New Jersey Lawyers voted Best in South Jersey, John F. Renner

NEW JERSEY LAWYERS PRACTICING WORK INJURY LAW APPLY THE DEFINITION OF PERMANENT PARTIAL DISABILITY IN THE DETERMINATION OF WORK ACCIDENT BENEFITS TO EMPLOYEES INJURED IN THE COURSE OF EMPLOYMENT.

An award of permanency by a Judge of Compensation in New Jersey is one of the possible statutory benefits available to a worker in New Jersey who has suffered a work injury. The definition of permanent partial disability became law in NJ as a result of enactments of the state legislature in 1980 and then subsequently interpreted by the Supreme Court of New Jersey. According to our Court, the goals of the enactments that year provided for increasing awards for serious work accidents and to reduce awards for minor injuries. In applying the concept, the Court has held that demonstrable medical evidence of a disability that restricts the function of his or her body or items members or organs is essential. If the evidence is shown by the injured worker, there must also be a lessening to a material degree his or her working ability or that the disability is significant and not simply the result of a minor injury. If there has not been a measurable impairment of the ability to work , it is acceptable to consider disability in a broader sense of carrying on the ordinary pursuits of life.

Change just for the sake of change is not necessarily good. But, change to adapt to the situation is survival.

“Adapt- or Lose!”- Ohio State Bar Association Report, vol. XI, no. 21 (May 22, 1967)

NEW JERSEY LAWYERS CONSIDER RECENT NJ SUPREME COURT OPINION DECLARING RIGHTS OF INTERNET SUBSCRIBERS IN NEW JERSEY TO PRIVACY IN INFORMATION PROVIDED TO INTERNET SERVICE PROVIDERS.

New Jersey lawyers interested in the area of internet privacy and criminal defense have a new case to consider from the NJ Supreme Court holding a constitutionally protected right to privacy in internet subscriber information. In an interpretation of the New Jersey State Constitution, the Court declared that law enforcement must act reasonably within constitutionally prescribed limits in obtaining information of this nature- that is, the information must be obtained in a reasonable manner such as via the issuance of a grand jury subpoena to the internet subscriber to the produce the requested records. As the court notes, the target of the grand jury inquiry need not be notified of the subpoena.

In the case before the Court, New Jersey law enforcement issued an improper municipal court subpoena to the service provider in order to obtain the information related to a suspect in an ongoing investigation. The Court noted that this procedure for obtaining the information is invalid under the NJ Constitution and as such violated privacy rights. Accordingly, the evidence obtained in this fashion is suppressed but the information is still available through a properly issued subpoena that meets the constitutional standards and may result in a new indictment being brought against the suspect.

NEW JERSEY WORK INJURY LAWYERS CONSIDER RECENT COURT OF APPEALS DECISION FURTHER DEFINING THE “COMING AND GOING” RULE IN QUALIFICATION FOR NJ WORKERS COMPENSATION BENEFITS.

In a recent case decided by the Superior Court of New Jersey, Appellate Division, an injured employee of the NJ Turnpike Authority asserted a claim for statutory benefits under the NJ Workers Compensation Act for an injury the worker sustained in a car accident with another employee while traveling on an access road maintained by the employer. The Judge of Compensation hearing the testimony at the administrative law level found that the injured employee drove to the employer’s premises to retrieve a pay check at the time of the accident. As such, the employee was not within the scope of employment required by NJ Workers Compensation law in order to qualify for benefits. Course of employment refers to the time, place and circumstances of the accident in relation to the employment.

The Court further found that in the course of employment can be met if the injured employee even if not engaged in work duties if the accident occurred on the employer’s premises. The key issues for that determination involve the place of the accident and the control of the employer over the property on which the accident occurred. In the case before the Court, the injured employee was found by the Judge of Compensation to have left the employer’s portion of the complex at the time of the accident and choose an access road that was one of several means of ingress and egress to the employer’s premises.

The only government that I recognize …. is that power that establishes justice in the land, never that which establishes injustice.

NEW JERSEY WORK INJURY LAW PROVIDES COMPENSATION TO JOB ACCIDENT VICTIMS WITHOUT CONSIDERATION OF FAULT AND IS GENERALLY THE ONLY REMEDY AVAILABLE AGAINST THE EMPLOYER.

Workers compensation law in New Jersey represents a compromise between the employer and the employee wherein both parties give up certain advantages in order to gain others which are deemed by the State of New Jersey as being more important both the employer and the employee and to society as a whole. For example, the injured worker has lost the right to sue under most circumstances for injuries sustained in the workplace in the civil courts of NJ seeking damages for negligence. That remedy for the work accident employee may have resulted in a higher award, if successful, but resulted in other workers not able to prove their case and receiving no award whatsoever.

Work accident benefits in New Jersey for the non-fatal work injury include statutory provisions for the payment of medical treatment, temporary wage disability benefits while the work accident employee is unable to work and has not reached maximum medical improvement and an award for permanent disability if there are objective residual consequences to the job accident after the employee has reached maximum medical improvement.

God forbid, my lords, that there should be a power in this country of measuring the civil rights of the subject by his moral character, or by any other rule but the fixed laws of the land! …. Unlimited power is apt to corrupt the minds of those who possess it; and this I know, my lords, that where the law ends, tyranny begins.

William Pitt, “The English Constitution” speech delivered in the House of lords in reply to Lord Mansfield in the Case of Wilks, January 9, 1770

NEW JERSEY LAWYERS REVIEW RECENT APPELLATE DIVISION CASE HOLDING THAT AN ANONYMOUS TIP, WITHOUT MORE, IS NOT SUFFICIENT EVIDENCE TO SUPPORT A REASONABLE SUSPICION JUSTIFYING A PROTECTIVE PAT-DOWN OR SEARCH OF A MOTOR VEHICLE.

The Superior Court of New Jersey, Appellate Division, recently reviewed the requirements of the Fourth Amendment prohibition on unreasonable searches and seizures within the context of an anonymous tip made to police. The issue for the Court involved the constitutionality of using an anonymous tip, without more, as the basis for reasonable suspicion to support a stop and frisk of a motorist and the subsequent search of a motor vehicle. The facts of the case before the Court did not support the constitutionality of either search.

The Court held that an anonymous tip, standing alone and without further corroboration from the facts and circumstances faced by the police at the time of the stop, is not sufficient to support a reasonable suspicion under the Fourth Amendment. New Jersey lawyers practicing criminal defense in the state and federal courts are aware of the United States Constitution protection for the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” with a similar provision in the New Jersey Constitution. There is a well-recognized exception for the police to perform a protective stop but the State of New Jersey must show the police had an objective, articulable and reasonable basis to the believe the subject of the stop was armed and dangerous. While an anonymous tip can justify the detention of the vehicle and the occupants for questioning, the tip alone without corroboration is not sufficient for a stop and frisk of the motorist and search of the vehicle.

The love of justice is simply, in the majority of men, the fear of suffering injustice.

NEW JERSEY WORK INJURY LAWYERS CONSIDER RECENT COURT OF APPEALS DECISION REFUSING TO EXPAND THE APPLICATION OF THE “COMING AND GOING” RULE FOR WORKERS COMPENSATION BENEFITS ELIGIBILITY IN NEW JERSEY.

The NJ Workers Compensation Act provides a general rule that accidents occurring to employees while the employee is traveling to and from work are not within the course of employment unless “the employee is engaged in the direct performance of duties assigned or directed by the employer.” This rule, known as the coming and going rule, is subject to some important decisions over the years by the Courts of New Jersey. Work accident lawyers in New Jersey often have to use a totality of the circumstances approach to determine the applicability of the coming and going rule.

One exception to the general rule, known as the travel time exception, provides for benefits to injured employees who are provided compensation by the employer for their travel time to and from distant work sites in spite of the fact that they may not be in the direct performance of work duties. If the employee is paid an identifiable amount for time spent in a going and coming trip, then the employee is covered for benefits under the statute as being within the course of employment.

In the recent case before the Court, however, the employee in question was considered under the exception for coverage under workers compensation due to the coming and going rule. The employee was reimbursed for gas consumption, wear and tear on his vehicle and tolls. The employee was not, however, paid for his travel time.

The picture cannot be painted if the significant and the insignificant are given equal prominence. One must know how to select.

Benjamin N. Cardozo, 1870-1938, “Law and Literature” Selected Writings of Benjamin Nathan Cardozo, edited by Margaret E. Hall, 1947.

NEW JERSEY LAWYERS PRACTICING CRIMINAL DEFENSE CONSIDER RECENT NJ SUPREME COURT OPINION DEFINING ADMISSION CRITERIA FOR THE PRE-TRIAL INTERVENTION PROGRAM, A DIVERSIONARY PROGRAM COMMONLIY KNOWN AS PTI.

Many first time, non-violent defendants charged in the State of New Jersey apply for admission into the PTI program in New Jersey as an alternative to having a formal prosecution of the matter before a judge or jury. Rehabilitation and supervision are provided to the accused and, if the program is successfully completed, the charges are dismissed. New Jersey criminal defense lawyers often looked to the guidelines for PTI admission to determine the likelihood a particular defendant can gain admission into the program. There is a presumption against admission for defendants charged with violent crimes, drug dealing and other serious charges.

In a recent case before the New Jersey Supreme Court, a PTI applicant was barred from the program on an interpretation of an admission guideline. The Supreme Court reversed by holding that a defendant who is responsible for commission of the same minor crime on more than one occasion is not barred from PTI on the basis that the defendant is “part of a continuing criminal enterprise.” Without a presumption against admission, the defendant’s application can be considered again including “other factors bearing on the defendant’s potential for rehabilitation will still require analysis and a denial may be based on legitimate negatives in the applicant’s past including by way of example, but not limitation, prior record and lack of remorse.”

Judge a man not by the words of his mother, but from the comments of his neighbors.

NEW JERSEY LAWYERS REFLECT UPON RECENT UNITED STATES SUPREME COURT OPINION ALLOWING ALL STATES IN THE UNION TO PROVIDE RETROACTIVE APPLICATION OF PREVIOUS 2004 DECISION OF COURT IN CRAWFORD V. WASHINGTON.

In 2004, New Jersey lawyers practicing federal or state criminal defense considered the holding of the United States Supreme Court in Crawford v. Washington. In Crawford, the Court held that testimonial hearsay admitted against an accused in a criminal trial violates the Sixth Amendment right of confrontation under the United States Constitution. The hearsay may be otherwise admissible under state law rules of evidence regarding hearsay but the Constitution, as the supreme law of the land, makes the evidence inadmissible.

