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

STATE OF NEW JERSEY LEGISLATURE MOVES CLOSER TO MAKING NJ THE FOURTEENTH STATE IN THE UNION TO ALLOW THE LEGAL USE OF MARIJUANA FOR MEDICAL PURPOSES.

If a resident of New Jersey is suffering from a chronic or terminal illness, the Assembly Health, Human Services and Senior Citizens Committee recently recommended passage of a bill that would allow a physician treating the person for the illness to prescribe marijuana to alleviate some of the symptoms of the health condition. In addition, patients with such prescriptions would have to obtain the marijuana from licensed and regulated nonprofit centers instead of growing it themselves which was included in a version earlier passed by the New Jersey Senate.

According to Senator Nicholas Scutari, D-Union: “Over the years, New Jersey has crafted some of the toughest anti-drug laws in the nation, and that’s appropriate when trying to keep kids off drugs. However, we’re not talking about hardened criminals with this legislation, but the sick and dying state residents who have nowhere else to turn, and have exhausted all other treatment possibilities.”

NEW JERSEY LAWYERS REVIEW NJ SUPREME COURT PROCEDURES INVOLVING DISQUALIFICATION OF CERTAIN JUDGES TO HEAR DRUNK DRIVING CASES OR ACTS OF DOMESTIC VIOLENCE ALLEGATIONS.

The New Jersey Supreme Court has established rules concerning the authority of certain judges to hear cases alleging drunk driving or allegations of domestic violence when the judge has been charged with the same conduct. The restrictions are as follows:

Drunk Driving – A judge who has been charged with drunk driving must immediately stop hearing all such cases. The prohibition on hearing DWI cases will continue indefinitely and will expire either one year following the imposition of sentence following a plea or finding of guilty or after all aspects of sentence have been completed, whichever is longer. Any pending, reserved decisions related to a DWI case before the offending judge will be decided by another judge on the papers or re-litigated before another judge at the request of the defendant.

Domestic Violence – A judge who is a party to a domestic violence matter may not hear any domestic violence cases while his DV matter is pending and for one year following the trial court’s disposition of the case. If a final restraining order is entered against the offending judge, he may not hear any domestic violence cases while the order is in effect or for one year from the date of the order, whichever is longer.

NEW JERSEY LAWYERS REVIEW RECENT COURT OF APPEALS DECISION HOLDING THAT A STATE OF NJ PROSECUTOR CAN CONDTION ADMITTANCE OF A DEFENDANT INTO THE PRE-TRIAL INTERVENTION PROGRAM ON A GUILTY TO PLEA TO TRAFFIC TICKETS.

The State of New Jersey offers a Pre-Trial Intervention Program to certain defendants meeting the requirements of the program and with the consent of the county prosecutor’s office. In a recent case before the Superior Court of New Jersey, Appellate Division, the Sussex County Prosecutor consented a defendant’s admission into the Pre-Trial Intervention Program conditioned upon, among other things, that the Defendant plead guilty to several motor vehicle offenses that were factually related to the criminal charges. One of the traffic offenses included leaving the scene of an accident resulting in injuries to another person which carries a mandatory 180 day term of imprisonment.

The Court held that prosecutors are granted wide latitude in deciding whom to admit into the program and whom to prosecute through a traditional trial. That discretion is given wide latitude by the courts in the State of New Jersey. In this case, the Court found that the prosecutor did have adequate grounds to deny the defendant an unconditional admission into the program and that requiring a guilty plea on the traffic offenses was not an abuse of discretion.

He hath in great perfection the three qualifications of a lawyer: boldness, boldness, boldness.

Anonymous, referring to an English judge, Hatton Correspondence, c. late 16^th century.

NEW JERSEY LAWYERS PONDER RECENT COURT OF APPEALS DECISION OUTLINING REQUIREMENTS FOR A CLAIM OF MALICIOUS PROSECUTION.

A claim of malicious prosecution may be based upon an allegation by the Plaintiff that the person who initiated a criminal prosecution against the Plaintiff did so in a reckless manner and without a reasonable basis. If the criminal prosecution proceeded to a Grand Jury which returned an indictment in the matter, the indictment itself represents a finding of probable cause for the filing of formal criminal charges and, as such, a reasonable basis to proceed against the person named in the indictment. If the facts presented to the Grand Jury are in dispute, however, there is the possibility that the Grand Jury finding of probable cause may be disputed.

The case before the Court of Appeals involved a financial institution and its certified fraud investigator and a duty of care to a non-customer in whose name and upon whose identification the institution opened an account. The duty included a duty to conduct a reasonable investigation before initiating criminal proceedings against the person with the stolen identity that was used to open the account.

I’m sick and tired of hearing about the number of cases disposed of when we discuss the judicial system. The chief justice should know that the job of the courts is not to dispose of cases but to decide them justly. Doesn’t he know that the business of courts is justice?

Jim R. Carrigan, American jurist; Justice, Supreme Court of Colorado, Los Angeles Herald- Examiner, August 3, 1977.

NEW JERSEY CRIMINAL DEFENSE LAWYERS REVIEW RECENT MANUAL ISSUED BY NJ SUPREME COURT DETAILING PROCEDURE FOR MODIFYING MEGAN’S LAW DECISIONS OF THE TRIAL COURT JUDGES OF THE SUPERIOR COURT OF NEW JERSEY- CRIMINAL PART.

A new manual published by the Supreme Court of New Jersey outlines procedures and substantive law for trial court judges throughout NJ to follow in deciding motions filed by convicted sex offenders to alter categorization, registration and supervision requirements under the Megan’s Law of the State of New Jersey. The manual took effect on March 31, 2009 and was adopted by the Court after receiving feedback both from the Attorney General’s Office and the Office of the Public Defender.

Pursuant to Megan’s Law, trial court judges assign a tier rating to convicted sex offenders based upon a risk assessment scale. The new manual sets forth procedures to be used for a registrant to change the reporting requirements involved with community notification for those deemed tier two or tier three. The manual also provides for a change in tier status because of changed circumstances if the trial judge deems appropriate.

NEW JERSEY LAWYERS REVIEW RECENT APPELLATE DIVISION DECISION ESTABLISHING NEW PROCEDURES FOR LAW ENFORCEMENT CONDUCTING SEARCHES PURSUANT TO THE AUTHORITY OF A SEARCH WARRANT.

Federal criminal defense lawyers are familiar with the concept of the “reasonable continuation doctrine” which allows law enforcement to suspend temporarily a residential search and return later to the scene, re-enter the residence to continue the search for evidence pursuant to the authority found in an otherwise lawfully issued search warrant. The government must establish that the second search was in fact a continuation of the first search and that the decision to re-enter and conduct a second search complies with the reasonable requirement when viewed under the totality of the circumstances.

For the first time in New Jersey, criminal defense lawyers are faced with an Appellate Division decision authorizing the “reasonable continuation doctrine” in this state. In the case before the Appellate Division, the police acting under the authority of a search warrant attempted to locate a laptop computer in a residence. Unable to locate the laptop, the search was suspended but police returned to the residence two hours later after developing new information as to the location of the laptop which was located and seized on the re-entry to the residence.

Any society that cannot respect its past by granting those who built it financial security faces moral bankruptcy in the future.

NEW JERSEY LAWYERS REVIEW RECENT AMENDMENTS SIGNED BY NJ GOVERNOR REQUIRING THOSE DRIVERS WITH A SPECIAL LEARNER’S PERMIT TO DISPLAY A DECALSO THAT LAW ENFORCEMENT CAN IDENTIFY THOSE DRIVERS IN THE SPECIAL LEARNER’S CATEGORY.

New Jersey Governor Jon Corzine recently signed several amendments to the New Jersey Motor Vehicle Code which will require all drivers with a special learner’s permit to display a special decal readily identifiable by law enforcement that the driver has a restricted license in the State of New Jersey. New Jersey becomes for the first state in the United States to enact a special permit decal law. The law shall be known as “Kyleigh’s Law” and shall go into effect in several months allowing for the Chief Administrator of the NJ Motor Vehicle Commission, in consultation with the Division of Highway Traffic Safety in the Department of Law and Public Safety to design a permit that will be clearly visible to law enforcement during the course of their routine duties. The holder of a special learner’s permit shall not operate a vehicle unless the decals are displayed as directed.

The mark of a truly civilized man is the confidence in the strength and security derived from the inquiring mind.

NEW JERSEY LAWYERS CONSIDER DISMISSAL OF SUIT BY FEDERAL JUDGE OF A NEW YORK JETS FAN’S CLASS ACTION SUIT AGAINST THE NEW ENGLAND PATRIOTS FOR SECRETLY RECORDING SIGNALS OF OTHER TEAMS DURING NFL GAMES.

The National Football League has regulations prohibiting teams from secretly recording the signals used by coaches on rival teams. A United States District Court Judge for the United States District Court for the District of New Jersey recently dismissed a case against the New England Patriots brought by a fan of the New York Jets based upon hidden videotaping by the Patriots of the Jets coaching staff during a game on September 9, 2007. The Plaintiff alleged in a class action lawsuit, among other grounds, that the conduct deprived ticket holders of what they paid for- that is, a game played between two teams not influenced by conduct of either in violation of the NFL rules and regulations. The Federal Judge disagreed by reviewing relevant case law holding that the purchaser of a ticket to a sporting event has the right to enter the facility and view the event. According to the Federal Judge, the law provides no remedy for complaints by ticket holders regarding the quality of the event.

NEW JERSEY LAWYERS REVIEW RECENT TRIAL COURT OPINION ON ADMISSIBILITY OF ALCOTEST READINGS IN CASES WHERE POLICE OFFICER FAILS TO OBSERVE SUSPECT FOR TWENTY MINUTES PRIOR TO TESTING.

According to judges in Mercer and Camden Counties, the State of New Jersey must produce clear and convincing evidence that a police officer personally observed the alleged drunk driver for a period of twenty continuous minutes before the Alcotest results are admissible at trial. That requirement is derived directly from the Supreme Court of New Jersey opinion in State v. Chun decided in 2008 which declared the Alcotest device scientifically reliable.

According to the Mercer County Judge: “The purpose of this observation is to ensure that the defendant has not ingested or regurgitated substances that would taint the breath sample. [The officer’s] failure of recollection defeated the purpose of the observation.”

Ingenuity is one thing, and simple testimony another, and plain truth, I take it, needs no flowers of speech.

NEW JERSEY LAWYERS PONDER RECENT PUBLISHED DECISION OF NEW JERSEY SUPERIOR COURT, LAW DIVISION, REGARDING SUFFICIENCY OF EVIDENCE JUSTIFYING STOP OF AUTOMOBILE BASED UPON ALLEGATION OF DRIVER WEAVING WITHIN LANE OF TRAFFIC.

Law enforcement needs sufficient justification (or reasonable and articulable suspicion) to stop a motor vehicle either on the grounds of a violation of a motor vehicle law in the State of New Jersey or a violation of the criminal or quasi-criminal law. The investigation of further traffic violations or criminal activity by law enforcement may result if law enforcement is presented with sufficient justification for the additional inquiry. In a recent case before the Law Division (trial level court) of the Superior Court of New Jersey, the trial court interpreted whether the driver’s actions as observed by law enforcement constituted sufficient justification to execute a stop defendant’s vehicle. In this case, the defendant was observed by a police officer to veer out of his lane of travel, cross over the fog line which separates the right lane edge with the shoulder of the road. The officer observed this activity by the defendant twice. Based upon these observations, the court concluded that the defendant’s activities were sufficient to warrant a motor vehicle stop. In reaching that conclusion, the court interpreted the statutory provision which makes failure to maintain a lane a violation of the motor vehicle laws in the State of New Jersey.

NEW JERSEY LAWYERS REVIEW RECENT NJ SUPREME COURT RULING NULLIFYING USE OF POLYGRAPH TEST RESULTS DURING TRIAL WHEN DEFENDANT DID NOT CONSULT WITH LAWYER PRIOR TO ADMINISTRATION OF THE TEST.

The New Jersey Supreme Court in a unanimous decision struck down the use of polygraph test results even when the defendant, prior to being charged in a case, waived his or her right to challenge the use of the test results. In the case before the Court, the waiver was given without the benefit of an attorney advising the defendant. The ruling results in a new trial for a defendant as the trial court judge instructed the jury that polygraph test results could be an indicator that the defendant was not telling the truth.

The New Jersey Supreme Court further emphasized that the use of polygraph test results is also not sanctioned in New Jersey. The fear is that juries will not properly perform their fact finding role during a trial if they are presented with polygraph evidence. According to the Court: “Some studies suggest that the accuracy rate is ‘little better than could be obtained by the toss of a coin’.”

NEW JERSEY LAWYERS REVIEW RECENT DECISION OF NEW JERSEY SUPREME COURT OVERTURNING CONVICTION OF A DEFENDANT TRIED IN ABSENTIA DUE TO DEFENDANT FLEEING COUNTRY BEFORE TRIAL OF THE MATTER IN OCEAN COUNTY, NEW JERSEY.

New Jersey Superior Court Judges typically advise defendants that upon setting of a trial date that the trial will proceed on the date set with our without the actual physical presence of the defendant. If the defendant thereafter chooses not to attend the trial due to absconding from the state or country, any resulting criminal conviction will withstand any later procedural due process claim by the defendant that the conviction violated his or her constitutional rights as a result of his or her not being present during the trial. That assumes, however, that the defendant was properly arraigned on the criminal charges. Absent such procedure, the defendant cannot be deemed to voluntarily waive his right to be present at the trial of the matter.

According to the Court: “The right of a person accused of a crime to be present at his or her trial is among the most fundamental constitutional rights. That proposition, however, presupposes that the defendant has actual notice of the charges against him.”

NEW JERSEY LAWYERS REVIEW RECENT SUPREME COURT OF NEW JERSEY CASE PROVIDING GUIDANCE TO LAW ENFORCEMENT ON THE SEARCH OF A MOTOR VEHICLE UNDER EXIGENT CIRCUMSTANCES AND WITHOUT OBTAINING A WARRANT PRIOR TO EXECUTION OF A SEARCH.

The New Jersey Supreme Court has issued an opinion providing detailed guidance to law enforcement as to what circumstances justify the warrantless search of a motor vehicle under the New Jersey Constitution. As a general matter, the justification for a warrantless search exists to provide safety to law enforcement personnel and to preserve evidence. With those goals in mind, the Court outlined several key factors for a trial court to examine in determining whether the actions of law enforcement were reasonable under the circumstances. Among the factors are: the time of the day, the location of the stop, the nature of the neighborhood where the stop occurs, the events which lead up to probable cause for the stop of the vehicle and events after the initial stop and the ratio of officers to suspects. There are several other important factors listed by the Court as well for the Court to determine if there are sufficient emergency circumstances present to justify a search of the vehicle without any form of a warrant.

… no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation… Every constitution then, and every law, naturally expires at the end of 19 years.

NEW JERSEY LAWYERS PONDER RECENT COURT OF APPEALS DECISION ALLOWING DEFENSE EXPERT IN DRIVING WHILE INTOXICATED TRIAL TO OBSERVE STATE’S TRIAL WITNESSES IN FORMULATION OF EXPERT OPINION.

A recent decision of the New Jersey Superior Court, Appellate Division, clarifies for New Jersey municipal court lawyers the sequestration of expert witnesses during the trial of driving while intoxicated charge. A witness who is subject to sequestration may not be present in the courtroom during the testimony of other witnesses in the case. Whether to order sequestration of witnesses is typically left in the sound discretion of the trial judge. The rule is designed to prevent fact witnesses from structuring their testimony around what they hear from other witnesses who previously testify. In this case before the Court, the defendant called an expert witness not to testify as to the facts surrounding the case but to opine on whether the blood-alcohol measuring device worked properly. The State of New Jersey in a drunk driving prosecution bears the burden of proving that the device was in proper working order and administered properly by a qualified operator. That defendant’s expert will opine on the testing methods and the expert’s courtroom presence was deemed necessary by the Court of Appeals to hear the State’s evidence prior to giving testimony before the municipal court.

NEW JERSEY LAWYERS CONSIDER RECENT NJ SUPREME COURT RULING PROVIDING GUIDANCE TO TRIAL COURTS IN THE DETERMINATION OF A MOTION TO WITHDRAW A PREVIOUSLY ENTERED PLEA OF GUILTY.

New Jersey criminal defense lawyers periodically encountered a situation in which a client wishes to withdraw his or her previously entered plea of guilty before the trial judge sentences the defendant pursuant to the plea agreement. The first level of review is whether the plea was entered according to the constitutional requirement that the plea be entered voluntarily and knowingly which includes a sufficient factual basis for the plea and a full understanding of the charge and the consequences of the plea. Assuming those constitutional requirement are met, the NJ Supreme Court now provides trial judges with a balancing test in deciding whether to allow a defendant to withdraw his or her plea.

The Court held that the following factors must be considered and balanced in evaluating the motion to withdraw a guilty plea: 1) whether the defendant has asserted a colorable claim of innocence; 2) the nature and strength of defendant’s reasons for withdrawal; 3) the existence of a plea bargain; and 4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused. The Court further noted that the trial court should balance all the factors set forth above and the absence of one factor does not immediately result in a grant or a denial of the motion.

A legal decision depends not on the teacher’s age, but on the force of his argument.

NEW JERSEY CRIMINAL DEFENSE LAWYERS PONDER RECENT NJ SUPREME COURT DECISION DEFINING PARAMETERS OF THE REQUIREMENT THAT LAW ENFORCEMENT ADMINISTER MIRANDA WARNINGS DURING CUSTODIAL INTERROGATION.

New Jersey criminal defense lawyers routinely face issues of whether a statement given by a defendant in a criminal case is admissible against that defendant. The issue of whether the Fifth Amendment to the United States Constitution and the New Jersey state law privilege against self-incrimination requires suppression of the statement requires a critical and probing analysis of an attorney.

In the matter before the NJ Supreme Court, the Court declared an initial administration of Miranda warnings prior to custodial interrogation is sufficient to meet the constitutional requirements both under federal and state law even though the questioning by law enforcement of the defendant proceeded from investigatory in nature to accusatory in nature. The Court declined to adopt a mandatory rule that Miranda warnings were required before the questioning turns accusatory. Instead, the Court directed all trial court judges to weight the totality of the circumstances to determine if the defendant knowingly, voluntarily and intelligently waived his or her constitutional rights.

The right to dissent is the only thing that makes life tolerable for a judge of an appellate court.

NEW JERSEY SUPREME COURT CONSIDERS HEARSAY EXCEPTION FOR OUT OF COURT STATEMENTS MADE BY A WITNESS WHO SUFFERED INTIMIDATION AGAINST TESTIFYING AT A TRIAL

The majority of states in the country recognize an exception of the general rule against the admissibility into evidence at trial of out of court statements. The exceptions to the general rule are numerous and New Jersey lawyers may have to contend with the addition of another exception if the New Jersey Supreme Court joins the majority of other states regarding intimated witnesses. The exception, known as the forfeiture-by-wrongdoing doctrine, applies to a defendant in a criminal case in the State of New Jersey who intimidates a witness against testifying before a judge or jury in the trial of the criminal charges. Witnesses who are in fear of injury or death to themselves or family members as a result of the actions of a criminal defendant and are otherwise unavailable to testify are covered by the proposed exception. During oral argument of the case before the Court, a Justice of the New Jersey Supreme Court remarked that even landmark decisions of the United States Supreme Court reference that a defendant gives up rights under the Sixth Amendment to the U.S. Constitution involving right to cross-examine witnesses if the defendant intimidates the witness against testifying at trial.

Some circumstantial evidence is very strong, as when you find a trout in the milk.

Henry David Thoreau, 1817-1862
W.H. Auden and Louis Kroneberger,
The Viking Book of Aphorisms, 1962

NEW JERSEY LAWYERS REVIEW RECENT COURT OF APPEALS DECISION RULING THAT A DEFENDANT IN A CRIMINAL CASE IN NEW JERSEY CAN BE DEEMED COMPETENT TO STAND TRIAL BY THE SUPERIOR COURT JUDGE AND YET NOT COMPETENT TO SERVE AS HIS OR HER OWN ATTORNEY.

