Articles Posted in Constitutional Law

Many attorneys – both defense attorneys and prosecutors – will knowingly try to introduce objectionable material at trial.  The reason for this is simple.  The attorney believes that the jury has to hear it.  It makes a difference in their case, and the effort to introduce it is strategic.  Even if it is met with an objection from the other side, and the objection is coupled with a curative instruction from the Court, what often matters is that the jury heard it and they may be thinking about it.  The system functions on the assumption that the jury follows the Court’s instructions, and will therefore comply with a curative instruction to ignore what was said.  But we all know that in reality, human nature takes over.  Regardless of the Court’s instruction to ignore it, there is every reason to assume that what will ultimately happen is that the jury heard the objectionable material and human nature does the rest.  This is the reality of a criminal justice system that relies upon the thinking and actions of ordinary people.  It may not be consistent with the rules, but the fact is that it happens in criminal trials every day.  A good criminal trial attorney will assume that the jury sees, hears and considers everything without exception, even over their objection and regardless of the court’s instructions.  (And, by the way, counsel should still object and request the curative instruction.  It may not make much of an impact on the jury, but it could be the difference between winning and losing in the Appellate Division.)

The impression that certain objectionable statements made upon the jury was at the heart of the recently decided case of State v. Tung.  There the issue was whether the trial court erred in admitting evidence that the defendant exercised his Fourth Amendment right to refuse to consent to a warrantless search; evidence that the defendant exercised his Fifth Amendment right to counsel; and an interrogating officer’s opinion that the defendant lied.

The Appellate Division reversed the defendant’s convictions for murder, aggravated arson, and other offenses.  At trial, the jury repeatedly heard that during a pretrial recorded statement, the defendant refused to consent to searches of his property, and had requested counsel.  Such references were clearly capable of producing an unjust result at trial because they improperly encouraged the jury to draw negative inferences against the defendant because he had invoked his Fourth and Fifth Amendment rights.  The trial court did not excise these references, and did not provide a cautionary/curative instruction. Continue reading ›

Last year, in State v. RG, our Appellate Division addressed the issue of whether a criminal defendant who is not mentally competent can be involuntarily medicated to restore their competency so that they can proceed with their case.  This was the first time a New Jersey appellate court addressed this issue.  The case provides a valuable opportunity to review some of the basics concerning criminal defendants with mental health issues.

Every defendant is expected to participate in their own criminal case.  This means that they must be able to understand that they have been charged in a criminal court with a criminal offense.  Further, they must be able to recall the facts that gave rise to the case, and have the ability to discuss them in a meaningful way with their attorney.  They must be able to provide defense counsel with any information they may have concerning those facts, as well as defenses to the charges.  They must be able to evaluate plea offers, and to decide whether they wish to resolve their case by way of plea or proceed to trial.  They must have a basic understanding of how a trial works, and their right to testify before a jury.  They must also understand the respective roles of the defense attorney, the prosecutor and the Judge hearing the case.  If they cannot do these things, they may be declared incompetent for purposes of proceeding with their matter.

In New Jersey, a defendant who appears to be incompetent will have to undergo a competency evaluation.  These evaluations are generally conducted by a state psychologist at a public facility known as the Ann Klein Forensic Center.  The psychologist will generate a report that describes the evaluation, and presents findings and conclusions.  If the defendant is deemed competent, the case can proceed.  If the defendant is deemed incompetent, the case will typically be adjourned until the defendant is restored to competency.  As a practical matter, this means that the Judge hearing the matter will list it for a 60-90 day review and, and that time, will see where the defendant stands in terms of fitness to proceed.  (Once the case has gone on long enough, and after a series of court reviews concluding that the defendant remains incompetent, defense counsel should be thinking about moving to dismiss the charges.) Continue reading ›

Our Supreme Court decided State v. Brown on February 4, 2019.  The case is very significant because it addresses the ongoing issue of the State’s obligation to produce discovery in a timely manner.