In a case of interest to NJ criminal defense lawyers, the U.S. Supreme Court recently held that any State in the Union can provide that Crawford has retroactive application to cases decided before 2004. In the case before the Court, a defendant was convicted in Minnesota of assault in 1996 after evidence introduced to the jury included a videotape interview of the complaining witness. The Minnesota Supreme Court declined to grant relief to the defendant based upon Crawford mainly because the Minnesota Supreme Court believed it lacked authority to grant an extension of the constitutional rule of law announced by the U.S. Supreme Court.

The Courts of the State of New Jersey have yet to express an opinion regarding the retroactive application of the Crawford opinion to cases heard in the state courts prior to 2004.

The first step in the direction of a world rule of law is the recognition that peace no longer is an unobtainable ideal but a necessary condition of continued human existence.

NEW JERSEY LAWYERS CONSIDER RECENT NJ SUPREME COURT DECISION TO EXPAND PERMISSIBLE LAW ENFORCEMENT INVESTIGATIVE ACTIONS REGARDING PASSENGERS DURING MOTOR VEHICLE STOPS IN THE STATE OF NEW JERSEY

New Jersey lawyers practicing in the field of federal criminal defense or state criminal defense should be aware of a recent United States Supreme Court decision declaring that the Fourth Amendment to the United States Constitution definition of “seizure” includes both the driver of a motor vehicle and any passengers within the vehicle when law enforcement undertakes a stop of the motor vehicle.

The New Jersey Supreme Court recently expanded law enforcement investigation authority over passengers of a motor vehicle during a stop. Such passengers do not any expectation of privacy in information on the database known as the Federal Bureau of Investigation NCIC database. As such, in New Jersey, the Supreme Court of the state held that when law enforcement performs and NCIC search for a passenger during a motor vehicle stop, that search does not constitute a “search” within the Fourth Amendment to the United States Constitution or the New Jersey Constitution.

In compliance with the United States Supreme Court decision, the New Jersey court held that the passenger has been “seized” for purposes of the Fourth Amendment. As such, law enforcement has to act reasonably under the circumstances such as conducting the investigation without undue delay. The NJ Court noted, however, that police conduct will be evaluated within the context of unfolding events that present in each unique traffic stop.

I give up. Now I realize fully what Mark Twain meant when he said, “The more you explain it, the more I don’t understand it.”

Justice Robert H. Jackson, Securities Commission v. Chenery Corporation. 332 U.S. 194, 214 (1947)

NEW JERSEY WORK INJURY LAWYERS CONSIDER RECENT CASE REGARDING INTERACTION BETWEEN WORKERS COMPENSATION BENEFITS IN NEW JERSEY AND AN EMPLOYER WHO FILES FOR BANKRUPTCY PROTECTION.

The Petitioner, an employee of a self-insured company for workers compensation purposes, was injured in the course of her employment and filed a Claim Petition with the New Jersey Division of Labor. She later amended her petition to join the Second Injury Fund. A Judge of Compensation in NJ eventually awarded her 65% permanent partial disability against the employer including the cost of future prescription payments. The employer filed for Chapter 11 Bankruptcy protection and listed as unsecured creditors workers compensation claimants who under the bankruptcy plan would not receive any distributions.

The case was later placed on the docket to be handled by the New Jersey Self-Insurers Guaranty Association and the injured employee moved to compel payment. The New Jersey Supreme Court held that a worker injured before the employer’s insolvency is not required to file a proof of claim in the bankruptcy proceeding to qualify for compensation benefits. In using traditional means of statutory construction, the Supreme Court noted that there are two classes of claimants: those injured before and those injured after the employer’s insolvency and that the proof of claim requirement only applies to the later class.

The people become more subservient to justice…when they see the author of a law obeying it himself.

Claudian (Claudius Claudianus), Panegyricus de Quarto Consulatu, Honorii Augusti, 398

NEW JERSEY LAWYERS PRACTICING CRIMINAL DEFENSE IN THE TRIAL COURTS OF NEW JERSEY HAVE NEW CASE REGARDING EXPUNGEMENT OF CONVICTIONS AND THE IMPACT OF CIVIL LITIGATION ON THE ABILITY OF A COURT TO GRANT A REQUEST FOR EXPUNGEMENT.

In a recent case from the Superior Court of NJ, Appellate Division, a petitioner before a trial court in New Jersey on an expungement application shall not be denied relief because of the mere filing of a tort claim notice. The notice by itself is not equal to the civil litigation pending that will bar an expungement.

In this particular case, the petitioner sought to have an arrest record expunged after having a disorderly persons offense dismissed in one of the Municipal Courts of New Jersey. Following the dismissal of the case, the petitioner filed a Torts Claim Notice against the state police putting the State of NJ on notice of a pending civil action against the State regarding the circumstances of the arrest and charge. After the expungement, the Petitioner did in fact file suit against the State of New Jersey.

In Somerset County, the venue of the expungement application, the County Prosecutor made a motion to vacate or take back the granting of the expungement on the basis of the filing of the tort claims notice. The Appellate Division held that the filing of a Tort Claim Notice is not civil litigation as defined in the expungement statute.

Felix Frankfurter, Pearce v. Commissioner of Internal Revenue, 314 U.S. 593 (1942).

SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION, UPHOLDS TRIAL JUDGE DECISION THAT STATE PRESENTED AMPLE EVIDENCE TO SUPPORT FINDING OF GUILT THAT PASSENGER IN AUTOMOBILE ACTUALLY OR CONSTRUCTIVELY POSSESSEDA CONTROLLED DANGEROUS SUBSTANCE.

New Jersey lawyers practicing in the area of criminal defense are sometimes faced with an accused being charged with possession of an illegal narcotic while riding as a passenger in a vehicle owned and driven by another person. NJ lawyers now have a case which further defines the evidence which can be sufficient to find that an accused is in fact guilty of possession of the narcotics found in that car. While prior cases can help provide guidance, each case is decided on the unique facts and circumstances of that matter.

In the case before the Appellate Division, two officers stopped a vehicle for erratic driving. After detecting the smell of marijuana and other factors, the officer requested the driver to exit the vehicle and then observed a large plastic bag containing what appeared to be illegal narcotics in the middle of the driver’s seat. Later lab tests confirmed the substance was in fact an illegal narcotic. The Court of Appeals remarked that possession cannot be based on mere presence at the place where the illegal drug is found. There must be other circumstances which can be inferred to create a logical conclusion of possession. In this case, the Court of Appeals found that the odor of the drug along with testimony that it is common for drug dealers to work in teams and the permissible inference that that the driver and passenger were trying to hide the drugs as they continued to drive for several blocks after the police activated their overhead lights signaling the vehicle to stop.

..in my first years upon the bench…I sought for certainty. I was oppressed and disheartened when I found that the quest for it was futile. I was trying to reach land, the solid land of fixed and settled rules, the paradise of a justice that would declare itself by tokens plainer and more commanding than its pale and glimmering reflections in my own vacillating mind and conscience.

NEW JERSEY LAWYERS PRACTICING CRIMINAL DEFENSE IN THE STATE COURTS OF NJ REVIEW NEW INTERROGATION PROCEDURES MANDATED BY THE SUPREME COURT OF NEW JERSEY REGARDING A TECHNIQUE COMMONLY REFERRED TO BY LAW ENFORCEMENT AS “QUESTION FIRST- WARN LATER.”

The two-step interrogation process known the New Jersey lawyers and commonly known in the law enforcement community as “Question First- Warn Later” came under close scrutiny by the highest court in New Jersey. Although the Court did not declare the interrogation process unconstitutional, it did provide trial court judges and lawyers in New Jersey with a set of guidelines to consider in determining whether to admit a confession from an accused obtained by using the interrogation process. Finding federal law on the topic unclear, the NJ Supreme Court decided the case.

“Question First- Warn Later” refers to a technique used by New Jersey detectives in questioning a suspect in custody without the required warnings given to the suspect about the right to remain silent, etc.- commonly referred to as Miranda warnings. Only after the suspect provides incriminating statements do the detectives then provide Miranda warnings and take additional statements which the State typically seeks to admit into evidence against the accused.

In addition to providing detailed guidelines to trial court judges, the Supreme Court instructions including particular importance on whether the statements given without the required warnings including information given to the suspect that the “unwarned statements” cannot and will not be used against him. Law enforcement providing such information would establish powerful evidence that any subsequent waiver of rights was done within constitutional requirements.

NEW JERSEY LAWYERS WHO PRACTICE FEDERAL OR STATE CRIMINAL DEFENSE WORK CONSIDER RECENT COURT OF APPEALS CASE RULING POLYGRAPH RESULTS INADMISSIBLE EVEN WHEN THE DEFENDANT AGREES TO TAKE THE TEST AND HAVE THE RESULTS ADMITTED BEFORE THE JURY

The general rule in New Jersey is that polygraph test results are inadmissible to show the guilt or innocence of the defendant including whether the defendant requested to take the test or whether the prosecution offered it to the defendant. The defendant and the prosecution, however, can agree under some strict guidelines to have the examination results admitted before the finder of fact. The agreement between the parties must be clear, unequivocal and complete. The issue before the Superior Court of New Jersey, Appellate Division, in a recent case involved whether defendants who are not represented can agree to have the results of the examination admissible at trial. In an earlier case decided by the New Jersey Supreme Court, a defendant represented by counsel could agree to the admissibility of the results. In this case, the defendant was counseled only by a prosecutor at an early stage of the investigation regarding the use of the polygraph results. Based upon the defendant’s interaction with the prosecutor and law enforcement, a stipulation was signed waiving any right to challenge the qualifications of the polygraph administrator and introduce any contrary evidence in the form of another administrator or any other person who may contradict the examination results.

The Court of Appeals found that while the Sixth Amendment right to counsel may not apply at the investigation stage, a defendant’s broad waiver of rights in this case concerning trial strategy should be not be allowed as those decisions would ordinarily be made after consultation with a New Jersey lawyer represented the best interests of the defendant. The Court of Appeals predicted that while the New Jersey Supreme Court has yet to address polygraph examination agreements signed by a defendant without a New Jersey attorney, the Court would hold them inadmissible based upon other cases previously decided by the NJ Supreme Court.

Human beings have rights, because they are moral beings: the rights of all men grow out of their moral nature; and as all men have the same moral nature, they have essentially the same rights.