Just because a criminal defendant in a New Jersey criminal case is mentally fit to stand trial (or competent) does not automatically equate to the same defendant being able to act as their own counsel (or self-representation). The case arises from Burlington County New Jersey where a defendant sought the right of self-representation to defend himself against accusations of fraud in the purchase of a house and a car. The Burlington County Superior Court Judge gave conditional consent to allow for self-representation by the defendant to allow him to argue pre-trial motions heard before the jury trial. Based upon the defendant’s conduct during pre-trial motions, a psychiatric evaluation concluded that the defendant was competent to stand trial but not competent to represent himself. The New Jersey Court of Appeals upheld that decision based partly upon a recent United States Supreme Court ruling which allows states to limit the right of self-representation when the issue of mental competency prevents a defendant from voluntarily and intelligently being able to waive his right to counsel.

According to the New Jersey court of appeals: “A defendant may be competent to stand trial if represented by counsel, but not have the ability to play a significantly expanded role required for self-representation.”

Proverb, B.J. Whiting and H.W. Whiting,
Proverbs, Sentences and Proverbial Phrases: From English Writings Mainly before 1500

NEW JERSEY FEDERAL CRIMINAL DEFENSE LAWYERS CONSIDER NEAR COMPLETION OF SENTENCE MODIFICATIONS FOR FEDERAL CRIMINAL DEFENDANTS CONVICTED OF DISTRIBUTION OF CRACK COCAINE PARTIALLY ALLEVIATING SENTENCING DISPARITY WITH POWDER COCAINE SENTENCES.

As part of the Anti-Drug Abuse Act of 1986, the penalties for distribution of crack cocaine were significantly higher than for distribution of cocaine in a powder form. The increased penalties were legislated by Congress due to the perception at the time that crack cocaine was more addictive, that usage resulted in more violence in society and that pregnant users did more harm to their unborn children than the powder form of the narcotic. Since that time, many defendants convicted of crack cocaine distribution have received significantly longer sentences compared to those defendants convicted of the same crime involving cocaine powder.

The law had unintended consequences such as reflected in a 2007 report to Congress from the United States Sentencing Commission stating that 81.9 percent of those sentenced on crack cocaine convictions were black in comparison with 27 percent of defendants convicted for powder cocaine. A massive resentencing effort to narrow the disparity is almost complete in New Jersey and around the country. In New Jersey, for example, eligible defendants received a reduction of 18 months on average.

The toughest part of this job is sentencing. I’ve lost all kinds of sleep over sentences. I find it dreadful.

Malcolm Muir, American jurist; judge, U.S. District Court
San Francisco Examiner & Chronicle, March 8, 1981

NEW JERSEY CRIMINAL DEFENSE LAWYERS CONSIDER AN UNPUBLISHED COURT OF APPEALS DECISION HIGHLIGHTING THE NEED FOR TRIAL COURT JUDGES IN THE STATE OF NEW JERSEY TO ENGAGE IN A COMPLETE QUESTION AND ANSWER SESSION WITH ALL DEFENDANTS PRIOR TO ACCEPTING A PLEA OF GUILTY TO A CRIMINAL CHARGE.

Before a Judge in the State of New Jersey can accept a plea of guilty by a defendant in an criminal case, there must a sufficient factual foundation provided by the defendant to support that in fact he or she is guilty of the crime and that the plea is being entered into knowingly, intelligently and voluntarily. These standards are based upon constitutional rights afforded under the due process clause of both the federal and state constitutions.

In the case before the Court, a defendant sought to vacate a prior plea of guilty on the grounds that he had a defense of duress to the criminal charge which he had attempted to explain to the Judge at the time of the plea. The Court of Appeals agreed by stating that the defendant, “was not adequately questioned at the plea hearing with respect to the potential defense of duress” and therefore the Court’s duty to question “should have been exercised more liberally to permit him to withdraw his plea and proceed to trial.”

What we needed was someone who would be temperate but decisive. Someone who would be consistent. Someone who knew enough law and had enough confidence to rule from the bench. We needed the ump of all umps. A square-jawed, rock-ribbed referee with heuvos of steel.

NEW JERSEY WORK INJURY LAWYERS CONSIDER RECENT NEW JERSEY SUPREME COURT RULING DECLARING CANCELLATION OF INSURANCE POLICY VIA E-FILING WITH THE STATE IS NOT EFFECTIVE AND THE POLICY STILL VALID.

New Jersey Department of Banking and Insurance Compensation Rating and Inspection Bureau (CRIB) has for several years permitted insurance carriers providing workers= compensation liability insurance to NJ employers to use a file transfer protocol (FTP) to file with the State notice that a cancellation of coverage has been sent to an insured. The New Jersey Supreme Court, however, agreed with a Judge of Compensation and the Appellate Division that such notice is ineffective. The use of FTP is not a proper substitute for the required certified statement that the statutorily required notice of cancellation to the employer was provided. The written, certified statement is mandated by the statute and is the required procedure according to the NJ Supreme Court. Without providing the required statement, the insurance carrier has not properly cancelled the coverage.

According to the Court: AThe electronic provision of information to the commissioner, without a certification, completely defeats the notion of personal responsibility that the certification provision was intended to secure.

The foundations of justice are that no one shall be harmed, and next that the common weal be served.

William S. Walsh, International Encyclopedia of Prose and Poetical Quotations, 1968

NEW JERSEY CRIMINAL DEFENSE LAWYERS PONDER RECENT COURT OF APPEALS DECISION THAT A JUVENILE DOES NOT HAVE THE RIGHT TO AN ATTORNEY UPON THE FILING OF A JUVENILE COMPLAINT IN THE FAMILY COURTS OF THE STATE OF NEW JERSEY.

Adult criminal defendants have the constitutional right to counsel upon the filing of an indictment formally charging the defendant with a felony offense in the State of New Jersey. If the matter involves a charge of juvenile delinquency, on the other hand, the matter is resolved in the Family Part, Chancery Division of the Superior Court of New Jersey. Adult criminal matters are handled in the Criminal Division of the Superior Court of New Jersey and formal charges require the return of an indictment via a Grand Jury unless the Defendant waives this right as part of an overall resolution of the case.

According to the recent decision, the juvenile process is designed to protect and rehabilitate the juvenile and the process begins with the filing of a complaint in the Family Part. With the exception of a right to indictment, jury trial and bail, the juvenile is given all the rights guaranteed to an adult charged with a crime and even additional protections in the context of a confession. As a result, the recent decision declined to extend the right to counsel to the juvenile upon the filing of a complaint in the Family Part.

Where I come from, grandparents and family members are supposed to take care of neglected children. It’s an obligation, not something you do for a government paycheck,.

Judy Sheindlin, Don’t’ Pee on My Leg and Tell Me It’s Raining, with Josh Getlin, 1996

NEW JERSEY FEDERAL CRIMINAL DEFENSE LAWYERS PONDER RECENT RULING BY DISTRICT JUDGE OF THE UNITED STATES DISTRICT COURT FOR DISTRICT OF NEW JERSEY HOLDING THAT A DEFENDANT CANNOT BE FORCED TO TAKE DRUG THAT MAY MAKE HIM FIT FOR TRIAL IF THE POTENTIAL HEALTH CONSEQUENCES COULD BE HARMFUL.

A Defendant in a bank robbery case before the U.S. District Court for the District of New Jersey cannot be forced to take medication that may make him competent to stand trial if the potential side effects may be harmful to the defendant’s health. The defendant moved before the U.S. District Judge to be granted the right to represent himself. That motion was granted but the defendant’s behavior thereafter suggested a mental defect which impacted his ability to participate in his defense. Due to paranoia and delusional thoughts, the Defendant was in fact declared incompetent to stand trial. The prosecutor then moved, at the recommendation of experts, to have the defendant administered a narcotic that would potentially alleviate some of the mental problems but acknowledged that the defendant was in fact not a danger to himself or others without the medication. Given that no danger existed, the United States Supreme Court had previously held that defendants do have a constitutional right to avoid involuntary administration of anti-psychotic drugs unless the government can meet a series of tests. In the present case, the government did not meet those tests including insufficient evidence that the medication would restore competency and the potential detrimental side effects of the medication.

NEW JERSEY MUNICIPAL COURT LAWYERS PONDER RECENT COURT OF APPEALS DECISION UPHOLDING SIMPLE ASSAULT CONVICTION WHEN TRIAL TRANSCRIPT REVEALED SUFFICIENT EVIDENCE THAT DEFENDANT CAUSED PHYSICAL PAIN ADEQUATE TO CAUSE BODILY INJURY.

Simple Assault, a disorderly persons offense in New Jersey, is committed when a person attempts to cause or purposely, knowingly or recklessly causes bodily injury to another. Bodily injury is defined as physical pain, illness or any impairment of physical condition. In this case before the Court of Appeals, the court decided that physical discomfort, as well as pain, as that word is commonly understood, is adequate in the Municipal Courts of New Jersey to constitute bodily injury for purposes of a guilty finding for simple assault. The credibility of witnesses and other inferences available for other proofs introduced by the State in a prosecution can be evaluated by the Judge in making the required finding of fact. In the case before the Court, the Municipal Court Judge relied upon witness testimony regarding the defendant’s conduct and she concluded that the conduct was sufficient to cause physical pain. There was no testimony from the complaining witness what he felt during the course of the defendant’s conduct or evidence of physical injury. Nevertheless, the testimony as a whole rendered a reasonable inference by the Judge that the complaining witness suffered physical pain.

The mere advocate, however brilliant, will lose the most cases, though he may win the most verdicts.

B.F. Butler, American general and politician, Autobiography and Personal Reminiscences, 1892

NEW JERSEY LAWYERS CONSIDER RECENT COURT OF APPEALS DECISION EXPANDING NJ SUPREME COURT AND US SUPREME COURT RULING UPHOLDING CONSTITUTIONALITY OF STUDENT SEARCHES ON SCHOOL PROPERTY BY SCHOOL ADMINISTRATORS UPON THRESHOLD SHOWING OF REASONABLE SUSPICION

Most search and seizure issues turn on the issue of whether the government had probable cause of the existence of criminal activity in the place or person to be searched prior to conducting the search. In the case of a school environment, however, the New Jersey Supreme Court and the United States Supreme Court back in early eighties announced that a standard lower than probable cause applied for students thought to be engaged in a violation of the laws of the State of New Jersey or the rules of the school. That lower standard is reasonable suspicion and provides that school officials may conduct a search without probable cause and without a warrant. The school is deemed an environment where discipline and a safety overrides the privacy interests of the student. In applying the reasonable suspicion standard, a reviewing court will examine the “reasonableness” of the search including all the circumstances surrounding the search according to the dictates of reason and common sense.

In this recent case, the Court expanded the reasonable suspicion standard to include student vehicles parked on school property on the same basis used to justify searches of students and their possessions on school property. Students, moreover, do not have any increased expectation of privacy in vehicles parked on school premises than other secured areas such as school lockers which are subject to search under the reasonable suspicion standard.

Elizabeth Hoby Russell, English diarist and courtier, Spoken to King James I, 1603

NEW JERSEY LAWYERS CONSIDER RECENT CASE EXPANDING BAN ON DWI PLEA BARGAINING BEYOND THE MUNICIPAL COURTS AND TO THE SUPERIOR COURTS OF NEW JERSEY

New Jersey lawyers practicing before the Municipal Courts of the state are well aware of the prohibition on plea bargaining in drunk driving cases that are properly venued in one of the many Municipal Courts. The case before the Superior Court of New Jersey involved an appeal from the denial of a suppression motion in the West Windsor Municipal Court. The appeal from the denial was scheduled to be heard before the Mercer County Superior Court of New Jersey but the state prosecutor and defense counsel sought to resolve the matter by way of negotiated plea to the charge of reckless driving with a dismissal of the drunk driving charge.

The Superior Court Judge would not allow the plea bargain. “Although the plan language of the Plea Agreement Guidelines refers only to municipal courts, this court finds no policy basis to permit plea agreements in Superior Court that are expressly banned in municipal court,” wrote the Judge in deciding the matter.

“The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”

Oliver Wendell Holmes, Jr., “Path of the Law”, 10 Harvard Law Review, 457, 461 (1897).

NEW JERSEY MUNICIPAL COURT LAWYERS CONSIDER APPLICATION OF RECENT NJ COURT OF APPEALS DECISION PROVIDING FOR POINTS ON A NEW JERSEY DRIVER’S LICENSE FOR REPEATED VIOLATIONS OF THE UNSAFE DRIVING LAW.

New Jersey lawyers frequently attempt to negotiate point generating traffic violations to no-point violations of the state unsafe driving law. Drivers can receive two convictions for unsafe driving without receiving points against their license. But, the statute requires points on the third offense unless five years have passed since the last unsafe driving conviction. In a recent case, the Court of Appeals specifically rejected any argument that the five year gap can apply between the new offense and any previous conviction for unsafe driving.

The Court of Appeals took a literal reading of the statutory law and applied it under the circumstances of the case. The court noted that the law does “not state that relief from the assessment is available when a five-year gap occurs between a new offense and any prior offense,” wrote the court in the opinion. Unsafe driving, as being a permissible statutory downgrade for a speeding ticket in the State of New Jersey, is an important alternative for drivers otherwise faced with points and consequently higher insurance premiums for convictions of speeding and other point carrying traffic offenses.

NEW JERSEY LAWYERS APPLY RECENT REVISION TO NEW JERSEY MUNICIPAL COURT LAW PROVIDING THAT LICENSE SUSPENSION IS NOT MANDATORY IF A DEFENDANT IS FOUND GUILTY OF DRUG POSSESSION AND APPLIES FOR A CONDITIONAL DISCHARGE OF THAT CHARGE.

New Jersey recently enacted a law, effective September 10, 2008, which allows a New Jersey Municipal Court Judge to not suspend the driving privileges of a defendant who is convicted a disorderly or petty disorderly persons offense concerning a controlled dangerous substance or drug paraphernalia and thereafter applies for a conditional discharge. The new law provides for a compelling circumstances exception to the otherwise mandatory driver’s license suspension under the conditional discharge law. The new law provides that compelling circumstances exist if the suspension of the defendant’s driving privileges would result in extreme hardship and alternative means of transportation are simply not available to the particular defendant before the Court.

Previously in New Jersey Municipal Courts, the Court did not have discretion on whether to suspend the license of the defendant between 6 months to two years on defendants who, although admitted into the Conditional Discharge program, nevertheless were found guilty or pled guilty to the offense.

Just because we cannot see clearly the end of the road, that is no reason for not setting out on the essential journey. On the contrary, great change dominates the world, and unless we move with change we will become its victims.

Robert F. Kennedy, Farewell Statement, Warsaw, Poland, reported in the New York Times July 2, 1964.

NEW JERSEY LAWYERS CONSIDER RECENT NJ COURT OF APPEALS DECISION ALLOWING NJ CRIMINAL DEFENSE LAWYERS TO REVIEW PROSECUTOR’S FILE FOR EVIDENCE OF RACISM IN RETRIAL OF FORMER NBA STAR JAYSON WILLIAMS.

Former New Jersey Nets star Jayson Williams is facing a retrial for the charge of reckless manslaughter in the fatal shooting of his limousine driver. Before the retrial, however, his attorneys can review the prosecutor’s file for evidence of a racial slur uttered by an investigator for the prosecution. The defense may be able to argue, based in part on the racial slur, that the decision to file charges in the matter were in fact motivated by racial issues.

The State of NJ argued that the issue was not relevant to the trial as the investigator in question did not testify at the first trial and would not testify at the second trial. The Court of Appeals, in rejecting that argument, stated: “While the ‘superior officer’ may not testify, defendant is entitled to the information to conduct his own investigation into whether racial bias was systemic or merely confined to the ‘superior officer’.” The Court may clear that racial bias has no place in any law enforcement investigation occurring in the State of New Jersey.

NEW JERSEY LAWYERS PONDER RECENT NJ SUPREME COURT CASE DEFINING THE CONSTITUTIONAL LIMITATIONS ON A GRAND SUBPOENA TO OBTAIN AN INDIVIDUAL’S BANK RECORDS.

The New Jersey Constitution prevents unreasonable search and seizures by the government if the accused has standing to object and a reasonable expectation of privacy in the subject matter of the search and seizure. An individual has a reasonable expectation of privacy regarding bank records under the NJ Constitution. According to the NJ Supreme Court, the use of a grand jury subpoena to obtain bank records of an individual provides protection against excessive government conduct during the course of a criminal investigation.

The State constitutional requirements are satisfied if the grand jury subpoena (duces tecum if for bank records and other records) is relevant to the subject matter of the grand jury investigation. Relevancy is not a high standard for the government to meet. Indeed, the NJ Supreme Court reflected that the grand jury may investigate “an anonymous charge. So, also, a rumor. Indeed, it may be urgent that a rumor be pursued, to relieve the public of the evil if the rumor is true and the burden of the rumor if it is false.” As such, there is no probable cause standard applicable to the issuance of the grand jury subpoena and notice to the account holder is not required before the bank complies with the demand for documents.

A trial is a minefield, and any judicial misstep- or even a perceived misstep- can lead to a reversal of the verdict, with no consideration of whether the defendant is guilty or not.

NEW JERSEY LAWYERS CONSIDER NEW DIRECTIVE FROM NEW JERSEY ATTORNEY GENERAL BANNING ALL PLEA BARGAINS WITH PROVISIONAL DRIVERS WHO ARE CHARGED WITH DRIVING OFFENSES.

New Jersey Attorney General Anne Milgram recently announced the issuance of a Directive to the municipal court prosecutors throughout the State prohibiting them from offering plea bargains to provisional drivers- typically teenage drivers in the state. Hearings sponsored by NJ Governor Jon Corzine’s Teen Driving Study Commission were held throughout the state recently wherein teenagers frequently remarked that they were comfortable flaunting the driving laws of the State due to the perceived minor consequences upon conviction. The Commission concluded that the provisional status classification ineffective if teenage drivers can enter into plea bargains including downgraded charges carrying no points against the driver’s license.

The directive from Attorney General Milgram states that because provisional drivers hold licenses on a probationary basis, “it is entirely appropriate that they be held strictly accountable for all motor vehicle violations.” However, it is equally important to note that the directive does not limit a prosecutor’s discretion to dismiss charges that the State of New Jersey cannot prove beyond a reasonable doubt.

Other recommendations of the Commission included an 11:00 pm curfew for provisional drivers and a limit of one teenage passenger driving in the car with a provisional driver.

All adults stand accused…the society responsible for the welfare of children has been put on trial. There is something apocalyptic about this startling accusation; it is mysterious and terrible like the voice of the Last Judgment: “What have you done to the children I entrusted to you?”

NEW JERSEY LAWYERS CONSIDER NEW JERSEY COURT OF APPEALS DECISION HOLDING THAT EMPLOYEE HAS NO REASONABLE EXPECTATION OF PRIVACY IN INFORMATION ON A WORK COMPUTER OWNED BY HIS OR HER EMPLOYER.

New Jersey lawyers practicing criminal defense often must consider whether the government has complied with the constitutional requirement of reasonable search and seizure. Typically, however, a defendant needs standing to assert an objection to the means and methods employed by the government to search and seize evidence that is later used against the defendant to prove guilt. Standing typically requires, among other requirements, that the defendant have a reasonable expectation of privacy that society is willing to recognize in the place or thing subject to the search and seizure.

The New Jersey Court of Appeals addressed for the first time whether a defendant has standing to object to the seizure of information contained in personal files that are stored in company owned computers. The Court declined to find a reasonable expectation of privacy noting that: “neither the law nor society recognize as legitimate defendant’s subjective expectation of privacy in a workplace computer he used to commit a crime,” The Court looked to other cases decided by federal courts outside of New Jersey holding that employees have no reasonable expectation of privacy when using computers linked to company networks.

…trials by the adversary contest must in time go the way of the ancient trial by battle and blood.

NEW JERSEY LAWYERS REFLECT ON RECENT COURT OF APPEALS DECISION LIMITING THE PROTECTIONS OF THE CLERIC-PENITENT COMMUNICATION WHEN THE CLERIC IS NOT ACTING IN THE CAPACITY OF A SPIRITUAL ADVISOR.

