Articles Posted in Trial Practice and Procedure

Anyone who has ever sat through a jury trial knows the level of attention received by the jury. Tremendous care goes into selecting the jury, as is evident by the nature and extent of the questioning of whole panels and individual jurors, and the related decisions that the parties make concerning peremptory challenges.  But what happens after the jury is selected? How should the court deal with issues of juror misconduct? As the recently decided case of State v. Isakova illustrates, any inappropriate conduct by jurors that comes to a court’s attention must be taken seriously and thoroughly investigated.

Defendant was a former corrections officer who was indicted for participating in a scheme to smuggle tobacco into a jail. His conviction was reversed on appeal for various reasons. Among them was a finding by the Appellate Division that the trial court erred in failing to investigate allegations that a juror introduced extraneous information during jury deliberations.

During deliberations, Juror Number Seven sent a note to the trial judge asking him to remove Juror Number Nine because she had family that were cops, her husband was in jail, and her husband used to get things when he was in jail. The court questioned Juror Number Seven after the jury had indicated that it had reached a unanimous verdict. During that colloquy, the juror stated that Juror Number Nine was biased in her opinions and was making several jurors uncomfortable. The trial court refused to interview Juror Number Nine because it believed that there was nothing in Juror Number Seven’s note that triggered a concern about Juror Number Nine’s ability to deliberate with the other jurors. Continue reading ›

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 ›

Mississippi has tried Curtis Flowers six times for allegedly murdering four employees at a furniture store.  Flowers is black and three of the four alleged victims were white.

Mississippi has not been able to convict Flowers because the prosecutor(s) handling each trial are flaming racists who got caught doing something no trial attorney should do.  At the first two trials, they struck (e.g., removed with a peremptory challenge) all of the qualified black prospective jurors.  Both juries convicted Flowers and sentenced him to death, but the Mississippi Supreme Court reversed the convictions because of prosecutorial misconduct.  At the third trial, the State used all 15 of its challenges to strike black prospective jurors, and the jury again convicted Flowers and sentenced him to death.  The Mississippi Supreme Court reversed again, this time because of a violation of Batson v. Kentucky, which held that once a defendant establishes a prima facie case of discrimination concerning the manner in which challenges are being used, the State must give race-neutral explanations for its challenges, and the trial judge must determine whether those reasons are valid or just a pretext for discrimination.  The fourth and fifth trials ended in mistrials.  At the fourth trial, the State used 11 challenges against black prospective jurors.  No racial information concerning the prospective jurors at the fifth trial exists (or it was at least conveniently omitted from the State’s papers).  At the sixth trial, the State used six challenges.  Five were directed against black prospective jurors.  One black juror was seated.  Flowers raised a Batson claim, but the trial judge found that the State’s proffered explanations were race-neutral.  The jury convicted Flowers and sentenced him to death, and the Mississippi Supreme Court affirmed.  The United States Supreme Court vacated the judgment and remanded the case, but the Mississippi Supreme Court affirmed again.

The United States Supreme Court reversed, finding that the surrounding facts and circumstances demonstrate that the trial judge’s conclusion at the sixth trial that the State’s reasons for striking one of the black prospective jurors were race-neutral was clearly erroneous.  In doing so, the Court noted that four categories of evidence factored into its decision, where the State had a persistent pattern of striking black prospective jurors at each trial.  Continue reading ›

Defendants frequently decide to change attorneys while their case is pending before the court.  Substitutions of counsel happen very frequently in criminal cases.  In fact, it is not uncommon for a criminal defendant to change attorneys repeatedly during the course of their case for any number of reasons.  Sometimes, a substitution can occur because the client does not feel the current attorney is paying sufficient attention to their matter.  The client may also feel the attorney is not on track for obtaining the desired result.  Other times, there is simply a clash of personalities.