Angelina Grimke, American abolitionist, Letters to Catherine Beecher, ed. By Issac Knapp, 1836

NEW JERSEY LAWYERS PRACTICING FEDERAL CRIMINAL DEFENSE IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CONSIDER RECENT U.S. SUPREME COURT CASES DEALING WITH SENTENCING ISSUES ARISING FROM CRACK COCAINE

N.J. lawyers practicing federal criminal defense work know that there is a significant sentencing disparity for those defendants convicted in the United States District Court of crimes involving crack cocaine. Other forms of cocaine, such as the powder form of the illegal narcotic, which may be distributed by a defendant result in much shorter sentences. The disparity has existed for some time and has been the subject of an ongoing debate whether the treatment is fundamentally fair.

In one case decided by the United States Supreme Court, written by Justice Ginsberg, provides the authority of District Court Judges all over the country, to disagree with the sentencing disparity on the basis of policy considerations alone. The Court reiterated that the sentencing guidelines as a whole are advisory and not mandatory to determine the proper sentence of a particular defendant. The Court went on to note that the sentencing guidelines pertaining to crack deserve less deference than other guidelines because “those guidelines do not exemplify the Commission’s exercise of its characteristic institutional role.”

Overall, in New Jersey lawyers practicing criminal defense before the federal courts understand that the sentence to be rendered must be not greater than necessary to achieve justice under the circumstances. The U.S. Supreme Court appears to be requiring that the District Court Judges adhere to that notion even in light of sentencing guidelines that call for imposition of a dramatically higher sentence for crack cocaine.

GOVERNOR CORZINE SIGNED INTO LAW LEGISLATIVE BILL S-171 MAKING NEW JERSEY THE FIRST STATE IN 42 YEARS TO ABOLISH THE DEATH PENALTY AND REPLACE THE DEATH SENTENCE AND REPLACING IT WITH THE SENTENCE OF LIFE IN PRISON WITHOUT PAROLE IN RECOGNITION THAT THE SYSTEM DOES NOT WORK.

Many New Jersey lawyers who practice in the field of criminal defense work-either state criminal lawyers or federal criminal lawyers- support the abolition of the death penalty based upon recent convictions that have been overturned due to issues such as ineffective assistance of trial counsel and scientific evidence such as DNA being used to exonerate defendants on death row or at least create substantial doubt as to the reliability of the trial court verdict. Also, New Jersey reinstated the death penalty in 1982- the United States Supreme Court allowed the states to resume executions in 1976- but those New Jersey lawyers in favor of repeal point to the fact that no one has been executed in New Jersey since 1963. Juries in NJ have returned 60 death sentences since 1982 with all but 8 of those sentences reversed on appeal.

The signing of the new law by Governor Corzine follows the already existing hold on capital cases following a report by the gubernatorial commission that concluded the death penalty should be repealed in favor of life in prison without parole. The measure may makes the remaining 8 defendants on death row eligible for life in prison without parole. The last states to eliminate the death penalty were Iowa an West Virginia in 1965 according to the National Coalition to Abolish the Death Penalty.

The law is not a series of calculating machines where definitions and answers coming tumbling out when the right levers are pushed.

William O. Douglas, “The Dissent, A Safeguard of Democracy, 32 Journal of The American Judicial Society, 105 (1948).

NEW JERSEY LAWYERS REPRESENTING THE ACCUSED ON SHOPLIFTING OFFENSES MUST MASTER NUMEROUS PROVISIONS OF NEW JERSEY LAW PROVIDING FOR NUMEROUS ANTI-SHOPLIFTING TOOLS FOR BOTH MERCHANTS AND LAW ENFORCEMENT.

Shoplifting is a serious problem in New Jersey with the state legislature enacting a series of law designed to protect the merchant from substantial shoplifting losses and to safeguard the innocent customer. The offense in New Jersey includes behavior such as taking away merchandise with the intention of paying less than the full price to the merchant and hiding merchandise with the intention of not paying for it (ie. purposeful concealment of merchandise). NJ lawyers are aware that when the accused purposefully conceals unpaid items with the intention of stealing them that there is no need to prove that the accused attempted to leave the store premises without making payment. The intent of the accused therefore is a key issue in concealment cases but the legislature provides a permissive inference for the fact finder (ie judge or jury). It is permissible for the fact finder to infer from an act of purposeful concealment that the accused acted with the intention of stealing the goods from the merchant. If the accused can demonstrate the concealment was due to negligence or an accident, that is a defense potentially available to the charge.

The State of New Jersey is obligated to demonstrate guilt by the beyond a reasonable doubt standard. The charge can be adjudicated on the county level as a felony charge if the full retail value of the merchandise stolen exceeds limits set forth in the statute. Otherwise, the case can be heard by local municipal courts in New Jersey as a disorderly persons offense. In addition to other penalties, community service is also required in the amount of 10 days for the first offense, 15 days for the second offense and 25 days of community service for third and subsequent offenses with a minimum term of confinement for those convicted of third and subsequent offenses.

Legal Quote of the Week:

When a man points a finger at someone else, he should remember that four of his fingers are pointing at himself.
Louis Nizer, My Life in Court, 1960

WHAT IS THE LEGAL DEFINITION OF REASONABLE DOUBT AS REQUIRED BY THE UNITED STATES CONSTITUTION AND NEW JERSEY CONSTITUTION, REFINED BY THE NEW JERSEY SUPREME COURT AND APPLIED EVERY DAY BY NEW JERSEY LAWYERS, JUDGES AND JURIES IN STATE COURTS?

There is much popular culture surrounding the concept of reasonable doubt in our society. It is a term mandated by our system of law including the United States Constitution and the New Jersey Constitution. New Jersey lawyers practicing municipal court law also apply the concept in disorderly persons/petty disorderly persons cases and even motor vehicle charges and municipal ordinances. Stated simply: reasonable doubt is the burden of proof placed upon the government to demonstrate a person is guilty of the charged offense.

The standard jury charge for New Jersey and Supreme Court case law has refined what reasonable doubt is and has provided a framework for the decision maker (a judge or jury) to apply the concept. According to the law in New Jersey then, proof beyond a reasonable doubt is proof, for example, that leaves a person firmly convinced of the defendant’s guilt. A reasonable doubt is an honest and reasonable uncertainty in the mind of the judge or jury about the guilt of the defendant after the judge or the jury gives full and impartial consideration to all of the evidence. A reasonable doubt may arise from the evidence itself or from a lack of evidence. It is a doubt that a reasonable person hearing the same evidence would have.

NEW JERSEY WORK INJURY LAW PROVIDES COMPENSATION TO JOB ACCIDENT VICTIMS WITHOUT CONSIDERATION OF FAULT AND IS GENERALLY THE ONLY REMEDY AVAILABLE AGAINST THE EMPLOYER.

William Pitt, “The English Constitution” speech delivered in the House of lords in reply to Lord Mansfield in the Case of Wilks, January 9, 1770

NEW JERSEY COURT OF APPEALS EXPRESSLY UPHOLDS REQUIREMENT OF THIRTY DAY SERVICE OF PROCESS OF MUNICIPAL COURT COMPLAINTS OR THE CASE WILL BE DISMISSED AGAINST THE DEFENDANT

New Jersey lawyers practicing before the Municipal Courts of the State of NJ consider the recent upholding by the Superior Court of New Jersey, Appellate Division, of the statute requiring that service of process upon the defendant be accomplished of a municipal court charge within 30 days after the alleged commission of the offense. The rationale for the time limitation is to protect a defendant from having to defend against stale allegations. Once service of process occurs within the time required (ie. timely notification of the allegations charged), however, formal errors or omissions in the charging document can be corrected within a reasonable amount of time.

In the case before the Court, a vehicle accident in Winslow Township, New Jersey occurred on October 30, 2004 with no charge or summons issued on the date of the accident. A complaint-summons was issued on November 29, 2004, the thirtieth day following the accident. However, the defendant was not notified within the thirty day period either that a charge was being filed against her or what the charge entailed. Due process and other fundamental fairness concerns required application of the “square corners’ doctrine to the State which holds that the government must “turn square corners” in its dealing with the public.

Nor shall any person…be deprived of life, liberty, or property, without due process of law.

NEW JERSEY LAWYERS REPRESENTING DRIVERS ON NJ HIGHWAYS CONSIDER RECENT AMENDMENTS TO USE OF WIRELESS COMMUNICATIONS WHILE OPERATING A MOTOR VEHICLE

As of April 1, 2008, NJ Lawyers defending motorists of traffic charges in the New Jersey Municipal Courts have to deal with an amendment to the cell phone use and text messaging statute. From now on, any motorist while operating a motor vehicle who is observed by NJ law enforcement to be using a cell phone (including text messaging) can be pulled over and charged on that basis alone. The offense is now a “primary” offense in New Jersey which means the police may make a motor vehicle stop if observing this infraction. Note that a hands-free wireless phone is not included in the definition of the offense as long as the operator exercises a high degree of caution while operating the motor vehicle.

Exceptions to the use of hand held wireless telephone with one hand on the steering wheel are found if: 1) the operator of the motor vehicle is in fear for his or her safety; 2) the operator is using the device to contact emergency personnel such as fire, medical, alert authorities to a road hazard or the reporting of negligent driving of others drivers on the NJ roadways.

The amended statute provides that the same sentencing scheme, including $250.00 surcharge, applies as for unsafe operation of a motor vehicle under NJSA 39:4-97.2.

Four things belong to a judge: to hear courteously, to answer wisely, to consider soberly, and to decide impartially.

NEW JERSEY LAWYERS CONSIDER RECENT NJ COURT OF APPEALS DECISION UPHOLDING NECESSITY OF TRIAL COURT JUDGE TO INFORM ANY DEFENDANT OF A 45 DAY TO APPEAL RULE AS PART OF ANY SENTENCE IMPOSED.

A Defendant in the State of New Jersey has 45 days to appeal from a final judgment of conviction with a 30 day extension under certain circumstances. The sentencing order is typically signed by the NJ trial court judge at which time the order is entered by the court clerk into the record. The judgment of conviction is generated and provides the necessary finality to the trial court proceedings making it appropriate to begin counting the days upon which the defendant must elect whether or not to file a notice of appeal.