New Jersey lawyers practicing in the area of criminal defense in the federal and state courts of NJ review a decision of the NJ Superior Court, Appellate Division, limiting the application of the cleric-penitent privilege under the facts presented in the case. New Jersey Rule of Evidence 511 sets forth the parameters of the privilege which, if the conditions set forth are met, provides for exclusion from evidence against an accused any statements made by the accused to a cleric.

In the case before the Court, the cleric was given information regarding potential child abuse by a father (penitent) of two girls. The cleric contacted the penitent and told him not to go back to his home. The cleric and the penitent met and admissions from the penitent were forthcoming along with a request for counseling which the cleric refused. More admissions followed from the penitent along with a request of the cleric to perform the sacrament of baptism. The cleric refused.

In the context of this case, the Court found that the admissions were not protected as the cleric was not acting in the capacity of a spiritual advisor.

Labor to keep alive in your breast that little spark of celestial fire, called Conscience.

NEW JERSEY LAWYERS CONSIDER RECENT COURT OF APPEALS DECISION EXTENDING DUE PROCESS HEARINGS ON THE ISSUE OF UNDUE INFLUENCE IN THE CASE OF PRIVATE INDIVIDUALS WHO MAY HAVE SUGGESTED THE IDENTITY OF THE PERPETRATOR TO THE WITNESS.

New Jersey law enforcement personnel must follow fairly strict procedural guidelines in the area of pre-trial identification by a witness of an alleged perpetrator of a crime. Any suggestiveness in the procedure whereby law enforcement suggests the identity of the suspect believed to be the perpetrator must be the subject of a pre-trial hearing. New Jersey criminal defense lawyers know, at the hearing, the trial court judge must decide if the suggestive conduct of law enforcement tainted the identification of the witness thereby making the identification unreliable and not admissible as evidence in front of a jury.

A recent New Jersey Court of Appeals decision held that the hearing should be extended to review issues of taint even if the source of the taint is not law enforcement but a private citizen. As the Court decision states: “Even when law enforcement agents are not involved, evidence that an identification was made under highly suggestive circumstances that pose a significant risk of misidentification calls the reliability of the initial and subsequent identification into question.”

Or Whether Laws be wrong;
All that ewe know who lie in gaol
Is that the wall is strong;
And that each day is like a year,
A year whose days are long.

NEW JERSEY LAWYERS PONDER RECENT TRIAL LEVEL DECISION OF THE NEW JERSEY SUPERIOR COURT HOLDING THAT UNCOUNSELED PRIOR CONVICTIONS THAT VIOLATE CONSTITUTIONAL REQUIREMENTS CANNOT BE USED AS BASIS TO ENHANCE PENALTIES OF SUBSEQUENT CONVICTIONS.

A Judge of the Superior Court of New Jersey, Trial Division in Burlington County recently held that a defendant cannot be subjected to additional enhanced penalties for an offense on the basis of an earlier offense that violated the constitutional requirements regarding uncounseled prior convictions. A conviction for a charge that carries “consequences of magnitude” requires, before the court takes a plea or conducts a trial, that the Court inform the defendant of the right to counsel and, if the defendant cannot otherwise afford an attorney, the right to have the appointment of an attorney to the defendant without cost. New Jersey lawyers practicing in the area frequently examine the facts and circumstances of the conviction to determine if the Municipal Court in the State of New Jersey violated that requirement.

If a violation is found to exist, the New Jersey Supreme Court has held that the prior conviction cannot serve as a basis to increase a period of incarceration resulting from a conviction on a subsequent offense. The NJ Supreme Court relied upon an earlier decision of the U.S. Supreme Court holding that an invalid waiver of counsel resulting in a conviction cannot be used for the purpose of increasing a defendant’s loss of liberty. In the case before the Superior Court, Burlington County, the trial court Judge ruled that an enhanced period of incarceration for a person driving on the revoked list resulting from a prior uncounseled DWI charge is not constitutionally permissible.

…we have never been a tightly disciplined people and, reflecting this, our legal structure has been more relaxed than that of many other societies. If this has negative aspects, it also gives us a resiliency to tide us over and enable us to meet any crisis as it arises. We will respond slowly, but that is the nature of a democratic society.

Warren E. Burger, Speech, American Law Institute, Washington, D.C., May 19, 1970

NEW JERSEY LAWYERS PONDER UPCOMING DECISION BY UNITED STATES SUPREME COURT ON THE APPLICATION OF THE CONFRONTATION CLAUSE TO LAB REPORTS USED TO PROVE AN ESSENTIAL ELEMENT OF THE CASE AGAINST THE ACCUSED.

The right of the accused to confront witnesses against him or her is an essential right under the United States Constitution. In short, if the government is going to introduce evidence against the accused, the accused has the right via cross examination to convince the fact finder that the evidence is not credible. Throughout history, the accused often did not have the right to cross examination in many judicial systems or, if the right existed, the accused himself or herself could cross exam the witness only and not through an attorney. The limitation of the only the accused conducting cross examination provided extreme disadavantages to the accused as cross examination is a skill learned only through diligent effort- a skill that an accused could not be expected to master especially in the context of a trial wherein the personal liberty of the accused hung in the balance.

New Jersey lawyers practicing criminal defense are aware that, upon proper notice, it is often possible to require a forensic expert to testify in person at the trial. The United States Supreme Court will now take up the issue of whether the accused has a constitutional right to cross examine a lab technician who tested evidence in a case. The case presents an opportunity for the Court to expand upon the decision of an earlier case. In the earlier case, the Court held that evidence created with anticipation of possible use at a later criminal trial cannot be introduced by the government unless the source of the evidence is available for cross examination.

Once conform, once do what other people do because they do it, and a lethargy steals over all the finer nerves and faculties of the soul.

NEW JERSEY CRIMINAL DEFENSE LAWYERS PONDER RECENT NJ SUPREME COURT DECISION HOLDING THAT THE STATE PROSTITUTION STATUTE FOR THE PUNISHMENT OF REPEAT OFFENDERS IS UNCONSTITUTIONALLY VAGUE

In a case in which the defendant represented herself without an attorney before the highest Court of the state, an indictment for prostitution was dismissed by the Court in which the enhanced penalty relied upon in the charging document was a prior petty disorderly persons offense. NJ Lawyers who practice criminal defense know that the state statute allows for an enhanced penalty (ie. felony conviction) for repeat offenders of the prostitution laws. The issue before the Court involved a defendant previously convicted of a petty disorderly persons offense under the prior prostitution laws of New Jersey. The NJ Supreme Court held that the prior petty disorderly persons offense could not be used as a basis to penalize a defendant as a repeat offender under the current law.

The Court examined the plain language of the statute which was found to be ambiguous and then reviewed the legislative history behind the enactment of the law which likewise did not provide any guidance for the Court. The Court then invoked the doctrine of lenity to rule in favor of the defendant and dismiss the indictment. Lenity allows for a ruling in favor of the defendant if there is more than one reasonable interpretation of an existing law.

…I, as a lawyer, believe that some significant part of my money, time, thought, and energy belongs- I don’t give it, it belongs- to others, not just to me.

NEW JERSEY LAWYERS REVIEW NJ SUPREME COURT REVERSAL OF CRIMINAL CONVICTION BECAUSE TRIAL COURT JUDGE QUESTIONING OF DEFENDANT WHO TESTIFIED IN HIS OWN DEFENSE.

Criminal trial judges in the county level Courts of New Jersey- the Superior Court of New Jersey, Trial Division- have to remain impartial throughout the course of a jury trial to avoid giving the jurors any impression of favoritism of either the defense or the prosecution.

A recent case before the Supreme Court held that a trial court judge crossed the line by intensely questioning a criminal defendant who took the stand to testify in front of the jury in his own defense. The defendant was on trial for posting sexually inflammatory material about his sister on the internet with whom the defendant was engaged in a contentious probate dispute. The material was traced to the defendant’s home computer. The defendant contended at trial that other people with access to his computer placed the material on the internet and not him. The Judge’s intense questioning of the defendant had the impact of having the jurors’ question whether the court doubted defendant’s account of the incident in a case where the defendant’s credibility was a key issue.

As the Supreme Court noted: “In exercising their discretionary power, judges must take care not to influence the jury by signaling doubt about a witness’s credibility. Further, “To do otherwise might place the court’s impartiality in question and affect the trial’s outcome. In this case, the trial judge’s questioning of a criminal defendant ran counter to the above principles.”

You should be a light to jurors to open their eyes, but not a guide to lead them by their noses.

NEW JERSEY SUPREME COURT DECIDES KEY CASE FOR NEW JERSEY LAWYERS PRACTICING IN MUNICIPAL COURTS THROUGHOUT THE STATE OF NEW JERSEY REGARDING ADMISSIBILITY OF DOCUMENTS IN A DRUNK DRIVING PROSECUTION.

New Jersey has unveiled the Alcotest as the new device for testing of blood alcohol concentration of suspected drunk drivers in NJ. The Alcotest has been determined scientifically reliable by the NJ Supreme Court. In a related case, the Court also decided that documents relating to the State’s previous device, the Breathalzyer, are admissible in a drunk driving case under the business-records exception to the hearsay rule. As such, the records are not testimonial and there is no right to cross examine the author of the record. In a similar case with the Alcotest, the testing and certification records for this new device are also not testimonial and the admission of the record without cross examination does not violate the Sixth Amendment. The purpose of creating the records, according to the Court, is to demonstrate the proper functioning of the machine and not for purposes of proving the offense.

According to the Court: “We discern no meaningful distinction between the foundational documents required for the admission of Breathalyzer blood alcohol test results and those we recently approved in Chun in respect of Alcotest blood alcohol test results,”

The layman’s Constitutional view is that what he likes is Constitutional and that which he doesn’t like is unconstitutional. That about measures up to the Constitutional acumen of the average person.

NEW JERSEY MUNICIPAL COURT LAWYERS PONDER CHANGE IN MOTOR VEHICLE COMMISSION POLICY PROVIDING FOR ASSESSMENT OF POINTS FOR TRAFFIC OFFENSES MERGED BY A MUNICIPAL COURT JUDGE DURING SENTENCING.

Municipal Court Judges in the State of New Jersey in some instances would merge less serious traffic violations into a conviction for a more serious traffic violation occurring on the roads of NJ. Before a recent change by the Motor Vehicle Commission (MVC), the convicted driver would not have to face additional points for the merged offense. Now, however, the MVC of New Jersey will count merged offenses as separate convictions and thereby allow additional points to be added to the driver’s license. The result can increase the likelihood of license suspension based upon the total number of points accumulated as well as additional surcharges from the MVC. The merged charges will also show up as charges on the driver’s abstract. The MVC cites the need for an accurate reflection of driver history in the driver’s abstract as the reason behind the change of policy.

There exists case law in New Jersey which allows for the merger of a penalty but not the violation. As such, as one case pointed out: “”It is inappropriate to order merger of one charged offense to which no plea of guilty has been entered with another in respect of which a guilty plea has been entered.”

NEW JERSEY WORK INJURY LAWYERS PONDER RECENT NJ COURT OF APPEALS DECISION THAT THE HIGHER RECOVERY LIMITS OF A 2004 REVISION TO THE WORKERS COMPENSATION DEATH BENEFIT IS NOT RETROACTIVE BEFORE 2004.

On January 14, 2004, an amendment to the New Jersey Workers Compensation Act became effective. The amendment provided that death benefits under the statute were to be paid at a standard rate of 70 percent of gross wages no matter how many dependents survived the fatally injured worker. That change typically resulted in an increase of benefits payable to dependents from the old law which used a sliding scale ranging from 50 percent to 70 percent of gross wage based upon the number of surviving dependents.

In an interpretation of the amendment, the Court of Appeals decided that the legislature did not intend to make the increased benefits apply retroactively (ie. before the effective date of the amendment- January 14, 2004). In reviewing legislative history and other relevant resources, the Court found no mention of a possible retroactive application of the amendment. A phrase in the amendment that the law “shall take effect immediately” was interpreted by the Court to mean that the rights of the worker accrue on the date of death. If death occurred prior to the effective date, the right accruing did not include the increased benefits.

Considering a retroactive application, the Court reflected that: “In the absence of an unambiguous directive that the Legislature so intended, we cannot conclude that the amendment was expected to be applied in such an expansive fashion.”

NEW JERSEY LAWYERS REVIEW INTERNET BASED JUROR NOTIFICATION SYSTEM INTRODUCED STATEWIDE FOR CONVENIENCE AND INFORMATION OF POTENTIAL MEMBERS OF CRIMINAL AND CIVIL JURIES.

New Jersey lawyers in the past would often hear of the inconvenience many members of the public felt when called for jury duty in their county of residence in New Jersey only to be informed that their service was not required when they arrived at the courthouse jury assembly room. A telephone message system in place in New Jersey since the 1980’s has allowed jurors to call the night before their expected date of service to learn if they are in fact expected to appear. Now, the internet will facilitate the process as well by having each county jury manager post information regarding the necessity of an appearance for a potential juror between 4 p.m. and 5 p.m the day before the scheduled date.

NJ lawyers are already aware that civil jury trials are decreasing throughout the state. As such, even those potential jury members who are in fact notified to appear may be sent home without experiencing any courtroom activity. The internet based system, however, provides one more step toward being responsive to those members of the public who are willing to give their time and service for the effective running of our court system both on the state and federal level. The jury system is one of the foundations of our society. The burden placed on those who do serve on a jury can be extreme given the length of the some trials (especially criminal jury trials) and the responsibilities of their everyday lives which may have to be placed on temporary hold while serving on a jury.

I confess that in my experience I have not found juries specially inspired for the discovery of the truth…they will introduce into their verdicts a certain amount- a very large amount, so far as I have observed- of popular prejudice, and thus keep the administration of the law in accord with the wishes and feelings of the community.

NEW JERSEY WORK INJURY LAWYERS CONSIDER APPLICATION OF RECREATIONAL ACTIVITY DEFENSE TO ATTEMPTS BY EMPLOYERS TO DENY WORKERS COMPENSATION BENEFITS TO WORK ACCIDENT VICTIMS.

The general rule for work accident lawyers in New Jersey is that an employee engaged in a recreational activity not compelled by the employer which provides no benefit to the employer other than improvement in employee morale is not entitled to benefits under the New Jersey Workers Compensation law. Each case scenario is different and requires detailed analysis prior to making any determination regarding the application of benefits.

A potential exception to the general rule as discussed in some recent cases on the topic involves the use of compulsion by the employer to secure the injured employees participation in the event. Recent case law has emphasized that if employer compulsion exists for participation in an event that leads to an injury, the injured employee may be entitled to benefits under NJ Workers Compensation law. Hence, for example, compulsion may be found in the situation where a supervisor insists that the employee engage in the recreational activity or encourages beyond a mere invitation. If compulsion is found, benefits for the injured worker may follow.

Legal Quote of the Week:

I long have said there is no such thing as a hard case. I am frightened weekly but always when you walk up to the lion and lay hold the hide comes off and the same old donkey of a question of law is underneath.

Oliver Wendell Holmes, 1841-1935
Mark DeWolfe Howe, Holmes-Pollock Letters, 1946

NEW JERSEY WORK INJURY LAWYERS CONSIDER POTENTIAL DENIAL OF NJ WORKERS COMPENSATION BENEFITS ON THE BASIS OF SO-CALLED INTENTIONAL ACTS OF THE EMPLOYEE RESULTING IN THE INFLICTION OF THE INJURY.

New Jersey lawyers handling work accident cases have to consider whether the injury suffered by the work injury client is compensable under the Workers Compensation laws of the State of New Jersey. One issue that can arise is whether the injury is as a consequence of an intentional act of the employee which directly results in the injury complained of by the employee. One of the provisions of the NJ work accident law is that if the employee engages in an activity which intentionally injuries himself or herself or if the activity is substantially certain to result in injury to the employee, the injured worker is not entitled to benefits.

Previous cases by the Courts in New Jersey have resulted in the denial of benefits to an employee playing Russian roulette with a revolver while in an armored bank vehicle in which the gun discharged and injured the worker. Another case decided by the NJ Courts involved an employee enraged by his supervisors criticism to the point where he smashed his fist into an electrical box and consequently breaking bones in his hand was likewise denied benefits under the same doctrine. While the facts of each case present a different potential outcome, a potential injury can provide an employer with a successful defense to the claim of workers compensation benefits in New Jersey.

While the people retain their virtue and vigilance, no administration, by any extreme of wickedness or folly, can very seriously injure the government in the short span of four years.

NEW JERSEY WORK INJURY LAWYERS REVIEW RECENT DECISION HOLDING THAT PETITIONER FAILED TO ESTABLISH A CONNECTION BETWEEN THE WORK ENVIRONMENT AND THE ALLEGED CANCER RESULTING FROM EXPOSURE IN THE WORK ENVIRONMENT AS AN OCCUPATIONAL HAZARD ALLOWING FOR THE AWARD OF WORKERS COMPENSATION BENEFITS.

If the Petitioner in a workers compensation case in New Jersey alleges that an occupational exposure (as opposed to a traumatic injury) caused a workplace injury, the Petitioner has the burden of establishing the casual connection between the workplace environment and the injury before the Judge of Compensation An award of benefits under the Workers Compensation statute requires the Judge to find the casual connection based upon the Petitioner’s proofs. In a recent case before a Judge of Compensation in New Jersey, the Judge failed to find such a connection between the Petitioner’s cancer and the work environment finding that Petitioner failed to prove the work environment was a substantial contributing cause or aggravation of the cancer.

The work environment in the case before the Judge of Compensation involved a worker exposed to asbestos but the Petitioner rarely had the opportunity to enter the area of the building containing that hazardous substance. An expert on behalf of the Petitioner testified but the Judge of Compensation failed to find the basis of the opinion to be persuasive given the other evidence produced during the trial.

NEW JERSEY LAWYERS WHO PRACTICE BEFORE CITIZEN JURIES IN THE STATE AND FEDERAL COURTS TAKE NOTE OF SOUTH KOREA AND THE RECENT ADOPTION OF A MODIFIED JURY SYSTEM.

South Korea is a country without a heritage of jury trials. Recently, however, the country adopted a modified version of the American model of jury trials in cases where the government is alleging a violation of the criminal code. The general societal acceptance of ordinary citizens partaking in the judicial decision making process will be determined at a later date. The “runaway jury” concept frequently cited in New Jersey and throughout the United States by detractors of the jury trial system has yet to factor into the South Korea model given the limited experience with jury trials to date.

There are key differences, however, between the American model of jury system and the model now in place in South Korea. New Jersey lawyers practicing before juries are aware of the distinct fact finding role of the jury and that, in criminal cases, the sentence of the accused if found guilty is left to the discretion of the Superior Court of New Jersey Judge or the United States District Court Judge and that the decision of the jury regarding guilt or innocence must be unanimous. Only in the most extraordinary circumstances will a Judge overrule the factual determination of a jury. In South Korea, a jury verdict remains non-binding on the Court and are based upon majority vote only.

Regardless of the model, the jury trial remains the hallmark of any democratic society with the benefit of ordinary citizens playing a vital role in the outcome of extremely important matters to the parties and to the society as a whole.

Gentlemen, a court is no better than each man of you sitting before me on this jury. A court is only as sound as its jury, and a jury is only as sound as the men who make it up.

NEW JERSEY LAWYERS CONSIDER RECENT NJ COURT OF APPEALS DECISION UPHOLDING CONSTITUTIONAL REQUIREMENT THAT A SEARCH WARRANT MUST BE BASED UPON DECISION OF THE JUDGE AND NOT THE OBSERVATIONS OF NEW JERSEY LAW ENFORCEMENT.

The Superior Court of New Jersey, Appellate Division, issued a ruling recently requiring the issuance of a search warrant be based upon facts and circumstances known to the Judge issuing the warrant at the time of signing the warrant. In the case, a Judge issued a search warrant for a multiple unit apartment complex but was not informed of the exact apartment sought to be searched for alleged criminal conduct by the occupants of the apartment. Instead of requiring the police to obtain the information and return to inform the Court of the exact location to be searched, the Judge instead issued the warrant on the condition that it not be executed until the additional information was obtained by the police. The Court concluded that the constitutional requirement that warrants be issued by a “neutral and detached magistrate” was violated due to the discretion vested in New Jersey law enforcement to determine the place to be searched.

