New Jersey Criminal Defense Attorney Blog Covering New Jersey and Federal Criminal Law and Procedure

Articles Posted in Suppression of Evidence

In my experience, client calls from jail or prison facilities come in two forms.  Sometimes, a client will call me directly from the facility using the facility’s telephone equipment.  On other occasions, I will receive a call from a friend or family member who will then “third-party” the client in from the facility.  Both methods of contact present serious problems.  The third party call involves having someone on the line who is not part of the case, and has no reason to listen to attorney-client conversations.  Thus, this method of calling an attorney presents serious attorney-client privilege issues.  I always advise clients to never discuss their case with anyone who has no need to know about it.  A criminal case is a sensitive matter; information must be shared on a strictly “need-to-know” basis, and in a manner consistent with applicable rules governing privileged communications.

Direct calls using jail or prison telephones are highly problematic for other reasons.  State v. Jackson involved calls made by an inmate at the Essex County Jail outside of Newark, New Jersey.  That facility ostensibly allows inmates to make unmonitored and unrecorded calls to attorneys and Internal Affairs.  Otherwise, inmates are informed at the beginning of all calls that they may be recorded or monitored.  Inmates also sign a release form stating that they understand that calls are subject to monitoring and recording, and may be intercepted, and Jackson signed that form.  Similarly, inmates at the Middlesex County Jail, the other facility in this case, receive a pamphlet stating that “[t]elephone calls may be monitored and recorded except calls to the Internal Affairs Unit and legal telephone calls.”  Further, the inmate hears “[t]his call may be recorded or monitored” at the beginning of each monitored call.

Defendants in each of these cases made calls from these jails.  The Middlesex County Prosecutor’s Office then served grand jury subpoenas on the jails to obtain the recordings, and the defendants moved to suppress.  The motion judge suppressed the calls because the subpoenas, in his view, violated the New Jersey Wiretapping and Electronic Surveillance Control Act.  He believed that a separate warrant or wiretap order was necessary even though the Wiretap Act allows jails to monitor inmate calls.  He also believed that an inmate’s consent or knowledge that calls would be monitored or recorded was invalid because of the imbalance of power between the inmate and the facility.  In an effort to be sensitive to inmate privacy concerns, he suppressed the calls in both cases.

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Previously, an alleged victim’s out-of-court identification of a defendant from a photo array was highly problematic.  The primary issue was the extent to which the officer administering the array suggested to the victim which photo should be selected.  This was frequently done by giving the victim positive feedback during the identification procedure, thereby increasing the likelihood that the defendant’s photo would ultimately be the one selected.  To address this issue, New Jersey implemented several changes to the identification procedure including, without limitation, the requirement that the photo array be administered by an officer that has nothing to do with the case.  This officer has no knowledge of the facts of the case, or the identity of the defendant, and is at least theoretically incapable of prompting the victim in any way while the latter reviews the array.  However, and regardless of the procedural protections that have been implemented, problems with out-of-court identifications made from photo arrays persist.  This is significant because of the weight that an out-of-court identification can have upon a jury’s perception of the evidence at trial.  In the recent case of State v. Anthony, our Supreme Court again addressed and enhanced the procedures to be followed when a photo array is administered to a victim or a witness.

The issue in Anthony was the extent to which the officer administering the array must record the responses of the alleged victim or witness to the photos that make up the array.  How are those reactions to be recorded, and how much detail is required?  The facts of the case are not complicated.  Two days after an attempted robbery, the victim went to the police station to review a photo array.  The array was administered by an officer who was not involved in the case and did not know the defendant’s identity.  The officer read a series of instructions to the victim, showed him the array, and recorded his responses on pre-printed forms that the department used to document identification procedures.  On appeal, defense counsel argued that that this procedure was defective because the officer did not memorialize or record the dialog with the victim.  As a result, it was not possible to determine if the officer behaved in a suggestive manner.

In reviewing this case, the Court recalled that prior decisions required that, as a condition to the admissibility of an out-of-court identification, the officers must make a written record detailing the procedure followed which must identify the place where the array was administered, the dialog between the witness and the officer, and the results of the procedure.  The officer must record the witness’s statement of confidence in the witness’s own words. Continue reading