In the case before the New Jersey Court of Appeals, the defendant did not file a notice of appeal until well beyond the required 45 days from the judgment of conviction and the State of New Jersey sought to bar the appeal from going forward on the basis of an untimely filing of the notice to appeal. The Court examined the sentencing hearing that took place at the trial court level and found the proceedings there not sufficient to give notice to the defendant of the 45 day rule requirement. The trial court judge simply failed to inform the defendant of his appeal rights. If not notified by the trial court, the defendant may not be completely knowledgeable of the time constraints on the important due process right of appeal. As such, the NJ Court found there was no procedural bar from this defendant filing a notice of appeal beyond the typical 45 day requirement.

The advice of the elders to young men is very apt to be as unreal as a list of the hundred best books.

Oliver Wendell Holmes, “The Path of the Law”, Collected Legal Papers, 1921

NEW JERSEY WORK ACCIDENT LAWYERS CONSIDER MEDICAL BENEFITS PROVISION OF THE NEW JERSEY WORKERS COMPENSATION ACT TO PROVIDE NECESSARY AND REASONABLE MEDICAL TREATMENT FOR INJURED EMPLOYEES COVERED BY THE ACT.

According to N.J.S.A. 34:15-15: “an employer shall furnish such medical, surgical and other treatment and hospital service as shall be necessary to cure and relieve the worker of the effects of the injury and to restore the functions of the injured member or organ where such restoration is possible.” As such, New Jersey work injury employees who cannot medically have the reduced function of the member or organ restored are entitled to permanency benefits.

According to the New Jersey statute, if the employer refuses or neglects to provide medical treatment, the work injury employee may secure such treatment and the employer will become liable for the payment, provided that the employee requested the employer to furnish the treatment and the employer refused or neglected to do so, or, unless notification is impossible due to the nature of the injury or the circumstances where so peculiar as to justify.

Case law interpreting the statute has held that as long as there is competent medical evidence and the treatment is reasonably necessary to cure or relieve the effects of the injury, there may be the necessity for continuing medical treatment if the function of the member or organ is thereby increased.

No law perfectly suits the convenience of every member of the community: the only consideration is, whether upon the whole it be profitable to the greater part.

NEW JERSEY LAWYERS PRACTICING BEFORE THE UNITED STATES FEDERAL DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY IN CRIMINAL MATTERS CONSIDER RECENT CASE FROM U.S. SUPREME COURT ON FEDERAL SENTENCING GUIDELINES.

In 2005, the United States Supreme Court ruled that the Federal Sentencing Guidelines do not have mandatory application in the sentencing process and thereby allowed Federal District Court Judges greater discretion in fashioning an equitable sentence considering the totality of the circumstances surrounding the crime and the defendant. The Court in that case held that any mandatory sentencing scheme imposed upon federal judges, in New Jersey or anywhere else in the country, violates the Sixth Amendment to the United States Constitution.

The U.S. Supreme Court has now ruled that any sentence rendered by the District Court Judge is presumptively reasonable if within the guideline range resulting from the Federal Sentencing Guidelines and Courts of Appeals are permitted to adopt a presumption of reasonableness when reviewing sentences handed down by trial judges. There are limitations to the reasonableness however. The presumption is not binding on the sentencing judge and a court can deviate from the guidelines in the exercise of reasoned discretion. As the Court noted: “The commission has not developed any standards or recommendations that affect sentencing ranges for many individual characteristics. Matters such as age, education, mental or emotional condition, medical condition (including drug or alcohol addiction), employment history, lack of guidance as a youth, family ties, or military, civic, charitable, or public service are not ordinarily considered under the guidelines.” Given these lack of variables in the guidelines, according to the Court, it is appropriate for deviations from the guidelines with reversals only if they show an abuse of discretion.

In any event, mere speed is not a test of justice. Deliberate speed is. Deliberate speed takes time. But it is time well spent.

NEW JERSEY WORKERS COMPENSATION LAWYERS WATCH MOVE TO BAR RIGHT TO SUE TO ILLEGAL WORKERS IN NEW JERSEY FROM SUING ANY THIRD PARTIES FOR WORK RELATED INJURIES.

According to some estimates, there are now approximately 400,000 illegal aliens residing in the State of New Jersey and the number is anticipated to get higher as employers seek to curb labor costs. In two pending cases, both workers fell from ladders and suffered severe injuries as a result. They both collected work injury benefits in the State of New Jersey under the Workers Compensation laws. Illegal aliens are currently eligible to receive work accident benefits in NJ. After their work injury case, both workers sought to bring a third party action against a party other than the employer for damages sustained. This is where the fight is taking place. The current state of the law in New Jersey allows for illegal aliens to collect PIP insurance benefits in automobile accidents and to sue for damages in non-job related accidents. The move underway for third party work accident cases to bar the illegal aliens from bringing the third party action to recover lost wages, pain and suffering and other non-economic recovery.

New Jersey lawyers who represent injured workers may make the argument that barring the court house doors to undocumented aliens is against fundamental fairness while others may argue that the workers are denied workplace rights under federal law.

The New Jersey Superior Court, Appellate Division, may get to decide the issue at some point in the future.

Any people anywhere being inclined and having the power have the right to rise up and shake off the existing government, and form a new one that suits them better. This is a most valuable, a most sacred right- a right which we hope and believe is to liberate the world.

NEW JERSEY LAWYERS REPRESENTING THE ACCUSED IN NJ TRIAL LEVEL COURTS CONSIDER RECENT CASE DEFINING THE OBLIGATION OF LAW ENFORCEMENT TO ADMINISTER MIRANDA WARNINGS TO A SUSPECT DURING THE COURSE OF INTERROGATION.

In New Jersey state and federal courts, custodial interrogation by NJ law enforcement requires that the suspect be given Miranda warnings prior to questioning. NJ lawyers now have a case further defining the Miranda obligation in the context of an interview by police of a witness to an alleged crime. Later, during the course of the same interview, the focus shifted to a confrontational and accusatory tone against the witness as the possible perpetrator of the alleged crime. At the outset of the interview, the witness was given Miranda warnings. When the focus of the interview changed, no further warnings were given.

The New Jersey Court of Appeals held that the failure of law enforcement in NJ to re-administer Miranda warnings before the focus changed to an accusatory interrogation rendered any statements given by the defendant to the questioning inadmissible because of the constitutional violation. The issue is whether the defendant knowingly waived his constitutional right to silence- that is, not be a witness against himself. The NJ Court held that when the suspect was first advised of his Miranda rights the suspect believed he was merely being interviewed as a witness. This false perception was actively encouraged by the New Jersey police. Because of this, when the interview changed from merely investigatory to accusatory, the police should have re-administered Miranda warnings. In other words, the assumptions relied upon by the suspect at the time of the initial waiver of his right to silence was based upon a false assumption that the questions were designed merely to elicit information of a non-accusatory nature.

In respect of civil rights, all citizens are equal before the law. The humblest is the peer to the most powerful.

NEW JERSEY LAWYERS REFLECT UPON REQUEST OF FEDERAL PROSECUTORS TO DENY PUBLIC ACCESS TO PLEA RELATED DOCUMENTS IN CRIMINAL CASES IN THE FEDERAL DISTRICT COURT OF NEW JERSEY AND ACROSS THE COUNTRY.

New Jersey lawyers representing the accused before the United States District Court of New Jersey in the Camden, Trenton or Newark vicinages are familiar with the process of negotiating plea agreements. Most cases brought before the Court are resolved via plea agreements. If the agreement is not sealed by the District Judge, it is accessible by the public on the court website. This policy has been in place since 2004 but most federal courts throughout the United States did not formally institute public access via the internet until typically from 2005 to 2007. The increased public access has led to concerns from the Department of Justice- particularly in view of an increase in the prosecution of violent crimes in federal courts throughout the country. According to a letter submitted by the Department of Justice: We are witnessing the rise of a new cottage industry engaged in republishing court filings about cooperators on Web sites…or the clear purpose of witness intimidation, retaliation or harassment. Also, according to the Department of Justice, sealing the plea agreements is not sufficient because of the notation of sealed appears over the internet making the notation a “red flag” for someone who is in fact cooperating with the government against other defendants.

In response, the Judicial Conference of the United States has called for a period of public comment regarding the current policy of allowing internet access to non-sealed plea agreements.

There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.

NEW JERSEY LAWYERS REPRESENTING THE ACCUSED IN NEW JERSEY MUNICIPAL COURTS REVIEW RECENT CASE UPHOLDING THE CONSTITUTIONALITY OF A MUNICIPAL SIGN ORDINANCE AGAINST SEVERAL GROUNDS OF OBJECTION RAISED BY THE DEFENDANT.

The Defendant in the case brought before the Lawrence Township Municipal Court used a balloon in the shape of a rat to protest against unfair labor practices. The Defendant was issued a summons for violating a sign ordinance in the town. The NJ Municipal Court Judge found the defendant guilty of the ordinance violation. The Defendant appealed.

The first contention on appeal was that the conduct of the Defendant did not fit the definition of the ordinance. That is, an inflatable rat balloon is not a sign within the definition of the ordinance. Even though the word “sign” was not defined, the Court nevertheless gave the plain meaning to the word and found that the balloon did have a symbolic message in protest of labor practices. The next argument advanced by the Defendant involved whether the ordinance itself was preempted by federal law under the Supremacy Clause of the United State Constitution- that is, whether federal law in this case applies over the municipal ordinance. The Court held that there is no preemption here as there is no conflict with federal law or a frustration of a federal scheme. The Defendant unsuccessfully argued that the National Labor Relations Act took precedence over the New Jersey municipal ordinance.

Another argument raised involved free speech protections under the federal and state constitutions. In rejecting this argument, the Court noted that the ordinance is content neutral- all signs of a type were prohibited- and narrowly tailored to meet the stated governmental objectives of the ordinance- protect the public and promote overall aesthetics of the area. The Court also found that the ordinance was not void for vagueness as a person of reasonable intelligence would be able to determine from the language of the ordinance exactly what types of signs were or were not prohibited by the that municipal law.

Life is like an artichoke, each day, week, month, year, gives you one little bit which you nibble off- but precious little compared with what you throw away.

Oliver Wendell Holmes, Letter from Holmes to Pollock, January 17, 1887
Ayn Rand, The Fountainhead, 1943

NEW JERSEY LAWYERS PONDER RECENT NEW JERSEY SUPREME COURT CASE UPHOLDING THE CONSTITUTIONALITY OF DNA COLLECTION EFFORTS FROM ALL PERSONS IN NJ CONVICTED OF A CRIME.