The Court of Appeals also examined the description of the place to be searched as contained in the warrant and also found that aspect of the warrant to be constitutionally deficient. The warrant authorized the police to search whichever apartment was “controlled” or “possessed” by a particular person but did not have a particular description of the place to be searched contained within the warrant.

Justice delayed is not only justice denied- it is also justice circumvented, justice mocked and the system of justice undermined.

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 by agreement between the government and the accused.

Respectfully submitted,
JFR

March 12, 2007

NEW JERSEY LAWYERS CONSIDER RECENT STATUTE PASSED BY N.J. LEGISLATURE ALLOWING PROSECUTORS TO DISCOVER SOURCE OF BAIL MONEY USED IN FIRST AND SECOND DEGREE FELONY CHARGES

As of June 1, 2007, New Jersey prosecutors will have a new tool at their disposal to inquiry whether the source of funds used for bail purposes in first and second degree felony cases are derived from illegal sources. As part of the process to post bail, a defendant will have to reveal at least the following information: the employment history of the defendant, names of the individuals who contributed money or pledged security for a bond (including how much contributed and when) and their relationship to the defendant. The Defendant must provide the information as part of the bail process. If requested under the new law, the prosecutor can request a judge inquiry of the Defendant and a New Jersey Superior Court Judge would have to hold a hearing to obtain the information if the charge pertains to a first or second degree felony (ie. bail restricted offenses). During the hearing, the Judge has great latitude to ensure that “the reliability of the source of the funds used to post bail or security offered, that the relationship of the obligor or person posting cash bail is sufficient to ensure the defendant’s presence in court when required, and that the funds used to post cash bail or secure a bail bond were not acquired as a result of criminal or unlawful conduct.”

According to the Administrative Office of the Courts, the new law could cost the taxpayers of New Jersey an additional $500,000.00 to as much as 4.5 million a year due to the new disclosure requirements and the additional judicial staff required to process the applications by the prosecutor to hold these hearings.

Respectfully submitted:
JFR

Legal Quote of the Week:

That no man of what estate or condition, shall be put out of land or tenement, nor taken nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of law.

Statute of Westminister, c. 13^th Century

March 5, 2007

NEW JERSEY LAWYERS HANDLING A CASE INVOLVING IDENTIFICATION TESTIMONY CONSIDER RECENT CASE REQUIRING A MORE DETAILED JURY CHARGE ON THE ISSUE OF SUGGESTIVENESS OF THE IDENTIFICATION PROCEDURE IN LIGHT OF THE WEAKNESS IN THE TESTIMONY.

Out of court identification can be the result of an unduly suggestive process whereby the following testimony is not reliable. Considering the totality of the circumstances, a recent Appellate Division held that the jury charge must provide details to the jury explaining the issue of suggestiveness regarding the identification. Before admission into evidence, eyewitness identification must be analyzed as follows: First, an examination of the identification procedure was unduly suggestive is required. The facts surrounding the identification are determinative including whether the witness was told by law enforcement who the suspect was during the procedure. A suppression order may be granted if the procedure resulted in a substantial likelihood of misidentification. Second, reliability of the identification is also judged by the facts surrounding the specific identification separate and apart from the procedures used. That is, among other factors, whether the witness had ample opportunity to view the accused at the time of crime and the accuracy of any prior descriptions. An identification may be reliable in spite of the tainted procedures used if the second prong is satisfied.

A more detailed jury charge, however, would certainly allow the jury to better assess the credibility of the testimony including a charge regarding the use of proper procedures designed to elicit a reliable identification. Those procedures may include whether the police suggested to the witness that they had a suspect when the witness was asked to view photos of potential culprits and whether or not the photos viewed contain a photo of that person suspected of the offense.

Respectfully Submitted,
JFR

Legal Quote of the Week:

If truth and justice were the rule, there would be no need for mercy.

Mendele Mocher Sforim, Di Kliatche, 1873

February 26, 2007

NEW JERSEY LAWYERS RECEIVE THE REPORT OF THE NEW JERSEY SUPREME COURT SPECIAL MASTER EVALUATING THE SCIENTIFIC RELIABILITY OF THE ALCOTEST AS THE NEW DRUNK DRIVING TESTING DEVICE FOR USE THROUGHOUT THE STATE OF NEW JERSEY

The case of State of New Jersey v. Chun is reaching a conclusion with the much anticipated report of Judge King, P.J.A.D. (retired) being released recently with the finding that the Alcotest represents technology that is generally scientifically reliable for determining the blood-alcohol concentration in New Jersey. The Supreme Court of NJ must now consider the matter and will hold oral argument on the case within the next several weeks. Numerous New Jersey lawyers have devoted countless time and resources to the defense of the matter and their efforts are a tribute to the profession in NJ.

Judge King concluded the report with the following: “We are convinced that the Alcotest 7110 is the state-of-the-art technology available and if implemented with other suggestions will provide suspects and the general public the best possible assurance for the protection of individual rights and for public safety.” In essence, Judge King gave a judicial green light for the use of the machine with some of the suggestions listed as follows: 1) use of a breath temperature sensor by the State of New Jersey with a downward adjustment of 6.58% to all readings on blood-alcohol concentration until the sensor is in use; 2) communication of data obtained from Alcotest units to a central database on a periodic basis; and 3) minimum air sample of 1.2 liters for women over the age of 60 and a general 1.5 liters of air requirement for the remainder of the population.

The New Jersey Supreme Court can use the report recommendations or make new ones based upon the evidence adduced at the hearing.

Respectfully Submitted,
JFR

Legal Quote of the Week:

Crime takes but a moment but justice an eternity.

Ellen O’Grady, Djuna Barnes, “Woman Police Deputy Is Writer of Poetry,” New York Sun Magazine, 1918

February 19, 2007

NEW JERSEY LAWYERS PRACTICING THE FIELD OF FEDERAL CRIMINAL DEFENSE CONSIDER IMPACT OF RECENT THIRD CIRCUIT COURT OF APPEAL DECISION ON THE DUE PROCESS RIGHTS OF THE ACCUSED UNDER THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

In a case of seminal importance to lawyers and attorneys practicing before the United States District Court of New Jersey, the Third Circuit Court of Appeals has declined to extend the beyond a reasonable doubt standard for a federal district court judge to decide facts that enhance sentences under the federal sentencing guidelines.

The argument advanced by the defendant in the lower court matter centered on the Fifth Amendment’s due process clause which, it was argued, requires the final determination of a defendant’s sentence (ie. guideline range) to be based only upon facts necessarily founded upon the jury’s verdict or otherwise proven by the government beyond a reasonable doubt. The Third Circuit rejected that argument. The majority of the Third Circuit, sitting en banc, held that once a defendant has been convicted beyond a reasonable doubt of conduct contained within the indictment, the person has been constitutionally deprived of liberty.

With that deprivation, the defendant may be sentenced up to the maximum authorized under the applicable criminal statute based upon other conduct that the sentencing judge determines by a preponderance of the evidence standard (ie. not the traditional criminal law standard of beyond a reasonable doubt). In the case before the Court, the defendant was convicted of federal gun possession charges. At sentencing the District Court Judge found by a preponderance of the evidence that the defendant also was involved the use of a firearm in connection with another unrelated state offense. One of the Judges who, while joining the majority holding, reflected that: “[The Defendant] is in prison in part for a crime for which he was never indicted, never tried and never convicted. His sentence is based to some extent on a judicial finding, by a preponderance of the evidence, that he committed the crime of aggravated assault….. This practice may be efficient. It my often reflect what ‘really’ happened. But in my view it is not consistent with our Bill of Rights.” In a dissenting opinion, another Judge wrote: “The majority’s decision abrogates one of the most important, if not the most important, of the rights that the Constitution affords criminal defendants: the right to be found guilty only by a finding beyond a reasonable doubt.”

Legal Quote of the Week:

If someone made a mistake, he [Darrow] would drawl, “Hell, that’s why they make erasers.” Clarence Darrow, 1857-1938 Irving Stone, Clarence Darrow for the Defense, 1941

February 12, 2007

A RECENT NEW JERSEY APPELLATE DIVISION CASE UPHOLDS THE RIGHT OF A DEFENDANT TO CROSS EXAMINE WITNESSES AGAINST HIM OR HER GIVING NEW JERSEY LAWYERS REPRESENTING THE ACCUSED FURTHER EXPANSION OF THE CONSTITUTIONAL RIGHT OF CONFRONTATION.

In prosecutions involving the results of blood testing for the presence of alcohol or an illegal narcotic (such as driving while under the influence), the State of New Jersey has the burden of production and proof beyond a reasonable doubt that the blood sample was extracted from the defendant in a medically acceptable manner. The NJ Legislature passed a statute allowing for the State to meet the burden upon the production and admission into evidence of a certificate from the who draws a blood sample at the request of the police, under oath, that the sample of blood was properly taken from the defendant. If the certificate is given, the person who draws the blood does not have to appear at trial to testify and the certificate alone is admitted into evidence. That procedure violates the Confrontation Clause of the United States and New Jersey Constitutions.

The Court relied upon the recent decision of the United States Supreme Court in Crawford v. Washington to declare the procedure of using a certificate in lieu of live testimony invalid. Crawford held that “testimonial” evidence requires confrontation regardless of whether the underlying document is deemed reliable. The New Jersey Statute held in part that: “The certificate shall be signed under oath before a notary public or other person empowered to take oaths and shall be admissible in any proceeding as evidence of the statements contained therein.” The Court held that the statute is not the deciding factor in constitutional analysis if the evidence is deemed “testimonial.” New Jersey lawyers arguing both for and against the characterization of evidence as testimonial look to Crawford for guidance. In Crawford, the U.S. Supreme Court held: “Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross examination.”

Cases since Crawford have essentially held that testimonial statements are those that are taken primarily for the purpose to establish or prove past events potentially relevant to later criminal prosecution. In this case, the Court found easily that a certification prepared for trial was clearly testimonial in nature and therefore the full protections of the Confrontation Clause were applicable.

Legal Quote of the Week:

It is not uncommon for ignorant and corrupt men to falsely charge others with doing what they imagine that they themselves, in their narrow minds and experience, would have done under the circumstances……

John H. Clarke, American jurist, Valdez v. United States, 244 U.S. 432, 450 (1917)

February 5, 2007

NEW JERSEY LAWYERS REPRESENTING VICTIMS OF THE NEGLIGENT CONDUCT OF OTHERS DO NOT HAVE TO PROVIDE COMPARATIVE ANALYSIS OF THEIR PREVIOUS INJURIES IN RELATION TO THE INJURIES SUSTAINED BY NEGLIGENT CONDUCT IN ORDER TO GAIN THE RIGHT TO SUE UNDER THE VERBAL THRESHOLD.

The New Jersey Supreme Court has ruled that Plaintiffs in a personal injury action brought in the State of NJ no longer have to provide a comparative analysis of older injuries not related to the current lawsuit in order to be allowed to bring a lawsuit under the state’s verbal threshold law and therefore sue for pain and suffering damages. If the Plaintiff, however, contends that the current condition was aggravated by a previous injury an analysis of the old and new injuries is required in order to bring the lawsuit.

The key issue is causation- what is the cause of any permanent injuries alleged by the Plaintiff- the old or the new injuries? Previously, the Plaintiff was required in all cases to make the comparative analysis in order to cross the so-called verbal threshold for those insured in New Jersey under the limitation of lawsuit option (the overwhelming majority of New Jersey insured have the option which results in lower policy premiums).

With the new ruling, New Jersey lawyers representing injury victims can bring a lawsuit without the need for a comparative analysis unless the Plaintiff alleges an aggravation of a pre-existing condition. According to the New Jersey Supreme Court: “When aggravation of a pre-existing injury is pled by a plaintiff, comparative medical evidence is necessary as part of a plaintiff’s prima facie and concomitant verbal threshold demonstration in order to isolate the physician’s diagnosis of the injury or injuries that are allegedly “permanent” as a result of the subject accident.”

Respectfully submitted,
JFR

Legal Quote of the Week:

It makes no difference whether a good man has defrauded a bad man or a bad man has defrauded a good man, or whether a good man or bad man has committed adultery: the law can look only to the amount of damage done.

Aristotle, Nicomachean Ethics, c. 340 B.C.

January 22, 2007

NEW JERSEY LAWYERS REPRESENTING AN ACCUSED CLIENT APPLYING FOR PRE-TRIAL INTERVENTION (PTI) CAN NOW USE APPELLATE COURT PRECEDENT TO ARGUE THAT HIS OR HER CLIENT SHOULD NOT BE DENIED ADMISSION TO THE PTI PROGRAM SOLELY ON THE BASIS OF A PRIOR SUPERVISORY TREATMENT PROGRAM IN ANOTHER STATE.

In New Jersey, lawyers for the accused frequently admit admission of his or her client into a diversionary program designed to give an alternative to the traditional system of criminal justice in the State which involves the prosecution and, if convicted, frequent incarceration of defendants with serious consequences for future advancement based upon a criminal conviction. New Jersey lawyers typically attempt to gain admission for his or her client to the PTI system which allows for typically lower level criminal charges to be diverted from the regular system (ie. Formal prosecution) although the program is open for application to any defendant charged with a crime in the state of New Jersey. Admission into the program is discretionary with the prosecution and in order to have a Judge of the Superior Court of New Jersey overturn a discretionary decision to deny admission, it requires a showing that the refusal was based upon “patent and gross abuse of discretion.” Such a showing can be difficult but in a recent Appellate Court case, the decision of the prosecutor was in fact overturned in light of fundamental fairness and in compliance with the goals of the PTI program. In order to achieve a reversal of the prosecution decision, a defendant is required to show that the prosecutor failed to take into consideration all relevant factors in making the decision, or the decision was based upon irrelevant or inappropriate factors, or there was clear error of judgment present.

The Appellate Court interpreted the PTI statute as passed by the New Jersey legislature in a “reasonable” manner- that is, an interpretation that is consistent with and upholds the overall objectives and goals of the legislature in passing the law in light of the express language used by the legislature in drafting and passing the law. According to the Court, the New Jersey law enacting PTI in the state provides for a single chance for diversion of the charges for a defendant charged in New Jersey. That is, a one time opportunity for the PTI program in New Jersey. In the case before the NJ Appellate Court, a defendant charged in New Jersey with possession of narcotics could not be denied admission into PTI solely because he received the benefit of a diversionary program in Pennsylvania for driving under the influence (which is not a crime in the State of New Jersey- it is a motor vehicle moving violation).

Legal Quote of the Week:

[U]nless you’re O.J. Simpson you’re not presumed to be innocent but believed to be guilty the minute people start calling you “the defendant.”

Leslie Abramson, The Defense is Ready, with Richard Flaste, 1997.

January 15, 2007

NEW JERSEY LAWYERS PRACTICING FEDERAL CRIMINAL DEFENSE BEFORE THE UNITED STATES DISTRICT COURTS IN THE DISTRICT OF NEW JERSEY CONSIDER RECENT THIRD CIRCUIT COURT OF APPEALS DECISION ON THE PARSIMONY PROVISION OF 18 U.S.C. 3553(a).

Under the applicable federal statutes governing the factors a United States District Court Judge should consider prior to imposing sentence, one stands out for consideration by criminal defense lawyers who are requesting leniency on behalf of their clients. The parsimony provision of 18 U.S.C. 3553(a) which directs the sentencing judge to “impose a sentence sufficient, but not greater than necessary” to comply with the purposes set forth in the overall statutory scheme. What is “necessary” under the circumstances varies with each individual case brought before the Court and the Judge has to make findings of fact regarding the factual foundation for any given sentence before the sentence is imposed. This requirement of a factual basis set forth on the record allows a Court of Appeals to adequately assess the reasoning behind the sentence in order to properly consider any challenges to the ruling. Under the case of United States v. Booker, a Court of Appeals can review the sentencing decision of a trial judge to determine if the sentence imposed is reasonable. In the Third Circuit, New Jersey lawyers practicing in Federal District Courts in New Jersey must follow the guidelines for the appeal set forth in United States v. Cooper which outlines the framework for review of a trial court’s sentence on grounds of reasonableness. The framework requires that all objections to the sentence first be raised before the District Court Judge for consideration at the trial court level.

In articulating a reasonable sentence, the District Judge does not have to routinely state that the sentence imposed is the minimum sentence necessary to achieve to achieve the purposes set forth by the statutes. The penological goals of the statute can be met without a recitation by the trial judge that the sentence meets the statutory requirements known as the parsimony provision. In this case, the District Judge did in fact make detailed factual findings relevant to the final sentence handed down including consideration of the defendant’s background and the nature of the offense upon which he stood convicted. A problem for the Court of Appeals in considering the matter was that the arguments raised on appeal were not raised before the trial judge. The Court of Appeals warned that it is not required to manufacture grounds for the parties or search for grounds to declare the sentence unreasonable that were not clearly raised on the record in a concise and timely fashion.

Respectfully submitted,
JFR

Legal Quote of the Week:

The strength of our persuasion is no evidence at all of their own rectitude: crooked things may be as stiff and inflexible as straight: and men may be as positive and peremptory in error as in truth.

John Locke, An Essay Concerning Human Understanding, 1690

January 8, 2007

NJ COURT OF APPEALS DENIES NEW TRIAL TO CHERRY HILL, NEW JERSEY RABBI WHO SOUGHT RELIEF FROM TRIAL JUDGE’S RULING BARRING HIS NEW JERSEY LAWYERS FROM INTRODUCING EVIDENCE THAT GOVERNMENT WITNESS COMMITTED ANOTHER MURDER IN SAME MANNER

In the highly publicized case of Rabbi Fred Neulander, the New Jersey lawyers defending him sought to introduce at trial the testimony of a fellow inmate of the government’s chief witness. The fellow inmate would have testified that the government witness admitted to the murder of another person in the same manner and fashion as the murder of Neulander’s wife. The New Jersey lawyers argued as a defense to the murder charges that the person who actually did the murder acted by himself and on the orders of the Neulander himself. He was found guilty in 2002 in Camden County, New Jersey of the murder for hire of his wife for the payment of $18,000.00. In exchange for not facing the death penalty, the individual who committed the murder pled guilty and testified on behalf of the state. The motive alleged by prosecutors was that Neulander wanted his wife killed so that we could continue an affair with a local media personality knowing that an extra-marital affair could cause a loss of his congregation at a local synagogue.

The Camden County trial judge did not allow the evidence of the fellow inmate before the jury. She indicated that the relevancy of the evidence did not outweigh the potential for undue delay in the trial and confusion on the part of the jury. It was anticipated by the trial judge that the evidence regarding the murder of someone else would have taken a very long time to present to the jury and the prosecutor would have to refute the testimony of the fellow inmate making the issue of who murdered the other person an actual trial within a trial. Even though the evidence had exculpatory value, there is a balancing process that a trial judge must engage in to determine if that probative value is outweighed by other competing factors. In this case, the trial judge found the other factors too compelling to allow the exculpatory information to be introduced.

Respectfully Submitted,
JFR

Legal Quote of the Week:

Gentlemen of the jury; the charge against the prisoner is murder, and the punishment is death; and that simple statement is sufficient to suggest the awful solemnity to the occasion which brings you and me face to face.

John Inglis, A Complete Report of the Trial of Miss Madeline Smith, 1857

January 1, 1007

NEW JERSEY LAWYERS CONSIDER RECENT APPELLATE DIVISION OPINION REQUIRING TESTIMONY OF NJ LAWYER BEFORE STATE GRAND JURY INVESTIGATING ACTIVITIES OF ATTORNEY’S FORMER CLIENTS RAISING ISSUES OF ATTORNEY-CLIENT PRIVILEGE

In an issue previously unaddressed by the New Jersey Appellate Courts, an attorney is required to appear before a Grand Jury investigating former clients for illegal gambling activities. The prosecutor in the matter submitted an affidavit to the Judge requesting the subpoena of the attorney who previously represented the targets of the grand jury criminal probe. The targets are alleged to have used a club created for social activities was in reality an illegal gambling hall. Several of the targets, now defendants, allegedly indicated that they relied upon the advice of their former attorney. The Grand Jury issued a subpoena to the attorney to testify about the matter and bring documents. The attorney moved to quash the subpoena and the trial judge considered the ex parte certification of the prosecutor as to the necessity of the New Jersey lawyer’s testimony.