The facts surrounding the discovery violation and its ramifications in this case are somewhat complex.  Suffice it to say that a week after the start of trial – after jury selection, opening statements and the examination of four State witnesses – the prosecutor produced 18 reports to defense counsel.  These reports concerned facts discussed in the testimony of the officers who had already testified.  The following week, the prosecutor produced yet another item of discovery.  Ultimately, the defendants were convicted of murder, robbery and a weapons offense.  The trial court denied their post-trial motions and imposed sentence, and the Appellate Division affirmed their convictions and sentences.

The Supreme Court reversed and ordered a new trial.  The Court found, among other things, that the State’s failure to produce the underlying discovery items until after the commencement of trial was a violation of Brady vs. Maryland, which requires the State to turn over exculpatory material prior to trial.  The failure to timely provide the discovery at issue to the defense inhibited counsel’s ability to cross-examine witnesses in a meaningful way, to impeach witnesses, and to present exculpatory evidence and evidence of third-party guilt.

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The face of the United States Supreme Court has changed considerably in a relatively short time.  Two very conservative judges – Brett Kavanaugh and Neil Gorsuch – have now joined the bench.  At least in some circles, it was believed that Gorsuch’s appointment would not have a monumental impact since he was replacing Antonin Scalia, who was a reliably conservative vote.  Now that Kavanaugh has been confirmed and sworn in, there is a solid five-judge conservative voting bloc,  As a result, defense attorneys need to be mindful of possible changes in the following areas:

Search and Seizure – The exclusionary rule is a judicial remedy designed to exclude evidence discovered as a result of police misconduct.  Essentially, the rule states that when tainted evidence is obtained as a result of wrongdoing by law enforcement, other evidence stemming from the original evidence is “fruit of the poisonous tree”, and must also be suppressed.  Justice Kennedy, who Kavanaugh replaced, was not a major fan of Mapp v. Ohio, which applied the exclusionary rule to the states.  Kavanaugh’s anticipated opposition to the exclusionary rule may send a message to prosecutors that it is to be overturned.  Given Kavanaugh’s history, do not be surprised if prosecutors start arguing that Mapp is to be reconsidered or overruled.  In fact, there may now be five votes on the Court that would hold in this way.  This momentous change would, in essence, allow law enforcement officers to ignore constitutional protections when collecting evidence.

Gun Rights – The Court previously took relatively few gun cases, but its new conservative majority will probably start reading the Second Amendment more broadly.  As a result, there will almost certainly be more cases that address the scope of gun control.  In fact, Justices Thomas and Alito, as well as Justice Gorsuch, have previously sought unsuccessfully to rule on more Second Amendment cases.  With Kavanaugh now on the bench, the “rule of four”, which allows four of the nine justices to grant cert, would be satisfied thereby adding additional gun control cases to the Court’s docket.  Thus, open issues, such as whether the right to bear arms outside the home, may be addressed.  The Court may also be asked soon to rule on issues concerning concealed carry permits, and on the validity of laws banning assault rifles. Continue reading ›

The United States Supreme Court decided Carpenter vs. United States on June 22, 2018.  This is a major Fourth Amendment decision which requires law enforcement to obtain a warrant to get cell phone service provider records that can show a user’s movements.

The broad facts of the case are not complicated.  The police arrested four men in connection with a series of armed robberies in April, 2011. One of the men confessed and gave his cell phone number and the numbers of the other actors to law enforcement. This information was used to apply for court orders to obtain “transactional records” for each phone number.  The applications were granted under the Stored Communications Act, which provides that the government may require the disclosure of certain telecommunications records when “specific and articulable facts show[] that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” The transactional records included the dates and times of calls, and the approximate location where calls were made based on the user’s relative location to cell towers.  Such material is referred to as “cell site location information” or  “CSLI”.

Based on the CSLI, the government charged Carpenter with, among other offenses, Hobbs Act robberies (e.g., robberies that affect interstate commerce).  Carpenter moved to suppress the CSLI evidence on Fourth Amendment grounds, asserting that a warrant was required to obtain the records.  The district court denied Carpenter’s motion, and the Sixth Circuit affirmed.

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Generally speaking, there are two broad categories of searches.  Either a search can be made with a search warrant, or it can be warrantless.  Our law prefers searches that are made pursuant to a warrant.  A warrantless search will be valid only if the search and seizure activities fall within one of the recognized exceptions to the warrant requirement, each of which has its own detailed requirements.