Both the federal and state Constitutions guarantee an accused the right to effective assistance of counsel.  A basic element of this guarantee is the defendant’s right to the attorney of their choice.  However, a defendant’s right to change attorneys during the case is not absolute; rather, it is balanced against the Court’s calendar and scheduling issues.  Thus, timing and scheduling can affect a client’s decision to change attorneys.  This is particularly true when the defendant decides to change attorneys after a case has been listed for trial, and especially on the eve of trial.

Because changing attorneys almost always result in a delay of proceedings, our State’s Supreme Court has held repeatedly that a trial court must consider the following factors when deciding to allow a substitution of counsel:

a. The length of the requested delay.

b. Whether other adjournments have been requested and granted;

c. The balanced convenience or inconvenience to the litigants, witnesses, counsel and the Court;

d. Whether the requested delay is for legitimate purposes, or whether it is dilatory, purposeful, or contrived;

e. Whether the defendant contributed to the circumstances which give rise to the request for a continuance;

f. Whether the defendant has other competent counsel prepared to try the case;

g. Whether denying the continuance will result in identifiable prejudice to the defendant’s case and, if so, whether this prejudice is of a material or substantial nature;

h. The complexity of the case; and

i. Other relevant factors that may be unique to the matter at bar. 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.

Continue reading ›

Criminal justice reform in New Jersey is now two years old.  As we gain more experience with the underlying rules and  procedures, it is worth reviewing whether they are achieving their stated goals and the effect they are having on our criminal justice system.  State v. Hyppolite, recently decided by the New Jersey Supreme Court, discusses the State’s discovery obligations prior to a detention hearing, and what happens when the prosecutor fails to meet it.

Hyppolite stemmed from a shooting and homicide in Jersey City.  The police identified Michael Gregg as a witness and interviewed him on two separate occasions.  Gregg gave his first statement shortly after the shooting, and said that he heard three to four shots but did not see the shooter.  Some months later, he gave a second statement where he, among other things, identified the defendant as the shooter.  The defendant was arrested and charged with murder and weapons offenses, and the probable cause affidavit submitted in support of the complaint stated that he was positively identified as the shooter by an eyewitness.  The State moved for pretrial detention, and produced by way of discovery materials regarding Gregg’s second statement, but failed to provide any information concerning the first statement.  The Court ordered the defendant to be detained.

The State subsequently produced additional discovery after the defendant was indicted, including materials concerning Gregg’s first statement, recordings of interviews of other alleged witnesses which contradicted Gregg’s version of events, and an application for a communications data warrant for Gregg’s phone.  This was the first time defense counsel received this material.  Counsel moved to re-open the detention hearing.  The trial court denied the application, and the Appellate Division denied leave to appeal  The Supreme Court, however, granted leave to appeal.

Continue reading ›

This past November, the New Jersey Supreme Court decided State v. Kiriakakis.  There the Court upheld the constitutionality of a sentence within the range authorized by a jury verdict that included a mandatory period of parole ineligibility, or parole disqualifier.

Understanding this holding requires a review of basic sentencing concepts.  First, the New Jersey Code of Criminal Justice authorizes ranges of sentences for different degrees of criminal offenses.  Generally speaking, someone convicted of a fourth degree offense can receive a sentence of up to 18 months.  A third degree offender can receive a sentence within a range of three to five years.   A second degree offender can be sentenced to between five and ten years.  With some notable exceptions not relevant here, a first degree offender can be sentenced within a range of ten to twenty years.  A sentence for a particular defendant within the statutory range is supposed to be based upon a balancing of aggravating and mitigating factors that are also listed in the sentencing section of the Code.  These factors are supposed to help guide the judge to customize the sentence to the needs of the case.  Our judges have considerable discretion to impose sentences within the applicable statutory ranges, so long as they follow the proper procedures.