The New Jersey Superior Court, Appellate Division, ruled that it was in fact proper for the Judge to consider the certification of the prosecutor without allowing the attorney who was the subject of the subpoena to review it as well. Other federal courts have considered the issue and have ruled in favor of the procedure in order to preserve the secrecy of the grand jury proceedings.

With regard to the all important attorney-client privilege which otherwise requires New Jersey lawyers with a duty to protect information received from clients even after the representation of the attorney is complete, the Court held that the privilege does not protect the New Jersey lawyer from appearing before the Grand Jury but held that the privilege may be invoked with regard to specific questions if appropriate. Thus, there is a clear record for reviews by the trial judge at a later time whether or not the privilege applies. The case law of New Jersey holds that a witness has the burden to justify the invocation of a privilege each time he or she asserts it.

December 11, 2006

RECENT NEW JERSEY APPELLATE DIVISION CASE OF INTEREST TO NEW JERSEY LAWYERS PROVIDES GUIDANCE ON THE EXTENT OF SUPPRESSION APPROPRIATE WHEN LAW ENFORCEMENT VIOLATES THE NEW JERSEY CONSTITUTIONAL PROHIBITION AGAINST UNREASONABLE SEARCH AND SEIZURE.

A panel of the New Jersey Superior Court, Appellate Division, recently held that all evidence resulting from a state (ie. law enforcement) violation of the law against unreasonable search and seizure does not require suppression of all evidence (including a confession of the accused) developed as a result of the illegal activity. In the case, State v. Bell, police executed an arrest warrant issued by a detached and neutral magistrate in the home of the suspect’s aunt. The warrant, however, under New Jersey law did not provide the police with authority to enter the home of the aunt without a search warrant directed at her home. New Jersey lawyers representing accused in NJ frequently rely upon a U.S. Supreme Court case, Steagald v. United States, which holds that, absent exigent circumstances, a search warrant is necessary prior to law enforcement legally searching the home of a third party for the subject of an arrest warrant.

In the case before the New Jersey Court, the defendant allegedly confessed to the crime of murder after being arrested at the home of his aunt. Defendant Bell moved to suppress the confession evidence (declare the evidence not admissible at the jury trial) because of the violation of entering the aunt’s home without a search warrant. Relying on a “fruit of the poisonous tree” argument (the alleged confession is a direct result of the illegal police activity), Defendant argued that the confession should be suppressed. The NJ Court, however, distinguished the argument on the grounds that the alleged confession was not the result of an arrest in the aunt’s home- that is, the confession did not flow from or was not related to the arrest in the aunt’s home. Also, the New Jersey Court pointed out that the exclusionary rule requiring suppression of evidence gained by an illegal police conduct is designed at least regarding search warrants to protect the sanctity of the home and “not intended to grant criminal suspects…protection for statements made outside their premises where the police have probable cause to arrest the suspect for committing a crime.”

Respectfully Submitted,
JFR

Legal Quote of the Week:

Who sees not, that whosoever ministers to the poor, ministers to God? As it appears in that solemn sentence of the last day, Inasmuch as you did feed, clothe, lodge the poor, you did it unto me?

Sir Henry Hobart, English jurist; Chief Justice,
Pits v. James (1614), Lord Hobart’s Rep. 125.

November 30, 2006

NEW JERSEY LAWYERS REPRESENTING THE ACCUSED IN NJ COURTS CONSIDER RECENT APPELLATE COURT RULING REQUIRING A SPECIAL CHARGE TO THE JURY IN A VEHICULAR HOMICIDE CASE ON THE ISSUE OF CAUSATION FOR THE LOSS OF LIFE IN NEW JERSEY

When the State of New Jersey through a county prosecutor’s office decides to present charges of vehicular homicide against a person to a Grand Jury the case typically involves an analysis by the NJ Lawyers involved as to the issue of causation- that is, what acts of the defendant allegedly caused the death of another and are there any other intervening causes that may have contributed to the death regardless of any reckless acts of the defendant. The causation is typically based upon what is known as “but for” causation which is that the jury must find beyond a reasonable doubt that the death would not have occurred “but for” the reckless conduct of the defendant. When there is evidence to infer that the acts of another person or event resulted in death, there should be a not guilty verdict returned if that evidence raises a reasonable doubt regarding causation for the death and in spite of any contributing factors by the accused. In other words, in order to find the defendant guilty of vehicular homicide, the jury must that the person would not have died but for the defendant’s conduct.

In the case before the NJ Appellate Court, State v. Eldridge, a defendant was convicted in New Jersey of two counts of vehicular homicide for causing the death of two passengers in the vehicle while driving intoxicated and crashing the car into a tree. On appeal, the New Jersey lawyers representing the defendant asserted that the jury instructions given by the trial judge violated due process under the NJ Constitution. The NJ trial judge failed to adequately inform the jury that it had the right to find the defendant not guilty if they concluded the actions of another- in this case, the actions of one of the passengers which allegedly contributed to the accident and the subsequent death of the passenger and another person in the car- created an intervening cause of the accident. As a result of this failure in instruction, the conviction was reversed. Full and accurate jury charges are essential to a fair trial especially in a case like this one where both parties were arguing varying versions of causation for the deaths. The New Jersey judge has a particularly important role in explaining the controlling legal principles and the questions the jury is to decide. With proper instructions, the jury may have accepted defendant’s theory of the case- no matter how reckless an act of driving while intoxicated, any such recklessness on the defendant’s part did not cause the accident because the crash would not have occurred but for the actions of another person. The defendant had testified before the jury that one of the passengers caused the accident by pushing her face with his hands while she was driving immediately before the crash.

Respectfully submitted,
JFR

November 22, 2006

Respectfully submitted,
JFR

Legal Quote of the Week:

[U]nless you’re O.J. Simpson you’re not presumed to be innocent but believed to be guilty the minute people start calling you “the defendant.”

Leslie Abramson, The Defense is Ready, with Richard Flaste, 1997.

November 13, 2006

NEW JERSEY LAWYERS CONSIDER RECENT NINTH CIRCUIT COURT OF APPEALS CASE HOLDING WAIVERS OF JURY TRIALS IN HIGH PUBLICITY CASES POSSIBLE WITHOUT THE CONSENT OF THE PROSECUTION IF A FAIR TRIAL IS NOT POSSIBLE GIVEN THE ALLEGATIONS AGAINST THE ACCUSED.

New Jersey lawyers representing the accused in NJ often encounter highly emotional allegations brought by the Prosecutor’s Office which potentially impact a juror’s ability to remain unbiased and objective in an analysis of the evidence brought forth against the accused person. The most sensational and emotional allegations typically involve sexual abuse cases where the accused is alleged to have abused a minor in his or her care or custody. In a recent case, the United States Court of Appeals for the Ninth Circuit considered a request by a defendant accused of child sexual abuse of waiving his constitutional right to a jury trial in favor of a bench trial (ie. a trial held in front of a United States District Court Judge who will decide both issues of law and fact) Typically, the role of the jury is to decide contested issues of fact but a Judge can resolve issues of fact disputed between the parties in a bench trial. New Jersey lawyers representing the accused in federal and state courts typically do not waive the accused right to a trial by jury because the jury is perceived in our legal customs as the best decision makers regarding disputed factual issues. However, if the accusations are so inflammatory and sensational, there may be the possible prejudice to the accused that the average juror would have difficulty weighing the evidence fairly.

In the case before the Ninth Circuit, the defendant stood accused of ritual sexual abuse of minors- sensational facts that, if proven, would result in a life sentence for the defendant. Rule 23(a) of the Federal Rules of Criminal Procedure, requires the prosecution consent to the defendant’s waiver of a jury trial. New Jersey lawyers know that the United States Supreme Court upheld that rule in a case titled U.S. v. Singer back in 1965 but the Court left open the possibility that there may be some accusations so prejudicial to the right of a fair trial that the prosecution consent may not be necessary. As the Court in Singer held: “We need not determine in this case whether there might be some circumstances where a defendant’s reasons for wanting to be tried by a judge alone are so compelling that the government’s insistence on a trial by jury would result in a denial to a defendant of an impartial trial…”

The Ninth Circuit overruled the trial court’s decision to allow the bench trial over the objection of the prosecution. The defense attorney is appealing the case to the entire Ninth Circuit to review the decision of a panel of judges from that Court. If the trial judge’s decision is upheld, it will be only the third time that trial judges have imposed a bench trial in the face of prosecution objection to the waive of jury trial- one case known to the New Jersey lawyers involved a case from the United States District Court for the District of New Jersey which involved a complex tax fraud case the factual allegations considered too complex for the average juror to comprehend.

Respectfully Submited,
JFR

Legal Quote of the Week:

We want a society where people are free to make choices, to make mistakes, to be generous and compassionate. This is what we mean by a moral society; not a society where the state is responsible for everything, and no one is responsible for the state.

Margaret, Lady Thatcher
Speech, 1977

November 6, 2006

NEW JERSEY APPELLATE DIVISION DECIDES IMPORTANT CASE FOR NEW JERSEY LAWYERS INVOLVED IN THE REPRESENTATION OF THE ACCUSED IN NJ MUNICIPAL COURTS FOR DRUG AND ALCOHOL OFFENSES REQUIRING THE STATE TO PRODUCE AS A WITNESS AT TRIAL THE INDIVIDUAL WHO ANALYZED THE BLOOD SAMPLE AND PREPARED ANY DOCUMENTATION OR CERTIFICATION ATTESTING TO THE RESULTS OF THAT ANALYSIS.

The Appellate Court of the Superior Court of New Jersey recently handed down a decision that upholds the right of confrontation for an individual accused of a drug or alcohol offense in Municipal Courts of New Jersey. Any New Jersey lawyer involved in the defense of a such a case can now require that the State that the person who produced the certification attesting to the laboratory results of any scientific tests be available to testify at trial and be subjected to cross examination regarding the qualifications of the person to administer the tests and the test procedures used. The Constitutional guarantee that anyone accused of an offense carrying consequences of magnitude be afforded the right to question the accuser is a fundamental due process protection in our system of law. In other words, the lab certificate cannot be simply admitted into evidence without an opportunity for effective and truth seeking cross examination by a NJ lawyer or the accused acting in a pro se capacity.

In this case, the NJ Court rejected an argument by the State that the Certificate by the laboratory is admissible into evidence without cross examination under some well-recognized exceptions to the prohibition against the admission of hearsay at trial: that is, the records are created and kept in the ordinary course of business of the laboratory. The business records exceptions requires that the document be prepared and preserved in the ordinary course of business and not created primarily for use at trial. If the requirements of this hearsay exception are met, the document is deemed sufficiently reliable and therefore admissible at the trial. The Court held that the blood alcohol laboratory certificate is “not a record prepared or maintained in the ordinary course of government business.” The certificate is expressly the result of a action by the government to prove an element of the offense charged- and hence readily created and used with an anticipation of use at trial. Moreover, the fact that a laboratory sanctioned by the State of New Jersey does not presume that the testing and results are neutral and thus reliable. There is no such presumption and the witness who has personal knowledge of the facts of the case must be produced by the State when demanded by the New Jersey lawyer representing the accused or the accused person who is acting as his or her own lawyer in the proceedings.

Respectfully Submitted,
JFR

Legal Quote of the Week:

Those who make the attack ought to be very well prepared to support it.

Sir Giles Rooke, English jurist, Almgill v. Pierson (1797), 2 Bos. & Pull. 104.

October 23, 2006

STATE SUPREME COURT OF NEW JERSEY PROVIDES ADDITIONAL PROTECTIONS TO NJ CITIZENS UNDER THE STATE CONSTITUTION DECLARING ADDITIONAL RIGHTS UNDER THE SEARCH INCIDENT TO ARREST EXCEPTION TO THE WARRANT REQUIREMENT OF THE ARTICLE I, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION THAN WHAT NEW JERSEY LAWYERS WOULD FIND UNDER THE FOURTH AMENDMENT OF THE FEDERAL CONSTITUTION PROTECTING AGAINST UNREASONABLE SEARCH AND SEIZURES.

In a recent case expanding the protections provided to citizens under the Constitution of the State of New Jersey, the NJ Supreme Court declared that a warrantless search of an automobile as incident to arrest after the occupants of the vehicle are removed and placed securely in police custody (ie. Handcuffed and in the back of a patrol car), is unconstitutional under state constitutional principles even though the federal constitution would have allowed the same search to pass muster under the federal fourth amendment to the U.S. constitution.

New Jersey Lawyers representing the accused often cite Article I, Paragraph 7 of the NJ Constitution which holds that: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized.” This provision is almost identical in language to the Fourth Amendment of the U.S. Constitution.

The protection afforded to citizenry against unreasonable search and seizure encompasses those areas where a reasonable expectation of privacy is recognized by society. The home is an example of an area where privacy against government intrusion is highest. The automobile is another example but one of less privacy interest. Nevertheless, there remains protection in a car which was the focus of this decision which held that when the occupants are incapacitated, they no longer retain the ability to harm the police or destroy evidence (the two major justifications for allowing the police to search the vehicle incident to arrest without first obtaining approval from a neutral and disinterested magistrate which is the process mandated by the constitutional protection).

Each case in this area of law is decided on it’s own set facts considering the totality of the circumstances and the common law precedents established in prior cases. The State of New Jersey, however, is allowed to provide additional protections beyond that found in federal law. As Justice Clifford noted years ago concerning the relationship between federal and state constitutional law:

Legal Quote of the Week:

“although that Court [U.S. Supreme Court] may be the polestar that guides us as we navigate the New Jersey Constitution, we bear ultimate responsibility for the safe passage of our ship. Our eyes must not be fixed on that star that we risk the welfare of our passengers on the shoals of constitutional doctrine. In interpreting the New Jersey Constitution, we must look in front of us as well as above us.”

October 9, 2006

NEW JERSEY LAWYERS EVALUATE RECENT NJ SUPREME COURT CASE ON IDENTIFICATION PROCEDURES USED BY WITNESSES OF A CRIME TO PROMOTE RELIABILITY OF THE OUT OF COURT SELECTION OF AN INDIVIDUAL AS THE PERPETRATOR OF AN OFFENSE IN THE STATE OF NEW JERSEY

Identification by a complaining witness that a particular individual is the person responsible for the commission of a crime in New Jersey can be powerful evidence against a defendant. Courts generally recognize, however, that the procedures used by law enforcement cannot be unduly suggestive as to taint the selection of one particular person as the perpetrator. The admissibility of identification evidence at trial depends upon a showing by the prosecutor that the procedures used to make the identification were did not taint the selection process. However, even if the Court does find such a violation, it usually examines the totality of the circumstances surrounding the identification of the defendant to determine if reliable nevertheless.

In a recent ruling by the New Jersey Supreme Court, the issue under consideration involved a car jacking case wherein a one-on-one show up where the police bring a suspect to the complaining witness (without any other selection possible) and request a positive id. In this case, the police went even further by remarking to the complaining witness that: "We found your car, we located your car with somebody in it, we want you to come with us to identify the person." Although the NJ Court found the comments of police, in addition to the procedures used in the show-up, violated the due process rights of the defendant by making the identification procedure impermissibly suggestive, the New Jersey Court subsequently considered whether the totality of the circumstances surrounding the show up rendered it sufficiently reliable to allow the evidence to be admissible at trial. There are several factors in this analysis that include: the opportunity of the witness to view the perpetrator at the time of the crime, the witness’s degree of attention, the accuracy of the witness’ prior description of the defendant, the level of certainty demonstrated at the confrontation and the time between the crime and the confrontation. All these factors must be weighed by a New Jersey Court and argued by any New Jersey lawyer representing an accused against the taint associated with an impermissibly suggestive procedure used by NJ police in the identification.

In the case before the Court, even though the initial procedure for identification violated due process, the witness had sufficient contact with the accused on other days than the date of the offense in order to provide a reliable identification of the defendant in spite of the constitutional violation of due process.

Legal Quote of the Week:

The Judge should not be young; he should have learned to know evil, not from his own soul, but from the late and long observance of the nature of evil in others: knowledge should be guide, not personal experience.

Plato, The Republic, c.370 B.C.

October 2, 2006

NEW JERSEY SUPREME COURT ISSUES RULING OF INTEREST TO NEW JERSEY LAWYERS POTENTIALLY “OPENING THE DOOR” TO INCREASED SEARCHES OF NJ RESIDENCES BASED UPON CONSENT OF THE OWNER OR OCCUPANT WITHOUT THE REQUIRED REASONABLE SUSPICION APPLICABLE IN THE CONSENT SEARCH OF A MOTOR VEHICLE ON THE ROADWAYS OF NEW JERSEY

When it comes to the ability of law enforcement to approach a home in New Jersey, knock on the door and seek consent to search, the NJ Supreme Court has ruled that no reasonable suspicion of criminal activity is necessary as a predicate to the governmental action. NJ Lawyers practicing criminal defense work have often relied upon pronouncements from the Court giving more protection to the individual under the New Jersey Constitution than that is found under the United States Constitution. The longstanding protection relied upon by the majority of the NJ Supreme Court to prevent abusive exercise of this power to request a consent search without reasonable suspicion lies in the requirement that the police obtain consent to search only after explaining to the owner and/or occupant of the premises that he or she has the right to decline giving consent. In a criminal case, the state of New Jersey has the burden of proving that the person knew of the right to refuse which typically takes the form of a completed consent to search form completed prior to the police initiated the search of the premises. Requiring the government to prove a knowing consent to search satisfies the constitutional requirement of notice and allows citizens who wish to cooperate with the police an option to do so.

The majority opinion distinguished this case from an earlier ruling holding that searches of automobiles requires not only knowing consent but also a reasonable suspicion of criminal behavior. According to the majority, “There’s more compulsion to agree to a search when a motorist is stranded after a motor-vehicle stop… than when a person is secure in his own house and not under any form of detention.” As further stated “The Constitution protects against unreasonable searches and seizures and against coerced waivers of constitutional rights. It does not disallow voluntary cooperation with police.” New Jersey lawyers involved in the representation of an accused individual must carefully examine the facts of each case to argue whether this case is applicable under any given set of circumstances.

In the earlier case involving a motor vehicle, the Court held that knowledge by the motorist of the right to refuse consent is not constitutionally sufficient for a consent search if the New Jersey police officer did not have a reasonable and articulable suspicion of criminal activity which is beyond the reason for the initial stop of the motor vehicle.

Respectfully Submitted,
JFR

Legal Quote of the Week:

The business of the advocate, simply stated, is to win if possible without violating the law.

Marvin E. Frankel, American jurist and U.S. District Court Judge, National Observer, November 1, 1975

October 2, 2006

NEW JERSEY LAWYERS REPRESENTING A CRIMINAL DEFENDANT BEFORE AN NJ JURY IN SUMMATION CAN ARGUE THAT THE FAILURE OF THE STATE OF NEW JERSEY TO PRESENT FINGERPRINT EVIDENCE LINKING THE ACCUSED TO THE CRIME IS REASONABLE DOUBT AS TO THE GUILT OF THE DEFENDANT

The New Jersey Appellate Division in State v. Loyal held that a New Jersey criminal defense lawyer can, within limits, argue to a jury that the lack of fingerprint evidence in case is exculpatory evidence pointing to reasonable doubt whether this particular person accused of the crime is the actual perpetrator of the crime. Frequently, fingerprint evidence left at the crime scene or on an instrument used in the commission of a crime is powerful evidence of the identity of the person who committed the offense and is often presented to the jury by the New Jersey prosecutor as part of an overall case linking an individual to a crime. On the other hand, the lack of fingerprint evidence in an NJ criminal case can likewise provide a strong argument for a New Jersey lawyer before a jury in closing argument to infer that the lack of evidence is reasonable doubt and therefore the burden of proof on the State of New Jersey has not been met resulting in a not guilty verdict. In an analogous case, the existence of finger prints of another individual other than the defendant can lead to an argument that a third party is responsible for the crime and not the defendant.

