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 ›

Most people associate penalties in criminal cases with probation, incarceration and/or fines.  There is, however, another court-imposed obligation that can be imposed in any case involving financial loss.  A sentencing judge can, and frequently does, order the defendant to pay restitution as compensation for any monetary losses sustained by the victim. A restitution obligation frequently comes as a surprise to most clients, who are typically focused on the other types of penalties that may be imposed.  Ideally, any client facing charges involving a financial loss or property damage must understand from the beginning of the case that a plea arrangement or guilty verdict after trial could entail a restitution obligation in addition to other penalties.

Restitution is not confined to adult cases, but can be required in juvenile matters as well.  The Administrative Office of the Courts recently promulgated new, uniform guidelines that are to be followed when imposing restitution in juvenile cases.  These guidelines, among other things, require the prosecutor to make every effort to provide information concerning restitution at the time of the plea.  If this is not done, the judge hearing the case shall, at the time of the plea or the adjudication of delinquency (which frequently occur at the same hearing), order the prosecutor to provide information concerning restitution within 30 days.

Sometimes in juvenile cases, a judge may ask for a pre-disposition report to be prepared in advance of sentencing.  This report contains information about the juvenile that will factor into the sentencing judge’s findings and conclusions.  Under the new guidelines, if the court asks for a a pre-disposition report, the prosecutor will be ordered to submit restitution information and a recommendation to the Family Division for inclusion in that report.  Defense counsel will, of course, have the opportunity to review that report prior to sentencing.

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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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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 ›

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 ›

Generally speaking, it is a mistake for individuals who are or may be charged with crimes to give statements to law enforcement officers.  Many people believe they can talk their way out of being charged, but this is simply not true.  Our courts have long acknowledged that the atmosphere in which a statement is given is highly coercive.  Further, officers and investigators are trained to take statements, and the person giving the statement simply lacks the same level of training and experience.  The only thing a person brought in for a statement should say is “I want a lawyer.”  At that point, the interrogation is supposed to stop.

The Miranda warnings exist, and are required, because of the coercive atmosphere of a statement.  In New Jersey, these rights are typically explained orally and in writing, and the subject is supposed to initial and sign a form indicating that they understand and waive their rights.  Further, statements are supposed to be video taped so that a reviewing body (such as a trial court hearing a suppression motion) can both see and hear everything that happened during the statement.  When the subject has limited English language skills, the process, which includes the explanation and acknowledgement of Miranda warnings, should be bilingual.

In State v. A.M., decided in April of this year, our Supreme Court discussed whether a Spanish-speaking defendant who spoke limited English, properly waived his right against self-incrimination.  Defendant was charged with sexually assaulting his granddaughter.  After learning of the incident, officers transported him to the local police department for a statement.  He indicated that he was more comfortable with Spanish.  A Spanish speaking officer translated the interview, which was video-recorded, from English to Spanish.

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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 recently decided State v. Nelson, which addresses the extent to which the police may prolong a traffic stop to investigate suspected criminal activity.

The facts of the case are straight-forward.  A New Jersey state trooper learned from a reliable source that a silver Infiniti with a known plate number driven by an African-American male would be traveling up the Turnpike with a large quantity of marijuana.  The car was spotted shortly after receiving this information, and was pulled over for traffic violations.  Upon approaching the car, the trooper noticed a strong smell of air freshener.  The driver was sweating heavily, and was visibly nervous.  He was asked where he was going, and changed his story repeatedly.  The car contained no personal belongings except for two large bundles in the cargo area.  The driver told the trooper the bags contained shoes from a store he was closing.

The trooper asked for consent to search the car, but this was denied.  At this point, he believed that he had a reasonable and articulable suspicion that a crime was being committed, and asked for a canine search unit to come to the scene.  He made the request at 7:21 pm, and the canine arrived at 7:58 pm.  The dog alerted at the rear hatch, the driver was arrested, and the vehicle was impounded and searched pursuant to a warrant.  The search led to the discovery of 80 pounds of marijuana. Continue reading ›

Discovery in New York State criminal cases has long been completely unfair to defendants.  The New York discovery rules have not been substantially revised since 1979.  More than a dozen reform bills that have been introduced over the last 40 years have been successfully blocked by the State’s district attorneys’ association which has argued, among other things, that providing information concerning witnesses places them in danger.

What little discovery was available in New York included something called a “People’s Voluntary Disclosure Statement”.  This basically useless document, which was just a couple of pages in length, was composed of a set of questions and responses drafted by the district attorney’s office with the goal of providing as little case-related information as possible.  Because of the lack of meaningful discovery, motion practice was similarly laughable.  Defense attorneys would typically file an omnibus motion at the beginning of the case seeking every conceivable form of pretrial relief without really knowing what was needed for their case.  Given the absence of information that could be obtained through meaningful discovery procedures, such a motion could not be tailored to the specific needs of a particular case and did little, if anything, to create a record for appeal.

Most criminal cases do not proceed to trial.  In fact, between 95 and 100 percent of all criminal cases nationally resolve by way of plea deal.  Under the prior New York rules, district attorneys were able to withhold information from defense counsel until just prior to trial.  This created two problems.  First, defense attorneys were forced to negotiate and evaluate plea offers with virtually no information.  Defendants were, therefore, placed in the unenviable position of making major decisions concerning their cases with little, if any, information regarding the strengths and weaknesses of the People’s case.  Additionally, if the defendant decided to proceed to trial, counsel would be forced to work through the majority of their trial prep time without important information that could form the basis for investigation of the underlying facts, effective cross-examination of witnesses, and viable defenses.

Continue reading ›

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