Articles Posted in Pretrial Practice and Procedure

Statements to law enforcement are a routine part of many criminal investigations.  The atmosphere in which a statement is taken is pretty grim.  A suspect is placed in an interview room which, in itself, is an inherently coercive environment.  These rooms are typically small and engender a sense of being cut off and isolated.  Most statements are typically taken by at least two law enforcement officers, so the suspect being interviewed will naturally feel outnumbered.  Requests by the suspect during the interview to seek advice from others, such as family members, are denied.  In New Jersey, statements are typically recorded in video format.  This was not always the case – video recordings became part of the interview procedure because of ongoing complaints concerning abusive tactics by officers conducting the questioning.

But it gets worse than this.  Many people think that they can handle themselves in the interview room by simply explaining the underlying situation to the officers present without saying anything that will ultimately undermine their position in any resulting case, and that they will then be allowed to simply leave the facility without being arrested.  Generally speaking, nothing can be further from the truth.  The officers taking the statement are trained to elicit damaging information from the person being questioned.  Further, they have probably already interviewed other people involved in the investigation such as purported victims, and know what they are looking for when it comes time to interview subjects or targets.  Thus, alone in an unfamiliar environment, outnumbered, and confronted with officers who have been taught to obtain damaging admissions of wrongdoing and already know something about the underlying facts, many people bury themselves without even realizing it.

A defendant’s statement to law enforcement almost always makes it more difficult to defend the case.  The solution to the problems that statements create is simple.  Don’t give a statement.  A suspect in a criminal case does not have to answer questions from investigating officers, and should refuse to speak to the officers conducting the questioning.  Although the suspect will almost certainly be arrested and charged, they have done nothing to strengthen the case against them by giving a statement.

Anyone who has been following the news over the past few months understands that serious instances of police misconduct have occurred (and continue to occur) throughout the country.  The manner in which the police have handled George Floyd, Rayshard Brooks, and the protesters in Washington DC and Portland, Oregon, to name some of the more obvious incidents, have all raised serious questions concerning encounters between law enforcement representatives and ordinary citizens.  There is talk in Congress and the state legislatures about reforms ranging from defunding the police to clamping down on the influence of police unions on the disciplinary process to making that process more transparent.

The New Jersey Senate Committee on Law and Public Safety held hearings on police reform in June.  One of the bills that was debated was S2656, which would make public police internal affairs and disciplinary records.  Numerous civil rights and other organizations are supporting the bill.

The bill would remove the Open Public Records Act exception to police internal affairs records and grant the public access to complaints, allegations and charges filed against individual police officers; transcripts and exhibits from disciplinary trials and hearings; dispositions of proceedings; final written opinions and/or memoranda on the disposition and the discipline ultimately imposed, including the agency’s factual findings and analysis of the conduct of the officer(s) that was/were the subject(s) of the hearing; internal affairs records; and video recordings of the incidents underlying the complaint(s), charges, or internal affairs investigation.

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Formal criminal proceedings in indictable (felony) matters begin with a prosecutor’s presentation of the State’s case to a grand jury.  A grand jury consists of a body of 23 citizens who listen to the State’s witnesses and review any documents or other materials the State wishes to display, and then decides whether the State has shown that there is probable cause to conclude that the defendant committed a crime.  Probable cause is a “baseline” showing that a crime was committed and the defendant committed it.  This standard is far lower than the “beyond a reasonable doubt” burden of proof standard that the State must satisfy at trial.  If the standard is met, the grand jury votes an indictment, which lays out formal charges.  The 1947 Constitution provides that “[n]o person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury[.]”  Thus, the institution of the grand jury has a Constitutional basis, and the fair and procedurally correct operation of the grand jury has Constitutional significance.

The first instance of a grand jury can be traced back to the Assize of Clarendon in 1166, an Act of Henry II of England.  Thus, the roots of the grand jury as an institution of Anglo jurisprudence can be traced back almost a thousand years in our legal history.

There are certain rules that have always been viewed as fundamental to the proper functioning of a grand jury, and secrecy is probably the most important one.  The grand jury operates in secrecy for good reason.  Secrecy protects defendants.  If the defendant is “no-billed” (the panel fails to vote an indictment and formally charge the defendant with an offense), their reputation will hopefully remain intact.  Further, the identities of witnesses who testify for the State (which may include undercover officers or confidential informants) are shielded from disclosure.  Thus, the fact that the grand jury operates in secrecy benefits both defendants and the State. Continue reading ›

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