Prior to this case, no New Jersey case addressed the issue of the propriety of this argument. The Court of Appeals examined prior precedent of the NJ Supreme Court and held that such an argument is in fact proper. At the trial of the case before the NJ jury, the New Jersey lawyer representing the defendant argued that: “Reasonable doubt comes from evidence and from the lack of evidence. This is a murder case. And you have no prints.” This argument is often used by NJ Lawyers in reminding a jury that reasonable doubt is not just limited to what is presented by the parties but is often by, through the use of reasonable inference, what is not presented which should have been in order to meet the burden of proof beyond a reasonable doubt.

The right to comment on the lack of fingerprint evidence is not without limits in New Jersey. Evidence needs to exist to support the contention or the New Jersey Lawyer representing the accused cannot argue that the failure to obtain fingerprint evidence did not comply with proper police practice or that if fingerprints had in fact been obtained they would have exculpated the individual on trial. In the case before the NJ Court of Appeals, several witnesses linked the defendant to possession of the weapon (a gun used in a murder) but all witnesses shared credibility problems which the NJ criminal defense lawyer pointed out in cross examination. Issues of bias and motive to lie made the case less than clear for the State of New Jersey in prosecuting the case. The defendant (after conviction with an instruction to the jury by the trial court judge that they should not consider what may or may not have been on the weapon in terms of fingerprints because that would be speculation) argued before the Court of Appeals that his right to due process and a fair trial were violated when the trial court issued that instruction to the jury.

Respectfully Submitted,
JFR

Legal Quote of the Week:

You can always tell a barber by the way he parts is hair; You can always tell a dentist when you’re in the dentist’s chair; And even a musician- You can tell him by his touch; You can always tell a lawyer, but you cannot tell him much.

Anonymous, Jacob M. Braude, Lifetime Speaker’s Encyclopedia 1962

September 25, 2006

NEW JERSEY LAWYERS PRACTICING CRIMINAL DEFENSE IN NJ CONSIDER CONSTITUTIONAL IMPACT OF RECENT UNITED STATES SUPREME COURT LIMITING THE EXCLUSIONARY RULE OF THE FOURTH AMENDMENT PROTECTION AGAINST UNREASONABLE SEARCH AND SEIZURE OF PERSON AND PROPERTY.

The traditional remedy for governmental violations of the 4^th amendment to the United States Constitution is the exclusion of any evidence from trial which is obtained as an unreasonable and therefore unconstitutional search and seizure. The 4^th amendment continues to provide effective limitations on government from intruding into the lives of ordinary citizens unless there is legitimate and justifiable cause. In a recent case, however, the United States Supreme Court held that evidence obtained in violation of the 4^th amendment could still be admissible at trial against the accused. The governmental violation at issue in the case involved the unconstitutional entry into a private home by not following the “knock and announce” rule requiring the police to announce their presence at the door and give the occupant a chance to open the door prior to forcing an entry into the premises. A majority of the Supreme Court announced in the decision that the manner of entry no longer required a 4^th amendment constitutional analysis. In support of this conclusion, the majority relied upon the inevitable discovery doctrine to hold that regardless of the preliminary unconstitutional action, the police were present with a valid warrant and would have found evidence inside the residence pursuant to that warrant in any event. The majority further relies upon civil suits brought by those aggrieved by unconstitutional governmental intrusions and police internal investigations and procedures as an effective means of enforcing claims of unreasonable search and seizure. The opinion, written by Justice Scalia, provides that there is contemporary evidence that law enforcement in the United States takes more seriously than ever the rights of the public under the Constitution.

The dissenting Justices point out that the inevitable discovery rule is typically used to determine if evidence would have been discovered independently from the constitutional violation- not to address the situation where police acted in a constitutional manner from the start. Justice Breyer, writing for the dissent, stated that the case could have been justified by the government by the well recognized exception to the knock and announce rule allowing for law enforcement to enter without the customary announcement when there is a threat to the officers present at the location. In the case, the warrant itself made reference to the potential existence of weapons at the location without the necessity of addressing the reach of the 4^th amendment in a general fashion under the knock and announce rule. Many commentators also point out that any increased sensitivity to constitutional standards is a result of the strengthening of the 4^th amendment in the sixties under the term of the Chief Justice Earl Warren which is commonly known as the Warren Court.

Respectfully Submitted,
JFR

Legal Quote of the Week:

Our Constitution is in actual operation; everything appears to promise that it will last; but in this world nothing is certain but death and taxes.

Benjamin Franklin, Letter to Jean-Baptiste Le Roy, November 13, 1789.

September 18, 2006

NEW JERSEY COURT OF APPEALS DECIDES CASE OF INTEREST TO NEW JERSEY LAWYERS IN THE REPRESENTATION OF PERSONAL INJURY PLAINTIFFS BY RULING THAT THE INJURED PLAINTIFF CAN TENDER A SECOND OFFER OF JUDGMENT TO THE TORTFEASOR WITHOUT ELIMINATING THE FEE SHIFTING CONSEQUENCES OF A FIRST TENDER REJECTED BY THE DEFENDANT.

New Jersey Lawyers applying the Offer of Judgment provisions of NJ Rule of Court 4:58-1 can take solace that the benefits derived from an initially rejected tender of an offer by the Defendant in a New Jersey personal injury case will not be lost even if a second tender is made not in compliance with the timing requirements of the Rule. The Offer of Judgment rule is designed to promote early settlement between the parties to a New Jersey civil lawsuit (except matrimonial cases) and is most often used by the Plaintiff in a personal injury lawsuit to offer to settle the case without the expense of litigation to either party. The Rule also creates disincentives for litigants to reject reasonable offers of compromise tendered under the rule which allows either party to offer a tender to the other party. The policy to promote settlement by the use of the Offer of Judgment in New Jersey cases is sound. To implement the effectiveness of the Offer, the rule requires the recipient of an Offer of Judgment to react to it in a prompt fashion. That is, the offeree (the party receiving the Offer of Judgment) can only accept the proposed terms within 90 days of service of the offer or prior to 10 days before the actual trial date, whichever date occurs sooner. If the offeree does nothing with these specific time limitations, the offer automatically expires.

The consequences of non-acceptance of an offer come into effect if the partying who tendered the offer obtains a verdict in an amount that is 120% of the offer or more (if a money judgment is sought) excluding allowable prejudgment interest and counsel fees, the party tendering the offer shall be entitled to costs of suit, all reasonable litigation expenses incurred following non-acceptance, prejudgment interest at a higher rate and reasonable attorney fees. All of these items payable by the offeree who did not timely accept the Offer of Judgment which are expenses that are typically paid by the prevailing party out of the judgment awarded by the jury.

In the case before the New Jersey Appeals Court, the Plaintiff tendered an Offer of Judgment years before the trial date for $20,000.00 which the Defendant in this New Jersey personal injury case did not accept on a timely basis. Once that date passed, Defendant’s forfeited the opportunity to settle the case for $20,000.00 without bearing the fee-shifting consequences of the rule. The Plaintiff issued a second untimely offer for a lower amount that the first. The New Jersey Court of Appeals held that the Plaintiff’s service of a second lesser offer did not negate the fee-shifting consequences created by Defendant’s failure to accept Plaintiff’s earlier offer.

Respectfully Submitted,
JFR

Legal Quote of the Week:

The degree of civilization which a people has reached, no doubt, is marked by their anxiety to do as they would be done by.

Oliver Wendell Holmes, The Common Law, 1881

September 11, 2006

NEW JERSEY LAWYERS CONSIDER RECENT NJ SUPREME COURT DECISION UPHOLDING A POLICE OFFICER’S COMMAND AND SUBSEQUENT ENFORCEMENT OF “POLICE, STOP” IN SPITE OF THE OFFICER LACKING THE TYPICAL PREREQUISITE SUSCIPION TO JUSTIFY THE CITIZEN STOP.

New Jersey lawyers practicing in the field of criminal defense work typically quote a constitutional principle in the analysis of whether a police encounter with citizens passes the Fourth Amendment protection against unreasonable search and seizure. As far back as Terry v. Ohio, the United States Supreme Court emphasized that: “Obviously, not all personal intercourse between policemen and citizens involves seizures of persons. Only when an officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred.” The test is typically an objective one: that is, a person is “seized” within the meaning of the federal (and state) constitution when the surrounding circumstances would lead a reasonable person in the circumstances (not the subjective belief of the defendant or the police officer) that they are not free to leave. If the test is met, New Jersey lawyers often look to the level of reasonable suspicion held by the police officer to justify that seizure and if that level of suspicion passes the constitutional test. That test is whether the police officer had a reasonable and articulable suspicion of criminal activity to justify an initial stop of the citizen.

New Jersey lawyers must now contend with a recent ruling by the New Jersey Supreme Court that, as long as the police officer acts in good faith, an order to a citizen to stop is enforceable by the officer regardless of whether a reasonable and articulable suspicion exists for the order to stop. The dissenting justices in the case remarked that the police officer lacked the required level of suspicion needed for an investigatory stop of the defendant. The majority, however, concluded that the officer was “lawfully performing an official function” in issuing the command to stop under the New Jersey criminal statute at issue: Obstructing Administration of Law or other Governmental Function under N.J.S.A. 2C:29-1.

As summed up by the majority of the New Jersey Supreme Court in this case: “A person has no constitutional right to endanger the lives of the police and public by fleeing or resisting a stop, even though a judge may later determine the stop was unsupported by reasonable and articulable suspicion.” The NJ Court also found that the police officer was acting in good faith and not completely arbitrary, and the conviction for obstruction of justice was upheld against the defendant. The New Jersey Court majority compared the situation to resisting arrest: a person has no right to resist arrest even if the arrest is later determined to be unlawful. So, as long as the police officer is lawfully performing an official function and acts in good faith, any order to stop issued by the officer to a citizen needs to be obeyed even if the order is not justified under a constitutional analysis or the citizen risks conviction for obstruction of justice.

Respectfully Submitted,
JFR

Legal Quote of the Week:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….

Constitution of the United States, Fourth Amendment, 1791

August 28, 2006

NEW JERSEY LAWYERS CONSIDER RECENT NJ SUPREME COURT DECISION HOLDING HYPNOTICALLY AIDED TESTIMONY IS INADMISSIBLE IN A CRIMINAL TRIAL IN THE STATE OF NEW JERSEY IN ORDER TO ENSURE A FAIR TRIAL BASED UPON RELIABLE EVIDENCE

Back in 1981, New Jersey lawyers practicing at the time were given guidelines by the NJ Supreme Court to use to establish the admissibility of witness testimony refreshed by the use of hypnosis. Today, that approach is no longer followed as the Court has given NJ Lawyers another ruling that such testimony is not longer reliable for use in criminal trials based upon the fact that the underlying science is not sound and inherently unreliable. Where there is little over evidence supporting a criminal charge, a witness who has difficulty remembering events or the identity of the a defendant as the perpetrator of a crime will sometimes undergo hypnosis to in order to aid recall.

Problems with this type of testimony identified by the Court included a sense of false confidence on the part of the witness simply by undergoing hypnosis which does not have sufficient scientific foundation to gauge the reliability of the resulting recollection of the witness. According to the Court: “We are not convinced that tit is possible to know whether post-hypnotic testimony can ever be as reliable as testimony that is based on ordinary recall, even recognizing the myriad of problems associated with ordinary recall. We therefore conclude that the hypnotically refreshed testimony of a witness in a criminal trial is generally inadmissible.” In the case, the complaining witness for the prosecution had little recall of the identity of the defendant with little other untainted evidence pointing to the defendant as the perpetrator.

New Jersey now joins twenty-six other states that bar the use of the same type of testimony. Of note, however, to New Jersey criminal defense lawyers is the possible use of hypnotically aided testimony when introduced by the defendant. In a 1987 opinion by the United States Supreme Court, the Court ruled that defendants can testify after having been hypnotized.

Respectfully Submitted,
JFR

LEGAL QUOTE OF THE WEEK:

Witnesses may lie, either be mistaken themselves, or wickedly intend to deceive others…but…circumstances cannot lie.

Richard Mounteney, Irish jurist, Annesley v. Lord Anglesca (1743), 17 How. St. Tr. 1430

August 20, 2006

NEW JERSEY GOVERNOR CORZINE SIGNS LAW OF KEY INTEREST TO NEW JERSEY LAWYERS, ESPECIALLY NJ CRIMINAL DEFENSE LAWYERS, GIVING JURISDICTION TO THE NJ SUPERIOR COURT IN MOTOR VEHICLES CASES THAT CAUSE GRAVE INJURIES.

Grave injuries caused by a motorist on the roads of the State of New Jersey (ie. where death or serious injury occurs) will have the any and all offenses, including motor vehicle offense, heard not in the municipal court which typically has jurisdiction over motor vehicle offenses but the Superior Court of New Jersey. It is possible that the matter may be referred back to the municipal court for final disposition of the motor vehicle charges (along with any companion disorderly or petty disorderly person offenses) but, until if and when that happens, exclusive jurisdiction rests with the higher court known as the Superior Court.

The law signed by Governor Corzine is designed to prevent a situation where two courts are acting to resolve charges (both criminal and motor vehicle) evolving from the same set of circumstances. The NJ Supreme Court has ruled that the constitutional protection against double jeopardy of the state and federal constitutions applies after a defendant enters a plea of guilty in a municipal court to motor vehicle offenses so that a subsequent prosecution against that same defendant for the same conduct in Superior Court of NJ is not allowed.

The law is designed to prevent a reoccurrence of an incident in the Trenton Municipal Court where the driver of a vehicle pled guilty to traffic offenses in an incident involving the death of other motorists. The municipal court judge was not told that the same defendant faced aggravated manslaughter charges on the county level for the same incident. Prosecutors later had the municipal court plea vacated but, if the plea had remained, the defendant would not have been tried at the county level for the more serious criminal offense arising out of the same incident.

Respectfully Submitted,
JFR

Legal Quote of the Week:

There is one universal law that has been formed or at least adopted…. By the majority of mankind. That law is justice. Justice forms the cornerstone of each nation’s laws.

Alexis de Tocqueville, Democracy in America, 1835

July 10, 2006

NEW JERSEY SUPREME COURT RENDERS DECISION OF INTEREST TO NEW JERSEY LAWYERS REGARDING THE CONSTITUTIONALITY OF SHOW-UPS: A WITNESS IS BROUGHT BY LAW ENFORCEMENT TO A SINGLE INDIVIDUAL AND ASKED TO IDENTIFY THAT PERSON AS THE ALLEGED PERPETRATOR OF A CRIME

NJ criminal defense lawyers have long argued that a “show up” as opposed to a “line up” is not constitutional due to the obvious suggestiveness of the procedure used- that is, one suspect being produced for identification from a witness to the alleged violation of New Jersey law. The NJ Supreme Court, however, recently declined to rule that the use of show ups violates the New Jersey Constitution. In context, the United States Supreme Court has likewise failed to rule a show up as unconstitutional either holding that a court must examine the procedure to determine if it was impermissibly suggestive and, if yes, whether the procedure was reliable anyway.

In a dissenting opinion, Justice Albin commented that: “In light of the increased likelihood of misidentifications by the use of show ups, this court should not be timid about barring that highly suggestive procedure in circumstances when its use is not warranted.” The cases are necessarily highly fact sensitive. In this case, the complaining witness was knocked unconscious and had his vehicle stolen. The witness was taken to a hospital room where the defendant lay on a gurney surrounded by police officers and nurse and told to identify the person who hit him. The majority opinion of the New Jersey Supreme Court, like the dissent, identified the procedure as highly suggestive but determined there was other evidence in the case sufficient to allow the complaining witness an adequate opportunity to observe the defendant. New Jersey lawyers arguing the case for a client must address the unique factual circumstances each case presents whether for or against the admissibility of the identification procedure used by law enforcement.

Legal Quote of the Week:

An unrectified case of injustice has a terrible way of lingering restlessly, in the social atmosphere like an unfinished question.

Mary McCarthy, “My Confession”, On the Contrary, 1961

July 3, 2006

UNITED STATES SUPREME COURT PROVIDES FURTHER EXPLANATION TO NEW JERSEY LAWYERS AND ALL CRIMINAL DEFENSE ATTORNEYS OF THE CONCEPT OF “TESTIMONIAL” STATEMENTS UNDER THE 2004 CASE OF CRAWFORD V. WASHINGTON.

In a recent posting, I wrote about the recent interpretation by the Superior Court of New Jersey, Appellate Division, in the case of J.A. wherein NJ Courts interpreted and applied the 2004 case of Crawford v. Washington. In Crawford, Justice Scalia wrote for the U.S. Supreme Court that the Confrontation Clause of the U.S. Constitution bars the admission of testimonial statements of a witness who does not appear at trial and who has not been previously subjected to cross examination.

In the recent decision of Davis v. Washington, also written by Justice Scalia, the Court further refines for NJ lawyers and all defense attorneys what “testimonial” statements are in the context of the Confrontation Clause and the earlier Crawford opinion. The Court considered two domestic violence situations: 1) the complaining witness made statements to a 911 operator during the course of a domestic dispute. The complaining witness subsequently failed to appear at trial and the prosecutor introduced into evidence before the jury a recording of those statements of the complaining witness to the 911 operator. The statement was admissible under the applicable state law. 2) the complaining witness made statements to police under oath after the alleged domestic violence incident occurred. When the complaining witness failed to appear at trial, her statement was introduced as evidence and held admissible under the applicable state law just like in the first situation.

This case is of key interest to all New Jersey lawyers involved in the representation of the accused. The U.S. Supreme Court in the first situation declared the statement admissible under Crawford (ie. the statement was non-testimonial) because it was given to law enforcement for the primary purpose of assisting police deal with an ongoing emergency. In the second situation, the statement was deemed testimonial and therefore inadmissible under Crawford because, from an objective point of view, it was not made as result of an ongoing emergency and the primary purpose of the statement was to allow law enforcement to obtain evidence potentially relevant to criminal charges against the defendant. The distinction drawn by the Court between testimonial and non-testimonial hearsay for purposes of applying the Confrontation Clause under Crawford is an objective test and one that an NJ lawyer should be ready to apply upon an effort to introduce hearsay against a defendant in New Jersey.

Respectfully Submitted,
JFR

Legal Quote of the Week:

Our protection against all kinds of fanatics and extremists, none of whom can be trusted with unlimited power over others, lies not in their forbearance but in the limitations of our Constitution.

Robert H. Jackson, American Communications Association v. Douds, 339 U.S. 382, 439 (1950).

June 28, 2006

NEW JERSEY LAWYERS CONSIDER RECENT NJ SUPREME COURT ON JURISDICTION IN CRIMINAL MATTERS HEARD BEFORE THE COURTS OF NEW JERSEY- “TERRITORIAL JURSIDICTION” DEFINED IN A MURDER CASE

New Jersey lawyers who practice criminal law before the state and federal courts in New Jersey usually do not argue about one of the fundamental precepts: states have the power to prosecute crimes that occur within the territorial jurisdiction of the state. In the typical case, there is no dispute regarding where the alleged crime is to have occurred.

In a rare decision on the issue, the New Jersey Supreme Court has held that, when there is a legitimate issue as to the location of the alleged crime, the matter is properly submitted to the jury for consideration as to whether the government has proven the element beyond a reasonable doubt- the standard burden of proof for the government, federal or state, in any criminal proceedings. A New Jersey lawyer representing a Defendant in a criminal case in NJ should request an appropriate charge to the jury on the issue of jurisdiction (ie. where did the crime allegedly occur?) when there is a “rational basis” to suggest that the crime may have occurred outside of New Jersey.

The New Jersey Supreme Court, in a unanimous opinion written by Justice Barry T. Albin, went even further, “If a reasonable doubt about the location of the crime is clearly indicated in the record, then, even in the absence of a request by counsel, the court should instruct the jury on territorial jurisdiction.” There is no doubt that jurisdiction is an element of any crime alleged to be properly heard before a court in the State of New Jersey.