Evidence seized pursuant to a search conducted with a warrant is, as a general rule, harder to suppress than evidence seized without a warrant.  Defense counsel must carefully review the warrant paperwork, which consists of an application submitted in support of the warrant, the warrant itself, and the return on the warrant, so as to locate defects in the application process that can serve as the basis for a suppression motion.  The identification of such defects was the basis for the recent New Jersey Supreme Court decision in State v. Boone, which was decided on December 18, 2017.

Boone faced a series of narcotics and weapons charges stemming from contraband that the police located in his Hackensack apartment in August, 2012.  The search of his apartment was conducted pursuant to a warrant.  Boone moved for an order suppressing the evidence since the warrant application lacked any information as to why his specific unit should be searched. Continue reading ›

Our personal information is constantly being collected by third parties without our realization.  Every time we use one of our devices, we expose personal details and information to collection by any number of entities that use the data for various purposes.  Privacy is clearly on the decline as the use of one device or another becomes a standard and unavoidable part of life.  An individual cannot be part of modern society absent a cell phone and/or computer.  These facts all have serious implications for criminal defendants.

In 1979, the United States Supreme Court decided Smith v. Maryland.  There the Court discussed what has become known as the “Third Party Doctrine”, which provides that individuals do not have a reasonable expectation of privacy in information voluntarily given to a third party (e.g., telephone carrier or bank).  This information is then available to Government agencies, including law enforcement agencies.

The Court is now scheduled to hear a case that asks what the police and prosecutors can legitimately do with personal data that is collected from third parties.  Carpenter v. United States could greatly alter Fourth Amendment principles and procedures as they must be applied in cases involving data resulting from the use of cellphones, computers, and similar devices. Continue reading ›

The last United States Supreme Court term ended with some noteworthy criminal decisions.  One of these was Jae Lee v. United States, decided on June 23, 2017.  This is the latest case from the High Court to address the issue of effective assistance of counsel in the context of a criminal case where a non-citizen defendant resolves the charges by way of plea, thereby risking deportation.

The facts are not complicated.  The defendant sold ecstasy and marijuana to an informant, and was charged with possessing ecstasy with intent to distribute.  During plea negotiations, Lee repeatedly asked his attorney if he would be deported if he pleaded guilty, and defense counsel assured him that he would not.  Because the offense was an aggravated felony, Lee was, in fact, subject to mandatory deportation as a result of the plea.  Upon learning of this, Lee moved to vacate the plea, arguing that his attorney’s advice amounted to ineffective assistance.  His attorney apparently admitted that Lee’s defense to the underlying charge was weak, but he would nevertheless have advised Lee to proceed to trial had he known that the guilty plea would have resulted in mandatory deportation.  A Magistrate held in favor of Lee, but the District Court denied relief and the Sixth Circuit affirmed, finding that although the Government had conceded that counsel’s performance was defective, Lee could not show that he was prejudiced by the incorrect advice.  Thus, Lee satisfied the first prong of the ineffective assistance test of Strickland v. Washington, but his application failed because he could not satisfy the second prong.

Fortunately, the Supreme Court reached a different conclusion and reversed.  The Court found that Lee could demonstrate that he was prejudiced by showing a reasonable probability that but for his attorney’s errors, he would have gone to trial rather than plead guilty.  The Government argued that Lee could not show that he was prejudiced by accepting a plea where he had no viable defense to the underlying charge, and his sole hope of a victory at trial stemmed from the possible occurrence of some unexpected and unpredictable event that would have led to an acquittal.  The Court characterized this argument as an attempt by the Government to adopt a per se rule as to an inquiry that demanded a case-by-case analysis based upon the totality of the evidence.  The Government also overlooked the fact that the inquiry focused on a defendant’s decision making process, which may not be grounded exclusively in the likelihood of a conviction after a trial.  While it is true that the chance of a conviction after trial is an important factor in deciding to accept a guilty plea, there are cases where even the lowest possibility of success at trial may appear attractive to a defendant.  Finally, the Government posited that Lee’s decision to reject the plea would have been irrational because of the increased prison exposure resulting from a loss at trial.  But the Court could not find that a decision by someone in Lee’s position to risk a long prison term in exchange for even a small chance of avoiding deportation was irrational. Continue reading ›

The New Jersey Supreme Court decided State v. Rosario on June 6, 2017.  The case is important because, among other things, it discusses and distinguishes between the two most common types of police-citizen encounters, which are field inquiries and investigative detentions.