New Jersey criminal defense lawyers deal with the New Jersey DNA Database and Databank Act of 1994 requiring that all persons convicted of a crime in the State of New Jersey submit to the collection of a DNA sample to be maintained in a bank of records for potential comparison purposes in other crimes should the need arise in the future. The NJ Supreme Court applied a special needs test as an exception to the warrant and probable cause requirements under the Fourth Amendment of the United States Constitution and equally applicable under the New Jersey Constitution under Article 1, Paragraphs 1 and 7. A special need of law enforcement can provide a separate and independent justification for the government to act independent of the warrant or probable cause requirements. If the requirements are not practical under normal law enforcement procedures, the requirements can be dispensed with.

In consideration of the arguments of the New Jersey lawyer on behalf of the defendant, the NJ Supreme Court held that while law enforcement was involved with the collection process, the main purpose of DNA collection procedures was in fact not to charge the donor with a criminal charge but to obtain and maintain a database similar in fact to the already existing databases for fingerprints. The DNA data collection procedures may be an invasion of privacy but no more than that which is necessary and widely accepted procedure for the taking of fingerprints.

Civilization is the progress toward a society of privacy. The savage’s whole existence is public, ruled by the laws of the tribe. Civilization is the process of setting man free from men.

NEW JERSEY LAWYERS CONSIDER THE USE OF “OTHER CRIMES EVIDENCE” AS POTENTIALLY ADMISSIBLE EVIDENCE AGAINST AN ACCUSED AT TRIAL WHEN THE INFERENCE FROM THE EVIDENCE DOES NOT INVOLVE MERELY THAT THE ACCUSED IS A BAD PERSON LIKELY TO COMMIT CRIMES.

New Jersey law has long held that the introduction of “other crime evidence” simply to show that the accused has a bad character is improper. If a jury will judge the credibility of the defendant and the evidence introduced at trial with the taint of believing that the defendant is a bad person, that jury is more likely to convict the defendant based upon events and circumstances not directly bearing on the crime charged. On the other hand, the “other crime evidence” may be relevant to some other issue other than the character of the defendant: one example is the “signature” crime where the perpetrator of one crime provides such a unique profile that the identical signature in the charged offense suggests that the two crimes were committed by one person. Evidence of the other crime would be admissible against the defendant for the charged conduct under the theory of “signature” crime.

In the case of the former National Basketball Association star Jayson Williams, the matter is scheduled for re-trial on charges that the jury in the first case could not reach a unanimous verdict. In the re-trial, the New Jersey Supreme Court has recently ruled that the actions of Mr. Williams after the alleged commission of the offense are relevant under a consciousness of guilt rationale. Having further analyzed the evidence under the seminal case of State v. Cofield, the NJ Supreme Court further reflected upon potential prejudice to the defendant and found that while prejudice to the defendant exists, it is not outweighed by the relevance of the evidence.

And I would sooner trust the smallest slip of paper for truth, than the strongest and most retentive memory, ever bestowed on mortal man.

Joseph Henry Lumpkin, American jurist
Miller and others v. Cotton and others, 5Ga. 341, 349 (1848)

NEW JERSEY LAWYERS CONSIDER NEW DIRECTIVE FROM NJ ATTORNEY GENERAL REQUIRING LAW ENFORCEMENT INQUIRY OF IMMIGRATION STATUS ON ALL ARRESTS FOR INDICTABLE OFFENSES AND POSSIBLE SUBSEQUENT REPORTING TO THE IMMIGRATION CUSTOMS ENFORCEMENT AGENCY OF ANY POTENTIAL IMMIGRATION VIOLATIONS.

The new Attorney General of the State of New Jersey, Anne Milgram, issued a directive recently refining the relationship of New Jersey law enforcement with the federal agency responsible for immigration- the Immigration and Customs Enforcement Agency (commonly referred to as “ICE”). New Jersey lawyers representing the accused in criminal matters in NJ frequently have to consider the immigration consequences of any possible conviction. The directive requires an inquiry by the police after an arrest on “serious criminal charges” which includes all indictable offenses. An indictable offense in New Jersey encompasses a wide range of potential charges against an individual. In addition, the directive also requires the same inquiry for arrests made for the traffic offense (not criminal offense) of driving while intoxicated. The inquiry should include questions regarding citizenship, nationality and immigration status. If there is reason to believe there is an immigration violation, the matter shall be turned over to ICE.

The focus of the New Jersey directive is on the accused, not the complaining witness or person requesting assistance from the police. The State of New Jersey does not want to discourage potential witnesses or others in need of assistance from seeking help when needed because of a potential immigration backlash from the request for assistance from law enforcement. According to the Attorney General: “This overriding mission of law enforcement officers in this state is to enforce the state’s criminal laws and to protect the community that they serve…. Public safety suffers if individuals believe that they cannot come forward to report a crime or cooperate with law enforcement.”

Latin proverb, W. Gurney Benham, Putnam’s Complete Book of Quotations, Proverbs and Household Words, 1927

NEW JERSEY SUPREME COURT EXPANDS PROTECTION OF MOTORISTS FROM UNFOUNDED REQUESTS BY LAW ENFORCEMENT FOR CONSENT TO SEARCH OF VEHICLE COMMONLY REFERRED TO BY NEW JERSEY LAWYERS AS THE CARTY PROTECTIONS DEVELOPED IN RESPONSE TO RACIAL PROFILING ON THE HIGHWAYS OF NJ

New Jersey lawyers who review the constitutionality of a vehicle stop and subsequent search often review the opinion of State v. Carty where the NJ Supreme Court held that the New Jersey Constitution requires law enforcement to have a “reasonable and articulable suspicion that the search of the vehicle will produce evidence of criminal activity before requesting a driver’s consent to search following a routing traffic stop. Merely advising the motorist of the right to refuse consent (which is another constitutional requirement) is not sufficient. In proper context, Carty can place restrictions in the police from even requesting a consent search unless the circumstances, viewed in their entirety, would allow a fair and reasonable inference that a search of the vehicle will result in obtaining evidence of criminal activity.

New Jersey lawyers now can include not just motorists stopped on routine traffic offenses within the ambit of this protection but also motorists who break down on the roadside. Occupants of disabled vehicles have the same protection. The case involved a disabled vehicle on the New Jersey turnpike where, in 2004, State Troopers arrived on the scene and after asking questioning and receiving inconsistent stories asked for permission to search the vehicle. The trial court found that the police acted merely on a hunch and what began as rendering assistance to stranded motorists turned into an “investigative detention” in which the motorists clearly knew they were not free to leave.

The right to be alone- the most comprehensive of rights, and the right most valued by civilized men.

NEW JERSEY LAWYERS REPRESENTING INJURED WORKERS SEEKING COMPENSATION BENEFITS CAN NOW OBTAIN AN AWARD FOR TINNITUS- RINGING IN THE EARS- WITHOUT A SHOWING OF RELATED HEARING LOSS AS LONG AS THE INJURY OCCURRED WITHIN THE TRADITIONAL DURING THE COURSE OF EMPLOYMENT STANDARD.

New Jersey work injury lawyers now have a ruling from the New Jersey Superior Court- Appellate Division- holding that tinnitus is an impairment as defined under the NJ Workers’ Compensation statute. An impairment allows for the award as a permanent partial disability. Impairment requires, however, a basis in demonstrable medical evidence and the restriction of a bodily function. A material lessening of an injured employee’s working ability is one criteria used to determine if the test is met.

Tinnitus- persistent ringing in the ears- is a compensable impairment if the required proof is brought forward for the Judge of Compensation in New Jersey regardless of whether hearing loss also accompanies the work injury. Like an other workers’ compensation case in NJ, the injured employee must show that tinnitus in fact occurred to a material degree due to exposure to harmful noise in the workplace over a period of time or in a single incident that is backed up by objective medical testing.

After a five day trial before a Judge of Compensation, a finding was made that the tinnitus existed after review of medical evidence, that it was significant and causally related to the worker’s environment at work (loud construction drilling between 1999 and 2002). Such condition is a qualified disability, according to the Appellate Court opinion, even though the claimed hearing loss by the employee associated with tinnitus did not meet statutory requirements for compensation.

"It is error alone which needs the support of government. Truth can stand by itself. "

NEW JERSEY LAWYERS REFLECT UPON RECENT SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION, HOLDING THAT THE FOURTH AMENDMENT PROTECTION AGAINST UNREASONABLE GOVERNMENTAL SEARCHES AND SEIZURES DOES NOT PROVIDE FOR A REAOSNABLE EXPECTATION OF PRIVACY IN OPEN FIELDS THAT ARE USED FOR THE CULTIVATION OF CROPS.

New Jersey lawyers representing the accused in NJ often analyze the actions of the government to determine any potential constitutional violations that may have occurred during the course of the investigation and ultimate arrest of a defendant. As part of the that analysis, the Fourth Amendment to the United States Constitution and the New Jersey Constitution under Article 1, paragraph 7 protect citizens against unreasonable police searches and seizures by requiring warrants issued upon probable cause unless the search falls within one of the few well-delineated exceptions to the warrant requirement. In the case of an open field owned by an accused, the initial inquiry involves whether that person has a constitutionally recognized reasonable expectation of privacy in that area that would require protection of the Fourth Amendment and the New Jersey Constitution.

The home is traditionally recognized as having a reasonable expectation of privacy attached to it. This protection extends to the curtilage of the home which in New Jersey is typically defined as the land adjacent to the home including walkways, driveways and porches (ie. areas tied to the usage of the home). Curtilage does not include land used for activities such as cultivation of crops, whether or not that land is fenced or posted against trespass. As the New Jersey Court of Appeals noted, the New Jersey Constitution can provide New Jersey lawyers an additional basis to argue for a reasonable expectation of privacy in the area searched but none could be found to exist regarding fields used for to grow crops.

In the case before the Court, law enforcement used a helicopter to fly over an open field owned by the accused for aerial observation of the area. The area of observation was separated from the home by a row of weeds growing into the field. In short, there was no support for a finding that this field or its use was intimately tied to the home.

NEW JERSEY LAWYERS CONSIDER RECENT OPINION OF NJ SUPREME COURT OVERTURNING LOWER COURT RULING ON THE SUPPRESSION OF EVIDENCE IN A CASE WHERE THE ACCUSED COMMITS SUBSEQUENT ILLEGAL ACTS AFTER THE INITIAL STOP BY LAW ENFORCEMENT

The defendant in the case before the Supreme Court was convicted of weapons offenses. As part of his defense, a motion was filed objecting to the admissibility of evidence on the basis that the initial stop by the police lacked sufficient grounds required under the state and federal constitutions. The Court of Appeals overturned the conviction on the basis that the initial stop was in fact unconstitutional and the fact that the defendant may have obstructed justice by fleeing from the scene when approached by the officers did not alleviate the taint of the unconstitutional activity in initially stopping the defendant without reasonable and articulable suspicion. After the defendant fled, he was subsequently apprehended and at that point the police had probable cause to arrest and therefore search him for weapons or contraband. Upon searching, the police found a weapon.