Sentencing involves more than just setting a number within a range based upon a balancing of factors listed in the statute.  Some sentences are a “flat” number, which is simply a term of years standing alone.  However, sentences can, and often are, composed of two separate numbers.  The “top” number is the highest or outside number of years that a defendant will serve.  The “bottom” number is the amount of time that a defendant must serve before becoming eligible for parole.  The latter may be referreed to as a “period of parole ineligibility”, “parole disqualifier”, or “stip”.  (Both of these numbers can be reduced by “credits”, but that issue is not relevant here). Continue reading ›

A defendant has the right to address the court at sentencing.  Such statements are offered in mitigation of punishment, and typically include acceptance of responsibility and/or some showing of remorse for the underlying conduct.  The New Jersey Supreme Court recently addressed the parameters of this right in State v. Jones.  As the Court noted, there is relatively little case law on this issue, so the guidance offered by this opinion is valuable and worth a comment.

Briefly, Jones and a co-defendant  were charged with the robbery of a woman and her daughter in a park in New Brunswick.  Jones subsequently pleaded guilty to first degree robbery and a second degree certain-persons-not-to-have-weapons charge.  The State’s sentencing recommendation was 15 years with an 85% parole disqualifier subject to the No-Early-Release Act, with a concurrent 7-year sentence on the certain persons charge.  At the sentencing hearing, defense counsel asked the Court to correct the pre-sentence report to note that the gun was unloaded at the time of the robbery, and to honor the plea agreement and sentence Jones in accordance with the State’s recommendation.  The Court then asked Jones if he wanted to speak.  Jones stated that the was “a hundred percent guilty” of the offense, but was not sorry for what he did.  The sentencing judge then stated “You’re not sorry?”, to which Jones replied that the victim was not the target, and then stated “Other than that, then that’s it.”  The Court then asked the State if it wished to be heard, and the prosecutor stated that the victim was “the intended target once [Jones changed] his mind in the park.”  Jones then asked to be heard again, but the Judge denied his request.

Jones did not appeal, but instead filed a pro se motion for post-conviction relief.  His issues were eventually disposed of by an excessive sentencing panel which held, among other things, that the sentencing court did not violate Jones’s right to allow him to speak at his own sentencing.  The Supreme Court granted certification to review this claim. Continue reading ›

A state trooper stopped a vehicle on I-295 in Burlington County.  The basis for the stop was a damaged tail light.  The vehicle, which also changed lanes without signaling, had three occupants – the driver, a front-seat passenger, and a six-year-old child in the back seat.  The trooper smelled burnt marijuana upon approaching the passenger side of the vehicle, and then asked the front passenger, the defendant Hagans, to step out of the vehicle.  He arrested, handcuffed, and Mirandized him, and called for backup.  He then asked the driver, Shonsheray Chandler, to step out of the vehicle.  He Mirandized her and asked her about the presence of Marijuana in the car.  She denied both knowing the defendant possessed marijuana, and that she had been smoking it in the car.  He handcuffed Chandler and placed her in the back seat of the police car.

The trooper asked Chandler to consent to a vehicle search.  Prior to reading her the consent form, he stated “it would be a lot easier if you would just make things easy.”  He read her the form, told her that she could refuse to consent, and that she could leave absent some other reason to hold her.  He also told her that she could be present during the search if she consented, and could withdraw consent at any time.  At first, Chandler refused to consent to the search.  The trooper responded by saying that he was going to apply for a search warrant which would just prolong the inevitable, and that he just wanted to make things easier.  Chandler then consented to the search.  In fact, the record indicated that she repeatedly consented to the search after her initial denial.  The trooper then re-read the consent form in its entirety and again asked Chandler if she consented to the search, and she responded in the affirmative.  The trooper also repeated for the mobile video recorder (“MVR”) that Chandler initially denied consent, but then changed her mind.  The vehicle search yielded a bag of marijuana and a handgun.

The defendant admitted that the marijuana and gun were his, and was charged accordingly.  During a suppression hearing, the trial court found that based upon the totality of the circumstances, the consent to search was valid and not coerced.  The Appellate division affirmed. Continue reading ›

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