The facts are uncomplicated.  Police received an anonymous tip that defendant was selling illegal drugs from her home in a residential development, as well as from her vehicle.  One night, an officer patrolling the development noticed a moving silhouette in a parked car, which turned out to be the defendant’s vehicle, and decided to investigate further.  He pulled his patrol car up behind, and perpendicular to, the defendant’s car in such a way that the latter was blocked in.  The officer then activated his rooftop alley light which was aimed at the defendant’s car, but did not activate the siren or emergency lights.  The alley light enabled him to see a woman, who turned out to be the defendant, in the driver’s seat.  He observed her moving around in the driver’s seat and leaning toward the passenger’s seat.  He then exited his cruiser and approached the driver’s side door of the defendant’s car.  The window was partially open, and he asked the defendant for her license and other documents.  She produced the requested material, and the officer recognized her as the subject of the previously received anonymous tip and recalled that he had previously arrested her on narcotics-related charges.  He asked the defendant what she was doing, and she responded that she was smoking a cigarette, but the officer did not see a cigarette or butt.  He then asked her why she was moving around and turning toward the passenger seat when he pulled up, and she responded that she was putting on make-up and turned to put it away in her purse.  The officer then asked her how she could do that in the dark, but she did not respond.  He then asked if there was anything in the vehicle he should know about and, according to the officer, the defendant responded that she had the same thing he arrested her for previously.  According to the officer, the defendant then simply reached over to the passenger seat for an eyeglass case.  She opened it and the officer could see a white powdery substance.  The officer then arrested the defendant.  The trial court denied the defendant’s suppression motion, the Appellate Division affirmed, and the Supreme Court granted certification.

The Supreme Court began by recalling that field inquiries, and investigative detentions or “Terry” stops, are two of the three types of encounters that an individual can have with law enforcement.  A field inquiry involves a situation where an individual, under all of the surrounding circumstances, reasonably believes that they cannot simply walk away without answering the officer’s questions.  In an investigative detention, the person reasonably believes that their freedom of movement has been restricted.  Thus, an investigative detention, unlike a field inquiry, is a temporary seizure of the person, and must therefore be based upon the officer’s reasonable and particularized suspicion that the person has engaged, or is about to engage, in criminal activity.  The nature and quality of these encounters are measured from the perspective of the individual who is the subject of the stop. Continue reading ›

50 years ago last week, the United States Supreme Court decided In re Gault, which guaranteed juvenile defendants many of the same due process rights held by adult criminal defendants.  For the first time, a Court held that juvenile matters are, in fact, adversarial criminal proceedings, and that juvenile criminal defendants therefore have a right to a defense attorney, procedural protections, and the opportunity to present their version of the underlying facts in an open hearing.

The facts of Gault are relatively simple.  Gault, age 15, was accused of making obscene telephone calls to a neighbor and, as a result, was sentenced to a six-year custodial term in a violent youth facility.  Significantly, an adult charged with a similar offense would have been fined $50.00, and sentenced to up to two month in jail.  Gault was also on probation at the time of this incident for being in the company of another teen who stole someone’s purse, although he was not accused of any wrongdoing in connection with that incident.  There was no trial in the case involving the telephone call.  In fact, there is no transcript or any record of what occurred during his hearings in juvenile court.  Gault purportedly confessed to making the calls with a friend.  His parents were not present in court, or even informed of the charges prior to his alleged confession.

The underlying issue in Gault was the extent to which states could dispense with due process rights in juvenile criminal matters in the interest of doing what was believed to be in the juvenile’s best interests.  However, courts around the country were grappling with this problem prior to Gault.  There are cases dating back to the 1800’s that raised the same question.  Further, just a few months before Gault, the New Jersey Supreme Court ruled that a juvenile may not be entitled to the full panoply of constitutional rights, but must still receive the basic elements of due process and fair treatment. Continue reading ›

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