In the case before the NJ Court, a Defendant was convicted of the murder of an exotic dancer at a motel room in Levittown, Pennsylvania. The Defendant was found guilty of murder in Burlington County, New Jersey as the body was found underneath the Delaware River Turnpike Bridge in Burlington Township, New Jersey about 50 yards from the river’s edge. Investigators surmised that the Defendant threw the woman’s body from the bridge. At trial, the Defendant did not contest jurisdiction in any fashion. As such, the New Jersey Supreme Court held that the NJ trial court judge is not “required to comb through evidence to raise a lack-of-jurisdiction defense that defendant, apparently, did not consider tenable.”

Respectfully Submitted,
JFR

Legal Quote of the Week:

Ghost, Murder most foul, as in the best it is: But this most foul, strange and unnatural.

Shakespeare Hamlet, I, 5, 1600-1601

June 11, 2006

NEW JERSEY LAWYERS PONDER RECENT NJ COURT OF APPEALS CASE INTERPRETING RECENT U.S. SUPREME COURT DECISION IN CRAWFORD V. WASHINGTON BY DENYING TO APPLY CRAWFORD UNDER THE TOTALITY OF THE CIRCUMSTANCES PRESENTED TO THE NEW JERSEY APPELLATE COURT.

The Supreme Court of the United States back in 2004 rendered a ground breaking decision regarding the admissibility of testimonial hearsay evidence. In that case, the Court held that testimonial hearsay may not be admitted against a defendant in a criminal trial unless the declarant (i.e. the person making the statement) is unavailable and the defendant had a prior opportunity for cross examination. The Court reasoned that the Confrontation Clause of the Sixth Amendment to the United States Constitution requires such a standard. NJ Lawyers have awaited some guidance on the application of this decision to New Jersey trial practice and have been given only one recorded case (a trial court decision from 2005) excluding business records from the scope of the Crawford opinion.

Further guidance has been given to New Jersey lawyers recently in the case of State of New Jersey in the Interests of J.A.. In that case, the NJ prosecutor introduced at trial an excited utterance of a person not present to testify. Hence, the declarant (i.e. the person making the excited utterance) was unavailable to testify at the trial but the defendant (i.e. J.A.) did not have an opportunity prior to the trial to cross examine the declarant regarding the statement. The NJ Appellate Court decided that, in order to decide the applicability of Crawford, a New Jersey Court must look to the type of statement, the intent of the declarant and the purpose of the official procedure used to elicit the statement. Taken under the totality of the circumstances, would an objective witness believe that his or her statements would be later used by the State of NJ at a criminal trial?

The New Jersey Court in J.A. held that the excited utterance in the case before the Court was a spontaneous statement given to assist NJ law enforcement to assist in an investigation of a crime and not, from an objective point of view, be given with the anticipation of being used by a New Jersey prosecutor later at a criminal trial largely because the statement did not have the formal structured manner of a statement typically given to the law enforcement. However, the New Jersey Appellate Court relied upon, in reaching the decision, two cases from other jurisdictions- namely Washington State and Indiana- that are currently under review by the United States Supreme Court and may alter once again the analysis of the admissibility of testimonial hearsay at a criminal trial in New Jersey.

Respectfully Submitted,
JFR

Legal Quote of the Week:

Challenging an expert and questioning his expertise is the lifeblood of our legal system- whether it is a psychiatrist discussing mental disturbances, a physicist testifying on the environmental impact of a nuclear power plant, or a General Motors executive insisting on the impossibility of meeting Federal anti-pollution standards by 1975. It is on the only way a judge or jury can decide whom to trust.

David J. Bazelon, American Jurist, Chief Judge, U.S. Court of Appeals, Dallas Times Herald, May 13, 1973.

May 29, 2006

NEW JERSEY LAWYERS CONSIDER RECENT THIRD CIRCUIT OPINION UPHOLDING DUE PROCESS OF LAW FOR ASYLUM SEEKERS IN IMMIGRATION PROCEEDINGS PROTECTING THE RIGHTS AND DIGNITY OF THOSE WHO TURN TO THIS COUNTRY FOR PROTECTION.

The United States Third Circuit, based in Philadelphia, Pennsylvania, recently decided two cases which uphold the right of an asylum seeker, in a hearing before an Immigration Law Judge to have the matter decided in a fair and impartial manner. The two cases, Cham v. Attorney General and Shah v. Attorney General, both set forth the fundamental concept that a trial cannot be decided by a bias fact finder or decision maker.

In Cham, the Court began the opinion with the following quote from another case decided by the Seventh Circuit (Iliev v. INS):

It is a hallmark of the American system of justice that anyone who appears as a litigant in an American courtroom is treated with dignity and respect…. In a country built on the dreams and accomplishments of an immigrant population, a particularly severe wound is inflicted on that principle when an immigration matter is not conducted n accord with the best of our tradition of courtesy and fairness.

With that background, the Court reviewed the courtroom decorum of the Immigration Law Judge and found his conduct falling far below the standard. The Judge made conclusions regarding the case prior to any testimony and berated the petitioner while testifying before the Court. For example, in the Cham matter, the petitioner based his application on his relationship with his uncle- a former president of Gambia until 1994 and his association with a political party that has been outlawed since his uncle was overthrown. Four uncles of the petitioner had previously been arrested and/or attacked for their previous affiliation with the former president and the political party. In the Shah matter, the petitioner’s father was killed in Pakistan for political affiliations and, as a result, the whole family had been dislodged from the family home and given death threats as well.

NJ Lawyers frequently must cope with a host of complex and ever changing legal standards to apply in the context of representing a particular client. New Jersey Lawyers, and lawyers throughout the country, need an unbiased and independent forum upon which to resolve matters of tremendous importance to clients- the most important of which is the potential loss of personal freedom. Reliable evidence cannot be simply ignored because it does not comport with a conclusion that was reached prior to the presentation of any evidence.

The Third Circuit, in both cases, sent the cases back to the trial level for a new hearing and recommended that a different judge be assigned to hear the matters.

Legal Quote of the Week

Bad men, like good men, are entitled to be tried and sentenced in accordance with the law…..

Hugo L. Black, Green v. United States, 365 U.S. 301, 309-310 (1961).

May 22, 2006

NEW JERSEY LAWYERS CONSIDER IMPACT UPON NJ ATTORNEY-CLIENT COMMUNICATIONS IN LIGHT OF RECENT THIRD CIRCUIT COURT OF APPEALS DECISION UPHOLDING THE ISSUANCE OF SUBPOENA TO CRIMINAL DEFENSE LAWYER AS PART OF A GRAND JURY INVESTIGATION INTO CLIENT’S AFFAIRS

Rule of Professional Conduct 1.6- Confidentiality of Information- governs if and when a New Jersey attorney is required to reveal confidences of a client learned in the context of an NJ Attorney-Client relationship. As a general matter, an NJ Lawyer shall not reveal information relating to the representation of a client. There are, however, important exceptions. One exception, commonly referred to as the crime-fraud exception, mandates that New Jersey lawyers reveal confidential information to the “proper authorities” if the lawyer believes the disclosure necessary to prevent the client or another person from a committing a crime that the lawyer reasonably believes is likely to result in death or serious bodily injury to another or a fraud that the attorney reasonably believes will result in substantial injury to the financial interests of another.

In the context of federal law, the crime-fraud exception to the general rule of confidentiality of all NJ Lawyer-Client communication, requires that the client intended to commit a crime or was in the process of committing a crime or fraud and the otherwise privileged NJ Lawyer-Client communication was used in furtherance of the crime or fraud. In the context of a New Jersey federal criminal case, the government must make a “prima facie” showing that the elements of the exception to NJ attorney-client communication. In the case before the Third Circuit, In re Grand Jury Investigation, an attorney was subpoenaed by the government to produce notes of interviews with his client and to testify before the Grand Jury as to information learned from the client during the course of the lawyer’s representation of the client. The client allegedly destroyed emails after an attorney discussed an outstanding subpoena previously issued by the government. There was no evidence that the attorney participated in the destruction or that the client took action to destroy the emails as a result of communication with the attorney. In spite of these facts, the Third Circuit affirmed a District Court’s decision finding that a prima facie case had been shown by the government in that, as stated by the District Court, “evidence which, if believed by the factfinder, would be sufficient to support a finding that the elements of the crime-fraud exception were met.”

A New Jersey lawyer needs to discuss all matters with his or her client, in an effort to successfully represent the client, without fear of subsequent disclosure of the information provided by the client. Open and frank discussion assists in the proper administration of justice by enabling the NJ Lawyer to provide proper and effective representation under the circumstances of the case. Any limitations on that exchange of information dangerously impedes the lawyer’s ability to function properly. There are well recognized exceptions which appropriately address issues beyond the necessity of an NJ Lawyer to obtain information from the client. Those exceptions, however, need a narrow interpretation limited exclusively to matters involving crime and fraud perpetrated by the client.

Respectfully Submitted,
JFR

Legal Quote of the Week:

From your confessor, lawyer and physician, Hide not your case nor no condition.

Sir John Harrington, English writer, Metamorphosis of Ajax, 1596

May 15, 2006

NEW JERSEY LAWYERS HAVE NEW UNITED STATES SUPREME CASE STRIKING DOWN LIMITS ON A DEFENDANT’S RIGHT TO INTRODUCE THIRD PARTY GUILT BEFORE A JURY AS A DEFENSE TO THE CHARGES ALLEGED AGAINST THE DEFENDANT.

In his first opinion as a Justice of the Supreme Court of the United States, Justice Samuel Alito, Jr., writing for a unanimous Court, held that a South Carolina law that automatically excludes evidence sought to be introduced by the Defendant is inadmissible in cases where the prosecutor has strong forensic evidence of the guilt of the Defendant. Third party guilt evidence when introduced by an accused person as a defense to the criminal accusation typically is evidence that tends to point to the commission of the offense by another person other that the accused. Admissibility of evidence that another person actually did the crime is typically left to the sound discretion of the trial judge who must weigh whether the strength of the third party guilt evidence is outweighed by risk of confusion and delay to the trial. The more relevant and credible the evidence of the third party guilt, the more likely a trial judge, including a Superior Court of New Jersey Judge hearing the arguments of a New Jersey lawyer, will weigh the factors more in favor of admissibility of the evidence as a matter of fundamental fairness to the Defendant.

The South Carolina law in question provided for an automatic exclusion of third party guilt evidence in cases where the prosecution has strong forensic evidence that the Defendant committed the crime. The automatic nature of the exclusion, without any of the traditional weighing by the trial court judge, made the law unconstitutional as a Defendant has a right to present a complete and comprehensive defense. As Justice Alito wrote: “By evaluating the strength of only one party’s evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt.” This ruling provides NJ Lawyers with a constitutional foundation to argue in favor of the admissibility of the third party guilt even in light of forensic evidence allegedly pointing to the Defendant as the person who committed the crime.

Respectfully submitted,
JFR

Legal Quote of the Week:

My friend—had to save him. The evidence of a woman devoted to him would not have been enough—you hinted as much yourself. But I know something of the psychology of crowds. Let my evidence be wrung from me, as an admission, damning me in the eyes of the law, and a reaction in favor of the prisoner would immediately set in.

Agatha Christie, Witness for the Prosecution, 1924

May 8, 2006

NEW JERSEY LAWYERS PLANNING AN OPENING STATEMENT BEFORE AN NJ JURY IN A CRIMINAL CASE CAN HAVE TIME LIMITS IMPOSED BY THE JUDGE IF THE LIMITS ARE FAIR AND REASONABLE GIVEN THE ISSUES OF THE CASE.

The opening statement is a critical part of any trial. It is the first opportunity for an NJ Lawyer to address the jury directly, outline key facts expected to be proven through witness testimony or documents admitted into evidence during the course of the trial and to develop a rapport with the jury setting the foundation for trust in the New Jersey lawyers conduct throughout the entire trial. The New Jersey Appellate Division, however, recently in State v. Tilghman, allowed NJ Judges to limit the time for opening statements in criminal cases where the contested issues are not complicated, the number of witnesses is small and judge believes justice requires such a limitation. Even before the decision, it is well recognized in New Jersey that a judge must always maintain decorum in the courtroom during the course of the trial, including opening statements. New Jersey Court Rule 1:7-1 provides additional guidance on the proper presentation of an opening statement to the jury. A defendant has the choice whether or not to make an opening statement and the statement, if given, shall take place immediately after the government gives an opening statement. There is no guidance, however, as to the length of time that is appropriate to allot to the defendant’s opening statement.

In the recent Appellate Court decision, the New Jersey Judge can provide time limitations on the opening statement of the defendant. In the case, the NJ criminal defense attorney requested an hour to make an opening statement but the judge limited the time of both the government and the defendant to 20 minutes each given the complexity of the case and the anticipated evidence. After speaking for 30 minutes, the judge gave the defendant’s attorney a two-minute warning. The judge also remarked, “Give these jurors break, huh, please”, and “This isn’t a filibuster.” The Appellate Court criticized these remarks as inappropriate from the bench but determined that the error was not sufficiently serious to warrant a reversal of the defendant’s conviction.

Respectfully submitted,
JFR

Legal Quote of the Week:

The brilliant, ruthless F.E.Smith, afterwards Lord Chancellor Birkenhead, was a master of the unanswerable riposte. Once when he was starting an opening speech for a plaintiff an impatient judge interrupted him saying: “I’ve read the pleadings in this matter and I don’t think much of your case.” “Oh, I’m very sorry to hear that my lord”, replied Smith smoothly, “but you’ll find that the more you hear of it the more it will grow on you.” On another occasion a judge unwisely said to Smith who was opening a complicated case: “I’ve listened to you for an hour and I’m none the wiser.” “None the wiser, perhaps, my lord,” said Smith, “but certainly better informed.”

Frederick Edwin Smith, English jurist, Lord Chancellor 1872-1930
Francis Cooper “London Letter”, New York Law Journal, August 28, 1961

May 1, 2006

UNITED STATES SUPREME COURT REFLECTS UPON “MY COUSIN VINNY” IN DECIDING TO WHAT EXTENT A DEFENDANT CHARGED WITH A CRIME HAS A RIGHT TO COUNSEL OF HIS OR HER CHOICE REGARDLESS OF THE QUALIFICATIONS OF THE LAWYER OF CHOICE

The 1992 movie “My Cousin Vinny” involved two friends, Bill and Stan, on trial for murder in Alabama. Bill’s family from New York sends a cousin, Vinny, to defend them and it just happens to be Vinny’s first case as a lawyer. Justice Scalia, referring to “My Uncle Vinny”, used the movie as an example in oral argument before the Supreme Court in a case that may have ramifications for New Jersey Lawyers. The case, United States v. Gonzalez-Lopez, involved the question of how extensive is the right of a criminal defendant, in New Jersey and elsewhere, to be represented by the attorney of his or her choice? The Justices seem to agree in oral argument that the right is extensive even enough to allow for an otherwise inexperienced lawyer (ie. a real estate lawyer or the like) to represent the Defendant if that is in fact the choice of the Defendant. A majority seemed to agree that a defendant can pick a lawyer who is an inexperienced relative- just like the movie- or a lawyer bent on making an outlandish argument and such a choice is a constitutionally protected right of the defendant.

Of interest to NJ Lawyers, Justice Souter tied the defendant’s right to an attorney of choice as being part of the Sixth Amendment right to counsel which includes, among other rights, the right to choose the direction of his or her defense. Justice John Paul Stevens remarked that the “autonomy interest is powerful” and describing the experience of any defendant charged with a criminal offense anywhere in the country including a New Jersey state or federal court as being “very traumatic.”

Counsel of choice by the Defendant is a key right that the United States Supreme Court recognized in oral argument in this case. Decisions about the course of the defense have to be made from the very beginning and the relationship between New Jersey lawyer-client is the key relationship in deciding what direction the defense will take for the benefit of the client. As such, the comfort and trust level the client has for a particular attorney is a paramount consideration in choice of counsel which does have constitutional dimensions under the Sixth Amendment.

Respectfully Submitted,
JFR

Legal Quote of the Week:

I should, indeed, prefer twenty guilty men to escape death through mercy, than one innocent to be condemned unjustly.

Sir John Fortescue, English jurist, Chief Justice, De Laudibus Legum Angliae, c. 1470

April 24, 2006

NEW JERSEY LAWYERS SEEKING A FAIR TRIAL FOR A DEFENDANT ACCUSED OF A CRIME MUST DEMAND THAT THE DEFENDANT AND EVEN WITNESSES APPEARING AGAINST THE DEFENDANT MUST NOT APPEAR AT THE TRIAL IN PRISON GARB UNLESS COURTROOM SECURITY OTHERWISE REQUIRES IT.

It is well settled in New Jersey courtrooms that a Defendant who is otherwise incarcerated at the time of trial because of either the inability of the Defendant to post bail or an outright denial of bail in some limited circumstances must not appear in front of the jury during trial dressed in a prison outfit or handcuffed/shackled in any way. The constitutional right to a fair trial demands that the appearance of the Defendant not send a message to the jury that the Defendant is already guilty by being presented in the courtroom already dressed in a prison outfit. The only exception is for the exceptional case when security in court is such a serious concern that the Defendant’s right to a fair trial is outweighed by the security concerns. Even if the security concerns exist and require the Defendant to be restrained and/or dressed in prison clothing, the NJ Judge must instruct the jury explicitly and in detail that the appearance of the Defendant is not to be considered by the jury in the deliberations (otherwise known as a limiting instruction).

New Jersey Lawyers representing those accused of a crime in NJ now have an additional consideration: the New Jersey Appellate Court has recently extended that concept of appearance and the impact upon the jury to witnesses that appear to testify against the Defendant. As such, a Defendant in an NJ court has his or her right to a fair trial violated if the witness against him appears before the jury dressed in a prison outfit and/or handcuffed/shackled. The NJ Supreme Court had previously extended the rule to witnesses that appear for the Defendant.

The Appellate Division held that the appearance of the Defendant. "served to de-individualize him, permitting the jury to consider him simply as one of the "criminal class." Transference of this mind-set to the defendant at a time when the presumption of innocence applied to him would be wholly inappropriate and fundamentally unfair."

Respectfully Submitted,
JFR

Legal Quote of the Week:

Due process is a growth too sturdy to succumb to the infection of the least ingredient of error.

Benjamin Cardozo, Roberts v. New York, 295 U.S. 264, 278 (1935).

April 17, 2006

NEW JERSEY LAWYERS WEIGH IMPACT OF NJ SUPREME COURT RULING UPHOLDING THE ADMISSIBILTY OF STATEMENTS MADE BY A SUSPECT TO LAW ENFORCEMENT UNDER EMERGENCY SITUATIONS IN OTHERWISE POSSIBLE VIOLATION OF MIRANDA RIGHTS OF THE SUSPECT.

NJ Lawyers who practice in the field of criminal defense weigh the impact of a recent New Jersey Supreme Court decision impacting the admissibility of statements given to police by a suspect. Upon arrival at the apartment of the suspect, law enforcement was advised by the suspect that he wanted the opportunity to speak with his attorney who happened to be on the phone with the suspect when the police arrived. The police refused to allow the suspect to speak with the attorney and proceeded to ask him questions about his spouse who happened to also be present at the same time in the apartment and bleeding on a couch. Later, law enforcement arrested the suspect and then provided Miranda warnings to him. He was later indicated for murder and convicted earlier this year.

The New Jersey Supreme Court began the analysis of the case by stating that the questions asked by the police to the suspect upon arrival at the scene did not equate to “interrogation.” Law enforcement is not required to give a suspect Miranda warnings unless the suspect is subject to “custodial interrogation.” In this instance, the NJ Supreme Court held that the on the spot questioning of the suspect in an attempt by the police to deal with an emergency is not “interrogation” for purposes of applying the right to Miranda warnings.

As the Court held: “In sum, the police officer’s emergency aid trumps the application of Miranda and its protection of defendant’s privilege against self-incrimination.” In addition, the Court characterized the suspect’s invocation to right to counsel as ambiguous and hence “ineffective in an emergency-aid setting.”

Respectfully Submitted,
JFR

Legal Quote of the Week:

There is no refuge from confession but suicide; and suicide is confession.