The New Jersey Supreme Court did not agree with the Court of Appeals. According to the Court: “In obstructing the officers, defendant committed a criminal offense, which led to his arrest and to the discovery of the handgun incident to that lawful arrest. Obstructing the police constituted a break in the chain from the investigatory stop, which will presume was unconstitutional. The taint from that initial stop was significantly attenuated by defendant’s criminal flight that caused the handgun’s later seizure.”

In short, regardless of the legality of the stop, the citizen must submit to it without a fight or attempting to flee. The taint of the earlier unconstitutional act by law enforcement is eliminated by the subsequent illegal act of the defendant in fleeing which then provides the lawful constitutional basis for the search and the subsequent retrieval of evidence that the State of New Jersey seeks to introduce against the accused at trial.

A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments is the only true sovereign of a free people.

NEW JERSEY LAWYERS REFLECT UPON RECENT SETTLEMENT OF PENNSYLVANIA INSURANCE BAD FAITH CLAIM RESULTING IN CARRIER AGREEING TO PAY 20 MILLION ON A CASE THAT THE CARRIER COULD HAVE SETTLED IN GOOD FAITH FOR THE POLICY LIMIT OF 1 MILLION IN CASE RESULTING IN CATASTROPHIC INJURIES TO THE PLAINTIFF FROM A DRUNK DRIVER’S NEGLIGENCE ON THE ROAD.

Princeton Insurance Company has agreed to pay a settlement of twenty million dollars on account of bad faith in the handling of dram shop case in Pennsylvania. The settlement represents the largest settlement in the state for a bad faith case against an insurance carrier. A tavern, the insured, had insurance through Princeton under a policy with limits of one million dollars. A Philadelphia County jury returned a verdict against the tavern for seventy-five million after the Plaintiff offered to settle the matter for the policy limits. The insurance company refused to settle. Princeton later faced an accusation that the refusal to settle was done in bad faith. In moving papers, Princeton was characterized as realizing the tavern had no possible defense and that the Plaintiff’s injuries were devastating. In their brief against Princeton, plaintiff’s argued that: “Any rational insurance professional would have recognized that a Philadelphia jury would find [Plaintiff’s] condition so compelling, and the circumstances of his loss so heinous, as to guarantee an enormous verdict.” In so ignoring the facts and the law, the insurance carrier subjected their insured, the tavern, to greater liability than necessary when given the clear opportunity to settle the case within the policy limits.

New Jersey lawyers representing those injured by the negligence of others often refer to a New Jersey precedent found in the case of Rova Farms Resort, Inc. v. Investor’s Insurance. In that case, the Court indicated that a good faith evaluation of a claim required a realistic decision on whether to settle or defend the matter based upon all the factors bearing upon the advisability of a settlement for the protection of its insured. In that regard, the insurance carrier must consider more than its own opinion as to liability and damages but “what the jury could be justified in finding from the evidence available and adduced.” The duty imposed on the insurance carrier in New Jersey includes a duty to negotiate in good faith and to “consider the interests of the insured, as well as its own, in deciding whether or not to settle the case within the limits of the policy.” If the case potentially exposes the insured defendant to personal liability in the form of a judgment in excess of the policy limits, the insurance carrier needs to consider that possibility in deciding how to handle a potential settlement of the case.

God forbid that the rights of the innocent should be lost and destroyed by the offence of individuals.

NEW JERSEY LAWYERS REPRESENTING THOSE INJURED BY THE NEGLIGENCE OF OTHERS CAN EXTEND THE DUTY OF CARE OWED TO THOSE IN A POSITION TO RENDER ASSISTANCE AND, IF THEY CAN EASILY DO SO, AVOID DEATH OR SERIOUS BODILY INJURY TO ANOTHER.

New Jersey lawyers consider recent case decided by NJ Court of Appeals reversing a grant of summary judgment in favor of passengers of a vehicle who failed to summons emergency aid to an injured cyclist lying helpless in the middle of a major New Jersey highway. The passengers, students at a local NJ college, were returning home after a attending a party. The driver of the vehicle was intoxicated and the passengers knew of the driver’s inebriated condition. On the way back to the college, the driver struck a motorcyclist. The cyclist remained in the middle of the Garden State Parkway motionless and the passengers assumed the cyclist was dead. They made many phone calls from the scene on their respective cell phones but did not make a call to render emergency aid. All left the scene. The cyclist was later hit by another vehicle and sustained fatal injuries at that time.

The Court of Appeals reversed the grant of summary judgment and thereby sent the case back to the trial court for a jury trial on the issue of liability of the passengers. The law in New Jersey has traditionally not imposed any duty of bystanders to render any aid to another in need of assistance even if that person in need is in danger of loss of life. This doctrine applies even if the bystander can easily aid the person in need. However, there are many exceptions. The relationship between the parties may create a duty on the part of the otherwise bystander to take affirmative action. NJ Lawyers note the reference by the Court of Appeals to social policy that may justify the imposition of a duty to act. There may be circumstances where a duty to act is imposed- duty to make a reasonable effort to give assistance and avoid further harm where the prior conduct has created an unreasonable risk of harm to the injured person. This extension of a duty imposed, according t the New Jersey Court of Appeals, would not offend notions of fairness and public policy in the State of NJ.

In the case before the Court, a jury may have imposed such a duty. The risk to the cyclist was readily foreseeable and the risk of harm created by their own inaction was easily corrected with the summons of aid for the immobile cyclist in the middle of the road particularly in this case where the passengers at the very least acquiesced in the drunk driving of the driver.

There is in all men a demand for the superlative, so much so that the poor devil who has no other way of reaching it attains it by getting drunk.

NEW JERSEY WORKERS’ COMPENSATION LAWYERS CONSIDER RECENT NJ APPELLATE DIVISION RULING ENFORCING THE EMPLOYEE BAR TO TORT RECOVERY FOR WORKPLACE INJURIES IN THE STATE OF NEW JERSEY WITH A VERY NARROW EXCEPTION FOR INTENTIONAL INJURIES.

New Jersey lawyers practicing in the field of workers’ compensation are familiar with the concept of the workers’ compensation bar: that is, the remedies available in workers’ compensation are the sole remedy available to the injured employee. There are no avenues for the injured worker to sue the employer- including civil suits claiming damages for pain and suffering.

A very limited exception to the bar applies if the employee can demonstrate intentional injury. There are two requirements: First, the employee must prove an injury sustained outside the scope of the industry where the employee is gainfully employed. Presumably, such injuries were not intended by the Legislature of the State of New Jersey in enacting the workers’ compensation bar. Second, the employer must have intended to injure the employee or was substantially certain the employee would be injured.

In the case before the New Jersey Court of Appeals, a teacher attempted to sue her Board of Education on the grounds that an assault by the student was in fact predictable to the point where it was substantially certain she would be injured and beyond the scope of the industry where she worked. The student had a history of violent conduct that was known to school officials. In spite of the history, the Court of Appeals in NJ held that the school did not have a motive of greed or engaged in deception or other moral turpitude which lead to the teacher’s injuries. As such, the Court held assaults on the job for teachers are part of the industry and not outside the scope of the industry.

The workers’ compensation bar against any other recovery for the employee outside of workers’ compensation benefits remains strong in New Jersey.

All laws are promulgated for this end: that every man may know his duty; and therefore the plainest and most obvious sense of the words is that which must be put on them.

SUPREME COURT OF NEW JERSEY REMANDS THE CAPITAL MURDER CONVICTION BACK TO THE TRIAL COURT FOR A NEW TRIAL AS A RESULT OF POTENTIAL RACIAL BIAS OF ONE JUROR AND THE POTENTIAL IMPACT OF THE BIAS ON THE ULTIMATE GUILTY VERDICT OF THE JURY.

New Jersey lawyers practicing criminal defense often rely upon the wealth of favorable precedent from the New Jersey Supreme Court especially in the area of capital punishment. In a recent case, the Court overturned the capital murder conviction based upon the remark of a juror that he was going to “get me a good rope so when we hang him it won’t break.” The Court, voting in a strong six to one majority, found that comment reminiscent of lynching and suggested racial bias with the juror and a potential influence on the outcome of the verdict.

The process of jury selection is designed to produce a jury free from preconceived notions regarding the nature of the case or the defendant. Remarks prejudging guilt, particularly on the basis of potential racial bias, present the specter of a verdict that is not based upon the evidence but other impermissible factors. Any predisposition toward either the state or the defendant detracts from the rights of both parties and the ultimate search for the truth and a just outcome of the case. Questioning of potential jurors during jury selection is designed with the goal of eliminating those who may labor under the influence of bias and predispositions likely to influence judgment beyond what is presented as evidence in the trial.

Reason transformed into prejudice is the worst form of prejudice, because reason is the only instrument for liberation from prejudice.

NEW JERSEY LAWYERS REFLECT UPON NEW JERSEY SUPREME COURT DECISION LIMITING APPLICATION OF MIRANDA REQUIREMENT IF THE EVIDENCE WOULD HAVE BEEN SEIZED BY LAW ENFORCEMENT REGARDLESS OF THE INFORMATION PROVIDED BY THE ACCUSED.

Miranda rights are constitutionally required before law enforcement can question a suspect while in custody. Custody occurs when a reasonable person under the circumstances would believe that he or she is not free to leave. In the case before the NJ Supreme Court, two Newark police officers had a suspect in custody whom they had probable cause to arrest for distribution of illegal narcotics on the streets of that city. While in custody, the officers asked the suspect what was in his sock. The suspect responded that there were illegal narcotics in his sock. The person was later convicted of selling cocaine in a school zone.

The arrest of the suspect was not an issue in the case before the Court. The questioning of the defendant and the resulting admission of possession of illegal narcotics should have been suppressed at the defendant’s trial. This error, however, was found to be harmless because the inevitable search of the defendant after arrest would have led to the discovery of the narcotics at that time. That the defendant told the police about what was in his possession prior to the police finding it themselves did not alter the outcome of the case. The seizure of the narcotics had an independent constitutional justification for admission against the defendant at trial in spite of the constitutional violation of not providing the defendant Miranda rights prior to interrogation.

