by the Attorney General.

(cf: P.L.1972, c.45, s.10)

     4.    R.S.59:3-2 is amended to read as follows:

     59:3-2.  a.  A public employee is not liable for an injury resulting from the exercise of judgment or discretion vested in [him] the employee;

     b.  [A] Except as otherwise provided in subsection e. of this section, a public employee is not liable for legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature;

     c.  A public employee is not liable for the exercise of discretion in determining whether to seek or whether to provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;

     d.  A public employee is not liable for the exercise of discretion when, in  the face of competing demands, [he] the employee determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public employee was palpably unreasonable.

     e.     Nothing in this section shall exonerate:

     (1) a public employee for negligence arising out of [his] the employee's acts or omissions in carrying out [his] ministerial functions; or

     (2) a State, county, or municipal prosecutor for liability for damages resulting from or caused directly or indirectly by the prosecutor's failure to disclose exculpatory or impeachment evidence to a defendant or defendant's counsel in violation of Brady-Giglio guidelines promulgated by the Attorney General.  Upon a finding, by a preponderance of the evidence, that a prosecutor committed a violation, the court shall award reasonable counsel fees and costs to the defendant.

     As used in this section, "Brady-Giglio guidelines" means any guidelines, directives, policies, or procedures, and any successor guidelines, directives, policies, or procedures, promulgated by the Attorney General related to the disclosure of exculpatory and impeachment evidence in criminal cases in accordance with the United States Supreme Court decisions in Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). 

(cf: P.L.1972, c.45, s.2)

     5.    R.S.59:3-3 is amended to read as follows:

     59:3-3.  a.  As used in this section, "Brady-Giglio guidelines" means any guidelines, directives, policies, or procedures, and any successor guidelines, directives, policies, or procedures, promulgated by the Attorney General related to the disclosure of exculpatory and impeachment evidence in criminal cases in accordance with the United States Supreme Court decisions in Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). 

     b.    A public employee is not liable if [he] the employee acts in good faith in the execution or enforcement of any law. 

     c.     Nothing in this section [exonerates] shall exonerate:

     (1) a public employee  from liability for false arrest or false imprisonment; or

     (2) a State, county, or municipal prosecutor who fails to disclose exculpatory or impeachment evidence to a defendant or defendant's counsel in violation of Brady-Giglio guidelines promulgated by the Attorney General.

(cf: P.L.1972, c.45, s.3)

     6.    R.S.59:3-8 is amended to read as follows:

     59:3-8.  a.  As used in this section, "Brady-Giglio guidelines" means any guidelines, directives, policies, or procedures, and any successor guidelines, directives, policies, or procedures, promulgated by the Attorney General related to the disclosure of exculpatory and impeachment evidence in criminal cases in accordance with the United States Supreme Court decisions in Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). 

     b.    A public employee is not liable for injury caused by [his] the employee instituting or prosecuting any judicial or administrative proceeding within the scope of his employment.

     c.     Nothing in this section shall exonerate a State, county, or municipal prosecutor who fails to disclose exculpatory or impeachment evidence to a defendant or defendant's counsel in violation of Brady-Giglio guidelines promulgated by the Attorney General.

(cf: P.L.1972, c.45, s.8)

     7.    This act shall take effect on the first day of the second month next following the date of enactment.

STATEMENT

     This bill eliminates qualified immunity for State, county, and municipal prosecutors who fail to disclose exculpatory evidence in criminal cases.

     Under current law, as articulated in the United States Supreme Court's holdings in Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972), prosecutors are required to disclose exculpatory and impeachment evidence to defense counsel in criminal matters.  In order to ensure uniformity in compliance with these requirements, the Attorney General has issued guidelines and directives outlining the responsibilities of prosecutors in this State to disclose exculpatory and impeachment evidence.  The bill defines these guidelines and directives, and any successor guidelines and directives promulgated by the Attorney General related to the disclosure of exculpatory and impeachment evidence in criminal cases, as "Brady-Giglio guidelines."

     Prosecutors are granted qualified immunity under the State's Tort Claims Act (TCA) and absolute immunity under the State's Civil Rights Act (CRA).  Under the TCA, public employees, including prosecutors, are granted immunity unless the employee's conduct is outside the scope of employment or constituted a crime, actual fraud or malice, or willful misconduct.  Under the CRA, prosecutors are entitled to absolute immunity if the prosecutor failed to disclose this evidence while functioning in the prosecutor's official capacity. 

     This bill amends current law to eliminate prosecutorial immunity under both the CRA and TCA if the prosecutor fails to disclose exculpatory or impeachment evidence to a defendant or defendant's counsel in violation of Brady-Giglio guidelines promulgated by the Attorney General. 

     The Office of Attorney Ethics (OAE) acts as the investigative and prosecutorial arm of the New Jersey Supreme Court in discharging the court's constitutional responsibility to supervise and discipline attorneys in this State. The provisions of the bill require a court to notify the OAE upon a finding, by a preponderance of the evidence, that a State, county, or municipal prosecutor has failed to provide exculpatory or impeachment evidence to a defendant or defendant's counsel in violation of Brady-Giglio guidelines.  The court is required to provide this notice to the OAE and to defendant or defendant's counsel within 24 hours of its finding that a violation has occurred.