Daniel Webster, Argument on the murder of Captain White, April 6, 1830

April 10, 2006

NEW JERSEY LAWYERS CONSIDER IMPACT OF RECENT UNITED STATES SUPREME COURT CASE PREVENTING A SPOUSE FROM WAIVING THE FOURTH AMENDMENT PRIVILEGE AGAINST UNREASONABLE SEARCH AND SEIZUREOF THE OTHER SPOUSE IN THE CONTEXT OF THE SEARCH OF A PRIVATE RESIDENCE WHERE A REASONABLE EXPECATION OF PRIVACY IS HIGH

In a split decision (5-3), the United States Supreme Court upheld a decision by the Georgia Supreme Court suppressing evidence seized during the search of a private residence in spite of the fact that one spouse consented while the other spouse expressly and unequivocally did not consent.

The Court, in the majority opinion, cited the ancient notion that a man’s house is his castle as the foundation to suppress evidence of cocaine found within the house. As the Court held: “Since the co-tenant wishing to open the door to a third party has recognized authority in law or social practice to prevail over a present and objecting co-tenant, his disputed invitation, without more, give a police officer no better claim to reasonableness in entering than the officer would have in the absence of any consent at all.” The presence of the co-tenant (in this case, a spouse) is vital to the outcome of the case. If the co-tenant is otherwise not present at the initial verbal exchange with the police, the Fourth Amendment privilege may be overcome by the consent of the other co-tenant. That is truly a fine line to draw on the exercise of the exercise of such a vital constitutional right. In other words, the police seemingly have no independent obligation to seek the input of the co-tenant if the co-tenant is not contemporaneously present at the time of the initial exchange with the other co-tenant and police.

Chief Justice Roberts penned a dissent criticizing the fine line as giving “protection on a random and happenstance basis, protecting, for example, a co-occupant who happens to be at the front door when the other occupant consents to the search, but not one napping or watching television in the next room.”

Respectfully submitted,
JFR

Legal Quote of the Week:

…on a question of public policy, it is no disrespect to the Supreme Court to say that the majority of the Court were mistaken. There is no reason why five gentlemen of the Supreme Court should know better what public policy demands than five gentlemen of Congress.

Louis D. Brandeis, 1856-1941, Aplheus Thomas Mason, Brandeis, A Free Man’s Life, 1946

March 27, 2006

NEW JERSEY LAWYERS CONSIDER THE IMPACT OF A SEQUESTRATION ORDER IN LIGHT OF THE RECENT SANCTIONS IMPOSED IN THE ZACARIAS MOUSSAOUI TRIAL WHERE A FEDERAL COURT JUDGE BARRED THE GOVERNMENT FROM INTRODUCING THE TESTIMONY OF NUMEROUS WITNESSES DUE TO A VIOLATION OF THE ORDER.

In the trial of Zacarias Moussaoui, a government lawyer provided trial transcripts to scheduled government witnesses with editorial comments that the “mistakes” of prior witnesses should not be repeated. The Judge had previously issued a sequestration order prohibiting witnesses from hearing what has taken place in the trial previously. The Judge’s action appropriately penalized conduct that could have unfairly impacted the ultimate outcome of the most critical decision a jury can make: whether a defendant should spend the rest of his life in jail or be executed by the government for the crime committed.

In New Jersey, the NJ Rules of Evidence under Rule 615 addresses the issue of sequestration orders when issued by a Judge of the Superior Court of New Jersey. The purpose of sequestration is to prevent prospective witnesses from hearing what the other witnesses detail in their testimony in order to prevent the prospective witness from tailoring his or her testimony to what the earlier witnesses presented in the courtroom. The right of sequestration is even alluded to in the NJ Constitution under Paragraph 22 of Article 1: “A victim of a crime shall not be denied the right to be present at a public judicial proceedings except, when, prior to completing testimony as a witness, the victim is properly sequestered in accordance with law or the Rules Governing the Courts of the State of New Jersey.”

According to a New Jersey Appellate Court case, where there are violations of a sequestration order, the trial judge “should promptly conduct a voir dire out of the presence of the jury in order to ascertain the nature and extent of the violation… thereupon determine what remedial action is required, if any, in light of all the circumstances.” While there is no automatic exclusion of the witness testimony in New Jersey for a violation of a sequestration order, it is an available remedy to the trial judge if necessary in order to ensure a fair trial under the circumstances.

Legal Quote of the Week:

The first requirement of a sound body of law is, that it should correspond with the actual feelings and demands of the community, whether right or wrong.

Oliver Wendell Holmes, The Common Law, 1881

March 20, 2006

NEW JERSEY LAWYERS REPRESENTING DRIVERS ACCUSED OF DRIVING WHILE INTOXICATED MUST FILE A MOTION TO SUPPRESS THE EVIDENCE OF THE BREATHALYZER TEST RESULTS BEFORE ARGUING THAT THE STATE DID NOT COMPLY WITH THE NOTICE REQUIREMENT OF THE DRIVERS RIGHT TO AN INDEPENDENT TEST

The Breathalyzer is still in use in many towns in New Jersey and, given the recent problems with the use of the new Alcotest with the NJ Supreme Court halting further expansion of the use of the new machine pending a hearing on the device’s scientific reliability, the Breathalyzer still continues to have relevance.

Proof of a violation of the New Jersey Driving Under the Influence statute can come in the form of one or both of the following: proof of the defendant’s physical condition usually through the observations of police officers on the scene and processing the defendant at the station and/or proof of blood alcohol level. As part of the blood alcohol testing procedure, an officer must inform the driver that he or she has a right to a copy of the test results and the right to have an independent test performed. The driver must, as a matter of procedure, file a motion to suppress the admissibility of the test results before arguing the case before the New Jersey Municipal Court that is hearing the case that the officer violated a statutory duty to inform the driver of the right to independent testing.

In the recent NJ Appellate Court opinion of State v. Howard, these issues were decided against the driver who failed to move to suppress the evidence as required under the procedural due process rules governing this type of challenge to the admissibility of the evidence of a statutory violation by the officer.

Respectfully Submitted,
JFR

Legal Quote of the Week:

A good person once said that where mystery begins religion ends. Cannot I say, as truly at least, of human laws, that where mystery begins, justice ends?

Edmund Burke, A Vindication of Natural Society, 1761

March 13, 2006

NEW JERSEY LAWYERS CONSIDER REQUIREMENT FOR CITIZEN COMPLAINT IN NJ MUNICIPAL COURTS UNDER COURT RULES REQUIRING SCRUTINTY OF CITIZEN COMPLAINTS UNDER A PROBABLE CAUSE STANDARD FOR 1) THE EXISTENCE OF AN OFFENSE AND 2) THE IDENTITY OF THE ALLEDGED PERPETRATOR.

It is a fact that most citizens in the State of New Jersey have contact with the NJ system of justice via matters heard before local Municipal Courts in traffic violations or quasi criminal matters involving disorderly persons or petty disorderly persons offenses such as harassment or simple assault charges.

What is required in NJ Municipal Courts for a person to file a disorderly persons or petty disorderly persons offense against another in the State of New Jersey? A so-called “citizen’s complaint” specifically by NJ Court Rule requires a showing of probable cause prior to the issuance of such a complaint. Rule 7:2-2(a)(1) sets forth the procedure which states that such a complaint made be issued only by a judge, or if authorized by the judge, a municipal court administrator or deputy court administrator “only if it appears to the judicial officer from the complaint, affidavit, certification, or testimony that there is probable cause to believe that an offense was committed and the defendant committed it.” The Rule further that if the judicial officer finds no probable cause, the matter shall be reviewed by the judge.

In a recent unpublished decision by the NJ Superior Court, Appellate Division, addressed whether a private citizen has the right to appeal a decision of a New Jersey Municipal Court Judge to dismiss a complaint based upon no probable cause. The Appellate Court could find no provision in the Rules of Court providing a private citizen with such a right to appeal. A prosecuting attorney, however, does have the right to appeal such a dismissal. Under a different Rule of Court, a prosecuting attorney does have the right to appeal the pre-trial dismissal of a complaint. The Appellate Court provided guidance on how a private citizen can seek representation for the purpose of seeking an appeal as a prosecuting attorney with one possible method of seeking private counsel to serve as a prosecutor for the matter via the filing of a “Storm” certification- so named after the case State v. Storm.

In short, access to the Appellate Division should not depend on whether a private citizen files a complaint and the recent case from the Appellate Division provides some guidance on possible avenues a private citizen can pursue upon a denial of probable cause finding by a New Jersey Municipal Court Judge.

Respectfully submitted,
JFR

Legal Quote of the Week:

The most just man in the world may still not act as judge in his own case.

Pascal, Pensees, 1670

March 6, 2006

NEW JERSEY LAWYERS CONSIDER MAJOR REVAMP PROPOSED FOR NJ GUARDIANSHIP LAW ALLOWING FOR GREATER DEGREE OF INDEPENDENCE FOR NEW JERSEY CITIZENS IN NEED OF HEALTH CARE OR FINANCIAL DECISIONMAKING ASSISTANCE.

In a major restructuring of the NJ law of guardianship, a New Jersey Judge should be able to appoint a guardian, upon a finding that an alleged incompetent is incapable of managing his or her financial affairs or unable to manage his or her health care decisions, to one of three categories depending upon the need of the person under the circumstances. The three categories are: a general guardian, a limited guardian of the person or the estate or a special or temporary guardian who could act on behalf of the person’s medical or financial needs as the needs arise.

There are also provisions to increase responsibilities to increase accountability. For example, the incompetent (or ward) must be allowed a degree of participation in decision making if the ward has the ability to participate in such decisions and the ward must be visited every three months to maintain a current knowledge of the ward’s condition. The guardian can also sue on behalf of the ward if appropriate and sell personal property if appropriate to meet current needs. As also stated recently by the New Jersey Supreme Court, Medicaid planning for the ward is lawful including an application for public assistance, Medicaid and Medicare benefits. Financial reports will also be required as well as the implementation of an investment standard for all investing undertaken on the ward’s behalf according to the New Jersey Prudent Investor Act.

With regard to health care, the NJ Judge is required to give weight to a person’s designated surrogate decision-maker, power of attorney, health care proxy and advanced medical directive.

The law represents the ever-growing need for New Jersey to protect the most vulnerable in our State from over-reaching by those who are supposed to serve as their agents and, as such, act in the best interest of those whom they serve without divided loyalties, conflicts of interest or self-dealing by the agent to the detriment of the ward.

Legal Quote of the Week:

Like the effects of industrial pollution and the new system of global financial markets, the AIDS crisis is evidence of a world in which nothing important is regional, local, limited; in which everything that can circulate does and every problem is, or is destined to become, worldwide.

Susan Sontag, AIDS and Its Metaphors, 1983

February 13, 2006

NEW JERSEY CRIMINAL DEFENSE LAWYERS CONSIDER THE PROCEDURAL DUE PROCESS PROTECTION CONTAINED IN THE CONFRONTATION CLAUSE OF THE UNITED STATES CONSTITUTION REQUIRING THAT ANY PERSON ACCUSED OF A CRIME SHALL HAVE THE RIGHT TO CONFRONT HIS OR HER ACCUSER

The Sixth Amendment to the United States Constitution requires that a defendant has the right to confront any person who charges another with criminal conduct. That confrontation, in our system of justice, involves cross examination typically by a criminal defense attorney with the goal of establishing reasonable doubt to whether the defendant is responsible for the alleged criminal conduct.

The right of confrontation is consistently debated in federal and New Jersey courtrooms as to the extent of the right. For example, in Coe v. Iowa, the United States Supreme Court upheld a defendant’s right to have cross examination of a complaining witness in a sexual assault case. The complaining witness testified before the jury from behind a screen to avoid eye contact with the defendant. The U.S. Supreme Court fond the obstruction to have an unconstitutional impact upon the defendant’s right of confrontation. The finder of fact (ie. the judge or the jury) needs an unobstructed view of the witness as testimony include not just spoken language but the body language of the witness as well.

As the U.S. Supreme Court held in the Coe case:

The phrase still persists, “look me in the eye and say that.” Given these human feelings of what is necessary for fairness, the right of confrontation “contributes to the establishment of a system of criminal justice in which the perception as well as the reality of fairness prevails.”

The perception that confrontation is essential to fairness has persisted over the centuries because there is much truth in it. A witness “may feel quite differently when he has to repeat his story looking at the man whom he will harm greatly by distorting or mistaking the facts. …It is always more difficult to tell a lie about a person “to his face” than “behind his back.” In the former context, even if the lie is told, it Confrontation Clause does not, of course, compel the witness to fix his eyes upon the defendant’ he may studiously look elsewhere, but the trier of fact will draw its own conclusions.

Respectfully Submitted:
JFR

Legal Quote of the Week:

A judge steps out of the proper judicial role most conspicuously and dangerously when he or she flinches from a decision that is legally right because the decision is not the one the home crowd wants.

Ruth Bader Ginsberg, Dawn Bradley Berry, The 50 Most Influential Women in American Law, 1996

February 6, 2006

NEW JERSEY FEDERAL CRIMINAL DEFENSE LAWYERS CONSIDER RECENT NINTH CIRCUIT COURT OF APPEALS DECISION UPHELD A 2003 LAW PROHIBITING INTERNATIONAL TRAVEL BY UNITED STATES CITIZENS FOR THE PURPOSE OF PAYING MINORS FOR SEX WHILE TRAVELING ABROAD.

In applying the jurisdictional requirement under the United States Constitution that in order for the federal government to have jurisdiction in a matter the matter must have an impact upon interstate commerce, the United States Court of Appeals for the Ninth Circuit recently took an expansive view of interstate commerce to find a 2003 federal law prohibiting international travel for the purpose of having sex with minors as a valid exercise of the federal government under the interstate commerce clause.

By taking a “global, common sense” approach, Judge Margaret McKeown wrote the opinion for the Court which held that not only would travel for sex with minors be criminal and immoral but also, most importantly for jurisdictional purposes for the federal courts, it is commercial. The case is an expansion of last years’ United States Supreme Court decision holding that the interstate commerce clause jurisdictional requirement allows the federal government to prohibit marijuana use in states that have legitimized the use of the narcotic for medical purposes.

The case challenged the first successful prosecution under the 2003 PROTECT (Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today) which prohibits U.S. citizens from paying minors for sexual favors while abroad. The case stemmed from the conviction of a U.S. citizen living in Cambodia who admitted to paying minors for sex while living in that country.

Respectfully Submitted,
JFR

Legal Quote of the Week:

What passes in the mind of man is not scrutable by any human tribunal; it is only to be collected from his acts.

Sir John Willes, English Jurist, King v. Shipley, (1784), 3 Doug. 177

January 30, 2006

NEW JERSEY LAWYERS MUST AVOID BASING PREEMPTORY CHALLENGES IN JURY SELECTION ON GENDER, RACE AND AGE GROUNDS OR RISK A MISTRIAL AND SANCTIONS FOR MISUSE OF THE JURY SELECTION PROCESS BUT A TRIAL JUDGE MUST USE CAUTION WHEN RAISING THE ISSUE WITHOUT MOTION FROM COUNSEL

In a recent Appellate Court decision, involving a New Jersey Superior Court Judge from Middlesex County who presided over a personal injury trial raised the issue of potential misuse of preemptory challenges in jury selection under the United States Supreme Court case of Batson v. Kentucky and the New Jersey counterpart of State v. Gilmore. Under the typical scenario, opposing counsel will raise the issue before the trial court that he or she believes that the adversary is using preemptory challenges to exclude members of the potential jury pool on the basis of age, gender or race. The challenging lawyer must establish a pattern or other grounds in support of the allegation. If the NJ trial court judge agrees with the challenge that, at the very least, there are grounds to conclude that the other lawyer used preemptory challenges on an unconstitutional fashion, then the burden shifts to the lawyer accused of bias to set forth before the Court that he or she had reasons beyond bias for excusing the jurors in a particular instance. Each exercise of a preemptory challenge will be examined an the accused lawyer must set forth alternative grounds, other than bias, to justify the exercise of the preemptory challenge. If the New Jersey trial court judge believes the non-bias explanation, the trial moves forward. If the explanation is not accepted, a mistrial is usually the remedy.

Judges can raise the issue of potential bias in jury selection without a motion from counsel but, before doing so, the NJ judge must articulate reasons for the initial belief that bias may be occurring in the jury selection process. A fair and impartial trial is the goal of the judicial process in New Jersey and ridding the jury selection process of the exercise of preemptory challenges on the basis of bias is an important part of the process.

Respectfully Submitted,
JFR

Legal Quote of the Week:

Every new tribunal, erected for the decision of facts, without the intervention of a jury…. is a step towards establishing aristocracy, the most oppressive of absolute governments.

Sir William Blackstone, Commentaries on the Laws of England, 1765-1769

January 23, 2006

NEW JERSEY LAWYERS PONDER DECISION BY NJ SUPREME COURT EXPANDING CONSTITUTIONAL SEARCH AND SEIZURE PROTECTIONS BEYOND THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION

Upholding a clearly defined trend of the New Jersey Supreme Court, NJ law enforcement was held not to have unlimited freedom to conduct a search of an automobile incident to an arrest after the occupants were removed from the vehicle and placed securely in the custody of law NJ law enforcement. The Court specifically relied upon Article 1, paragraph 7 of the New Jersey Constitution to reach the result, not the U.S. Constitution Fourth Amendment as interpreted more narrowly by the United States Supreme Court for the past several decades. The federal case law upholding the search of vehicle incident to arrest under a broad array of circumstances begins with New York v. Belton (1981) and continues unabated today.

New Jersey, however, is not alone in providing citizens greater protection. Massachusetts, New York, Nevada, New Mexico, Pennsylvania and Oregon have also followed suit and belted from the restrictive interpretation of governmental search and seizure enunciated in Belton. According to the NJ Supreme Court, exigent circumstances and probable cause are two vital components of any effort of police to circumvent the warrant requirement and search an automobile incident to the arrest of occupants. The Justices emphasized, in a unanimous decision, that under the facts and circumstances of the case before them, a warrant could have obtained by telephone and that the car in question could easily be impounded pending the receipt of the warrant. Hence, exigent circumstances did not exist allowing the police to avoid the constitutional necessity of obtaining a warrant prior to a search and seizure in an area where there is a legitimate expectation of privacy such as an automobile.

The Court summarized: “To us, a warrantless search of an automobile based not on probable cause but solely on the arrest of a person unable to endanger the police or destroy evidence cannot be justified under any exception to the warrant requirement and is unreasonable.”

Respectfully Submitted,
JFR

Legal Quote of the Week:

What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.

Thomas Jefferson, Letter to W.S. Smith, November 13, 1787

January 16, 2006

NEW JERSEY LAWYERS CONSIDER NEED FOR PROCEDURAL DUE PROCESS FOR WARRANTLESS DOMESTIC WIRETAPS OF UNITED STATES CITIZENS IN THE CONTEXT OF UNITED STATES SUPREME COURT PRECEDENT DATING BACK TO THE NIXON ADMINISTRATION

Judicial authorization prior to wiretapping telephone conversations between United States citizens is provided for by the Foreign Intelligence Surveillance Act (FISA) in 1978, establishing the FISA Court in Washington, D.C., a special court authorized to issue secret warrants for the gathering of national security intelligence. FISA further allows the attorney general to authorize electronic surveillance without a warrant for a limited period of time and upon notice to the FICA Court “so long as there is not substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.”

In United States v. United States District Court, the Supreme Court of the United States held by unanimous decision that the Fourth Amendment prohibition against illegal search and seizures could not be circumvented by executive branch authorization of wiretapping of United States citizens without judicial oversight. The Court feared dampening vigorous public discussion regarding their government’s activities. As Justice Lewis Powell opined “The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of government action in private conversation.”

Due process and the checks and balances between governmental branches, the hallmarks of a democracy, must be maintained in order to ensure the integrity of government in service to the people. The warrant requirement is one such example. The Supreme Court further noted that: “We cannot accept the government’s argument that internal security matters are too subtle and complex for judicial evaluation.”

Respectfully Submitted,
JFR

Legal Quote of the Week:

A good government produces citizens distinguished for courage, love of justice, and every other good quality; a bad government makes them cowardly, rapacious, and the slaves of every foul desire.

Dionysius of Halicarnassus, Antiquities of Rome, c.20B.C.

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