The vision of America held and defined by the Warren Court was the noblest and most honorable of them all- a vision of justice in its ultimate form, the form of freedom. It may not have been perfect…. But it dared to turn from darkness to face the sun.

NEW JERSEY LAWYERS REVIEW RECENT SUPREME COURT CASE OUTLINING POLICE-CITIZEN INTERACTIONS UNDER THE FOURTH AND FIFTH AMENDMENTS AND THE RELEVANT CONSTITUTIONAL STANDARDS APPLYING TO VARYING FORMS OF LAW ENFORCEMENT CONTACT WITH THE CITIZENRY IN THE CONTEXT OF AN AUTOMOBILE STOP.

The New Jersey Appellate Division recently decided a fact specific case regarding the legality of police conduct during an automobile stop which ultimately led to evidence against the occupants of illegal drug possession. In the case, the New Jersey Superior Court trial judge suppressed evidence of cocaine and marijuana seized from an automobile on the basis that the officer unconstitutionally expanded the scope of the initial automobile stop without reasonable suspicion and also violating the defendants’ protection against self-incrimination by failing to provide Miranda warnings when applicable (ie. at the moment of custodial interrogation).

The Appeals Court initially reiterated the well established principle of constitutional law that an initial stop of an automobile must be predicated upon probable cause- even if is probable cause to believe that any traffic violation has occurred. In the case before the Court, the justification for the initial stop was not challenged. After the initial stop, any investigation by law enforcement must be reasonably related to the reason for the initial stop. Routine questions are permissible including the where the drive is going and where the driver came from and for what purpose. After questioning and investigation, if the police decide to expand the investigation beyond the initial reason for the stop, the courts of New Jersey will examine the conduct of law enforcement to determine if the least intrusive investigative techniques reasonably available to verify or dispel the suspicion in the shortest time period were used.

If the level of intrusion warrants, a conclusion of custodial arrest will also follow triggering the requirement that any questioning by law enforcement be preceded by the administration of the Miranda rights. The Courts will examine the length of unnecessary delay, whether the police conduct invokes fear or humiliation in the occupants of the car and whether the occupants were isolated or confined in any manner.

Legal Quote of the Week:

The American constitutions were to liberty, what a grammar is to language: they define its parts of speech, and practically construct them into syntax.

Thomas Paine, The Rights of Man, 1791

May 28, 2007

IN THE CONTEXT OF A WITNESS TESTIFYING AT TRIAL FROM DREAM REFRESHED RECALL, NEW JERSEY LAWYERS CONSIDER RECENT NJ SUPREME COURT CASE ALLOWING ADMISSION OF TESTIMONY WITHOUT A FOUNDATION FROM AN EXPERT.

New Jersey Evidence Rule 702 allows the admission of expert testimony in a trial if the testimony will assist the trier of fact (either judge or jury) to understand evidence or determine a fact in issue before in the matter brought before the Court. The scope of potential expert testimony is extremely broad. In the context of a civil case seeking an award of monetary damages against another for prior sexual abuse, the Plaintiff need not support dream refreshed memories of the abuse with expert testimony when the memory is the product of a dream not related to therapy in any form. As such, the New Jersey Supreme Court noted: “[T]here was no prodding of plaintiff’s memory that necessitated an expert’s explanation.” Instead the trier of fact needs to assess the credibility of that witness just like any other witness who testifies in the case. The Plaintiff may have been able to produce an expert if desired but it was not required of the Plaintiff in this case.

If the regained memory resulted from the use of hypnosis, medication or any form of professional therapy, expert testimony would be required to explain to the trier of fact the scientific foundation for the ability to recall after the treatment. In this case, however, the Plaintiff’s memory recall was the result of a dream which, being based upon personal knowledge, is the same type of testimony of any lay witness.

Legal Quote of the Week:

I wish I loved my fellow men more than I do, but to love one’s neighbor as oneself, taken literally, would mean to realize all his impulses as one’s own, which no one can, and which I humbly think would not be desirable if one could.

Oliver Wendell Holmes, Jr. 1841-1935

May 21, 2007

NEW JERSEY LAWYERS CONSIDER NEW JERSEY COMMISSION TO REVIEW CRIMINAL SENTENCING RECOMMENDS EXPANSION OF DRUG COURT ELIGIBILITY TO GREATER NUMBER OF DEFENDANTS ACCUSED OF DRUG RELATED OFFENSES.

In order to cope with the number of narcotic related crimes being committed in the State of New Jersey and rehabilitate defendants who have addictions leading to participation in offenses, the New Jersey Commission to Review Criminal Sentencing is recommending increased use of the Drug Court Program. The Program was instituted state wide in 2004 and as of March 2007 2,768 defendants were enrolled, according to statistics maintained by the Administrative Office of the Courts. The stated goal of the program is to rehabilitate non-violent, low level drug offenders with treatment as opposed to jail sentences.

Current admission into the program is limited to third degree offenders with a maximum of a single prior conviction no greater than a third degree conviction. The Commission recommendation would increase the eligibility criteria to include more than one prior third degree conviction but give the prosecutor a veto of the admission. The rational behind the eligibility expansion is that more defendants could benefit from the program and that more than one prior third degree conviction does not necessarily violate the overall admission criteria of the program. Another modification would allow participants to complete the required six months of treatment on an out-patient basis instead of the current residential treatment requirement.

Given the trial court judge more discretion regarding implementing the goal of the Drug Court in New Jersey allows for more flexibility in providing treatment and rehabilitation to those that need it most.

Legal Quote of the Week:

Necessity creates the law,- it supersedes rules; and whatever is reasonable and just in such cases is likewise legal.

Sir William Scott, Lord Stowell, English Jurist

“The Gratitude” (1801) 3 Rob.Adm.Rep. 240

May 14, 2007

RECENT NEW JERSEY SUPREME COURT CASE OF INTEREST TO NEW JERSEY LAWYERS AND THE CRIMINAL JUSTICE SYSTEM IN NJ INVOLVES A RULING PERMITTING A PROSECUTOR TO CROSS EXAMINE THE ACCUSED ON ALLEGED INCONSISTENCIES BETWEEN STATEMENTS GIVEN AFTER MIRANDA WARNINGS WERE PROPERLY GIVEN AND TESTIMONY OF THE ACCUSED AT TRIAL .

A New Jersey trial court Judge should allow cross examination of the accused by the prosecutor on inconsistencies between post-Miranda statements and trial testimony, according to a ruling by the NJ Supreme Court. The case before the Court involved the trial of a defendant accused of armed robbery. The defense posed by the accused at trial was that of duress (ie. his will to decide voluntarily what do to under the circumstances surrounding the crime was overtaken by the will of another person). Given the context of the defense, the prosecutor proceeded to cross-examine the defendant regarding his actions immediately after arrest for the offense on such topics as the alleged failure to tell police of the duress imposed upon him by another (ie. coerced to participate in the crime by another). In closing argument, the prosecutor argued that a reasonable person under the circumstances would have informed the police of the coercion at the time of arrest.

The NJ Supreme Court held that the cross examination regarding statements made to the police at the time of the arrest. New Jersey law recognizes a distinction between pre-arrest silence and post-arrest silence. With regard to silence while in custody, under interrogation or at or near the time of arrest, it is improper to comment on the silence of the accused during this time frame. Therefore, any questions by the prosecutor on cross examination of the accused about silence in this period is improper. However, in the context of the questioning, the error was harmless and did not influence the outcome of the proceedings.

Legal Quote of the Week:

Silence [in court] may be equivalent to confession.

Talmud, Yevamot

May 7, 2007

NEW JERSEY LAWYERS CONSIDER RECENT NEW JERSEY SUPREME COURT DECISION ALLOWING CROSS EXAMINATION OF THE ACCUSED WHO TAKES THE STAND AT TRIAL TO TESTIFY REGARDING PRE-ARREST SILENCE WHICH DOES NOT VIOLATE THE CONSTITUTIONAL PROTECTION OF RIGHT AGAINST SELF-INCRIMINATION.

The NJ Supreme Court ruled on a case of importance to New Jersey lawyers practicing in the field of criminal defense. The Court ruled recently that a prosecutor can impeach a defendant who takes that stand at trial in his or her own defense with the fact that the defendant was silent to the police when a person would be reasonably expected to make such a statement under the totality of the circumstances. The scenario assumes that the defendant, at the time a statement from him or her would reasonably be expected, is not under any threat or compulsion from law enforcement and that an arrest or custody is not yet an issue in the case. For instance, if the defense at trial is self-defense to an assault charge, an objectively reasonable person may be expected to inform the police of the defense before the person is any compulsion from law enforcement to give a statement.

The majority opinion of the Court reasoned: “Defendant has a constitutional right not to testify [at trial]. The risk of cross-examination is a factor most, if not all, defendants will consider in deciding whether to take the stand. However, once the defendant elects to testify, similar to every other witness, the defendant has an obligation to tell the truth on the witness stand.” A New Jersey trial judge, however, shall instruct the jury that the evidence of defendant’s silence is to be considered only with regard to the defendant’s credibility and not whether the defendant is responsible for the commission of the crime itself.

Legal Quote of the Week:

You, my lord, are a judge; I am the supposed culprit. I am a man; you are a man also. By a revolution of power we might change places, though we could never change characters.

Robert Emmet, 1778-1803; Speech to a judge when on trial for treason.

April 30, 2007

NEW JERSEY LAWYER JOHN F. RENNER ARGUES CASE BEFORE THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT INVOLVING THE APPLICATION OF THE UNITED STATES SUPREME COURT CRAWFORD OPINION TO SENTENCING HEARINGS.

New Jersey lawyers handling federal criminal cases often are required to oppose evidence at the sentencing hearing which may serve as a basis for the trial judge to increase the defendant’s ultimate sentence. In a recent case, NJ lawyer John F. Renner argued that the case of Crawford v. United States should be extended to include the right of confrontation at sentencing on the grounds of fundamental fairness if the issue involves a contested fact which may have an impact upon the defendant’s sentence. In Crawford, the United States Supreme Court held that the Confrontation Clause of the Sixth Amendment render inadmissible testimonial statements by witnesses not produced for trial.

In a published opinion, the Third Circuit addressed Mr. Renner’s argument that Crawford should be applicable at the sentencing hearing for “testimonial” statements. The Crawford Court did not rule expressly on when, if at all, the right of confrontation applies at sentencing. The issue in the case involved a police officer reading the statements of others implicating the defendant in additional illegal activity. For contested factual issues, the Confrontation Clause serves a truth seeking function by testing the allegations under the crucible of cross-examination. If the witness who made the allegations is not present, cross –examination of the accuser is not possible.

The Third Circuit Court of Appeals failed to extend the holding of Crawford to sentencing hearing. The Court held that: “Both the Supreme Court and this Court of Appeals have determined that the Confrontation Clause does not apply in the sentencing context and does not prevent the introduction of hearsay testimony at a sentencing hearing.” The Court warned, however, that even hearsay evidence needs to have some foundation of reliability prior to the admission of the evidence against the accused.

Legal Quote of the Week:

... Churchill never minded contemplating the mystery of death. Once a friend inquired: “What makes you think you will reach the bar of Heaven?” He interjected with solemn assurance: “Surely the Almighty must observe the principles of English common law and consider a man innocent until proven guilty.”

Sir Winston Churchill, 1874-1965, New York Times, February 1, 1965

April 23, 2007

NEW JERSEY LAWYERS REFLECT UPON RECENT NEW JERSEY SUPREME COURT RULING MAKING AN ACCUSED’S RIGHT TO ATTEND “SIDEBAR” CONFERENCES DURING JURY SELECTION APPLICABLE ONLY TO FUTURE CASES.

The New Jersey Supreme Court in 2005 held that a person accused of a felony in the state of New Jersey has the right to be present at “sidebar” conferences during the jury selection phase of the proceedings. The Court recently decided to make that ruling applicable to cases since the time of the ruling and not before. Sidebar conferences during the jury selection process occur when the trial judge convenes a min-conference with the attorneys and usually the prospective juror beyond the hearing of the remaining part of the potential jury panel. Such sidebar conferences are held on the record (recorded by a stenographer) and made part of the official transcript of the proceedings. They are not, however, meant to be overhead by the other potential members of the panel due to the sensitive nature of the topics being discussed and for the fact that the responses of the potential jury member may have a negative impact on the remainder of the panel to decide the cases in a fair and objective manner.

The prior system required the lawyer for the accused to shuttle back and forth between the sidebar conference and the accused sitting at counsel table. The prior system was not unconstitutional, as the New Jersey Supreme Court held, so there is no requirement to apply the 2005 ruling retroactively. The requirement of allowing the accused to attend the sidebar conference stems from New Jersey Rule of Court 3:16 which provides that a defendant shall be present at all stages of the criminal proceeding including the selection of his or her jury. According to the Court: “To apply [2005 decision] retroactively would punish the justifiable reliance of the judicial system on the old rule, which we did not declare unconstitutional, and would upend settled expectations and force reconsideration of long resolved matters. There is simply no counterweight to those negatives that would justify retroactivity.”

Legal Quote of the Week:

Believe not each accusing tongue, As most weak people do; But still believe that story wrong, Which ought not to be true.

Attributed to Richard Brinsley Sheridan, 1751-1816

W. Gurney Benham, Putnam’s Complete Book of Quotations, Proverbs and Household Words, 1927

April 16, 2007

LAWYERS CONSIDER RECENT COURT OF APPEALS DECISION LIMITING THE OBLIGATION OF A DEFENDANT TO PROVIDE ALIBI NOTICE TO THE PROSECUTOR OF WITNESSES OTHER THAN THE DEFENDANT IN ORDER TO PROTECT THE DEFENDANT’S RIGHT TO TESTIFY AND FORMULATE A DEFENSE.

Under traditional notice requirements placed upon defendants in the criminal justice system in New Jersey, the obligation to provide the prosecutor with names and addresses of all witnesses to be relied upon to support at the time of trial to testify in support of an alibi defense is reflected in court rules. An alibi defense allows a defendant to argue that he was not present at the time and location of the alleged criminal conduct for which he is being charged as the perpetrator.

The purpose of the notice requirement is to prevent unfair surprise to the State of New Jersey at the time of trial- the notice must state the specific place where the defendant claims to have been at the time of the alleged offense and the witnesses used in support of the defense. If there are no other witnesses to support the alibi defense other than the defendant, does the defendant still have to provide notice under the court rule of an alibi defense? In a departure from prior case law, the New Jersey Court of Appeals recently held that notice is not required under these circumstances under state and federal constitutional law.

As the Court held: “The central and unique position occupied by the defendant in a criminal trial is such that his testimony on the critical issue of his whereabouts at the time of the crime cannot be forfeited without doing substantial damage to, and thereby undermining, his constitutional right to testify in his own defense.” The New Jersey Supreme Court may have to decide the issue if the matter is brought for and accepted for review by the highest court of the state.

April 9, 2007

NEW JERSEY LAWYERS CONSIDER RECENT RULING FROM NJ SUPREME COURT ON ADMISSIBILITY OF “SIGNATURE CRIME” EVIDENCE FROM THE FBI’S ViCAP DATABASE IN WHICH COURT NOTES LACK OF EXPERT TESTIMONY TO SUPPORT DATABASE MATCHES

If two or more crimes are committed in such distinctive manner that the perpetrator leaves evidence tending to show common characteristics between two otherwise distinct crimes- such evidence is commonly referred to as “signature crime” evidence. Such evidence is often used against a defendant to show identity of the perpetrator. The FBI maintains a database of evidence from approximately 167,000 cases of murder and kidnapping from around the country. The database is known as Violent Criminal Apprehension Program (ie. ViCAP). The New Jersey Supreme Court, after hearing arguments from New Jersey lawyers, recently provided parameters to the proper use of ViCAP in an effort by the prosecution to prove identity of a defendant to other similar crimes bearing “signature” evidence.

Expert testimony is essential as the scope of the topic is beyond the understanding of the average juror. The expert must also support his or her conclusions with reference to a relevant database such as ViCAP. In other words, ViCAP alone is not sufficient to determine admissibility of the evidence as it is mainly an investigatory tool for law enforcement and has not been subjected to rigorous scientific testing to demonstrate reliability of the matching process in the database. The production of a reliable database allows the New Jersey lawyer for the defendant a fair opportunity to test the expert’s methods and credibility on cross examination. The particular case before the New Jersey court involved distinctive bite marks on two separate murder cases (one in New Jersey and one in Maine) involving marks left by the perpetrator on the same parts of each victim’s body.

Legal Quote of the Week:

It is not the function of our government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error.

Robert H. Jackson, United States Supreme Court Justice,

American Communications Association v. Douds, May 1950

April 2, 2007

NEW JERSEY LAWYERS REPRESENTING VICTIMS OF THE NEGLIGENCE OF OTHERS CONSIDER THE NEW REQUIREMENT FOR A SCAR TO SURPASS THE LIMITATION OF LAWSUIT THRESHOLD UNDER THE AUTOMOBILE INSURANCE COST REDUCTION ACT IN THE STATE OF NEW JERSEY.

The New Jersey Supreme Court recently held that a Plaintiff who seeks to pass the verbal threshold (or limitation of lawsuit) bar under the Automobile Insurance Cost Reduction Act must demonstrate significant disfigurement under an objectively reasonable person standard. That is, an objectively reasonable person would deem the scar or disfigurement as “substantially distracting” from that person’s appearance or that it so detracts from the person’s “beauty, symmetry or appearance….as to render him or her unsightly, misshapen, or imperfect.”

In writing for the Court, Justice Rivera-Soto gave the following guidance to a New Jersey Superior Court trial judge making the determination. The trial judge should take into consideration the “appearance, coloration, existence and size of the scar, as well as the shape and characteristics of the surrounding skin, remnants of the healing process, and any other cosmetically important matters.”

The issue before the Court was whether New Jersey law would allow the Plaintiff to bring the cause of action against the negligent person inflicting the injury.

Legal Quote of the Week:

We are thus brought to a conception of Democracy not merely as a sentiment which desires the well-being of all men, nor yet as a creed which believes in the essential dignity and equality of all men, but as that which affords a rule of living as well as a test of faith.

Jane Addams, Democracy and Social Ethics, 1902

March 23, 2007

THE TAKING OF GUILTY PLEAS IN CRIMINAL CASES IN NEW JERSEY REQUIRE THE ACCUSED TO PROVIDE WITH THE ASSISTANCE OF A NEW JERSEY LAWYER A KNOWING, VOLUNTARY AND INTELLIGENT WAIVER OF CONSTITUTIONAL RIGHTS AND A FACTUAL FOUNDATION TO SUPPORT THE PLEA OF GUILTY.

Most of the criminal cases in the Courts of the State of New Jersey are resolved by the parties though a plea of guilty to a criminal statute. As such, the taking of the plea by an NJ Superior Court Judge requires a detailed review of the important constitutional rights given up by the accused and a detailed colloquy between the Court and the accused as to the factual foundation behind the plea. There currently exists in the practice of criminal defense numerous forms required to be completed by the accused as part of the process. The completion of forms assists the Court in completing the inquiry necessary before accepting the guilty plea.

In addition, it is important for the Court to ask several critical questions to establish that the plea is given in a knowing, voluntary and intelligent manner. Inadequate questioning by the Court leads to challenges in the Appellate Division. If the plea is accepted by the Court, the accused waives his or her right to a jury trial and, among other constitutional rights, the ability to confront witnesses by the time honored right of cross examination, to challenge the admissibility of any confession evidence sought to be introduced by the State of New Jersey under the constitutional protections applicable to that type of evidence, to challenge the admissibility of evidence obtained in violation of Fourth amendment protections against unreasonable search and seizure and the right to remain silent before the Court regarding his or her involvement in criminal activity that is part of the plea agreement. The accused also has to be aware of the nature of the charges against him or her and the consequences of a guilty plea (including the maximum sentence, maximum fine and the maximum parole ineligibility). The accused must acknowledge on the record before the Court that the decision to plead guilty is not the result of any coercion or threats from anyone.

If the plea agreement calls for specific recommendations by the State of New Jersey regarding sentence, all terms of the agreement must be likewise placed on the record with the accused acknowledging that there are no other agreements that not contained in the plea agreement being described to the Court. After all this and more are spread out for the Court on the record, the Court must also obtain from the accused what he or she did that makes that person guilty of the offense to which they are pleading guilty. Even though forms assist in achieving a plea of guilty that meets the constitutional and rule of court standard in New Jersey, the basic one on one question and answer session before the Court remains an essential aspect of the process whereby a criminal case is resolved