New Jersey Criminal Defense Attorney Blog

Virtual Grand Juries – The Latest Bad Idea to Keep the Criminal Justice System Running During the Pandemic

July 15, 2020 | By James S. Friedman, LLC

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 ›

Matter of HD/Matter of JM – Restrictions on Relief From Megan’s Law and CSL/PSL Obligations

March 24, 2020 | By James S. Friedman, LLC

Last week, the New Jersey Supreme Court handed down its decision in Matter of Registrant HD/Matter of Registrant JM. This decision is important for anyone seeking relief from their Megan’s Law and/or CSL/PSL obligations.

One of the requirements for relief from Megan’s and CSL/PSL is that the defendant must have remained offense-free for fifteen years from the date of their conviction (typically the date of their sentence), or from the date that they were released from custody, whichever is later. The question before the Court was whether HD and JM, each of whom committed new offenses during their fifteen-year period but then remained offense free for fifteen years from then, could be taken off Megan’s. Put somewhat differently, the Court was asked to determine whether the new offense(s) causes the fifteen-year clock to start to run again, or if it bars these defendants from seeking relief because they each committed a new offense within the initial fifteen-year period. The Appellate Division had found that the new offense had started the fifteen-year period to commence again and that the defendants were therefore eligible for relief because they remained offense-free for another fifteen years following the subsequent offense. In light of a thorough analysis of the relevant statutes, the Supreme Court reversed. Thus, an offense committed within the fifteen-year period will bar relief.

We firmly believe that these statutes are onerous, needlessly burdensome, and counterproductive insofar as they actually prevent defendants from starting life again as positive and productive citizens. Additionally, and so far as we know, there is no empirical date which demonstrates that anyone actually benefits from Megan’s Law and CSL/PSL. There is no proof that it really makes communities safer. However, and given the number of people who consult with and retain us on these issues, and in light of this new decision, we believe this is a good time to review the basic criteria for removal. Continue reading ›

State in the Interest of AA – Expanded Miranda Protections for Juveniles in Custody

March 16, 2020 | By James S. Friedman, LLC

Juveniles who have been taken into custody in connection with a criminal charge present special procedural issues. Ideally, a parent or guardian has to be present before the police can question them. Alternatively, the police have to show that they used their best efforts to contact a parent or guardian before any questioning can occur. The purpose of this is so that the parent or guardian can assist the juvenile in making an intelligent and informed decision concerning whether to waive their Miranda rights and respond to questions asked by law enforcement. State v. AA, which our Supreme Court decided in January, 2020, expands the protections afforded juveniles concerning this very sensitive issue.

The two questions before the Court were as follows: Whether law enforcement engaged in the functional equivalent of interrogation when they permitted the juvenile’s mother, who had been called to the police station, to speak with her 15-year-old son who was in custody before the police had read the juvenile his Miranda rights; and Did the fact that AA and his mother had no privacy during their conversation necessitate the adoption of a “private consultation” rule requiring the police to give the juvenile and the adult a meaningful opportunity to speak privately before asking the juvenile whether they wish to waive their Miranda rights?

The Court held that the actions of law enforcement in this case constituted the functional equivalent of interrogation; accordingly, the unwarned statements that AA made to his mother should have been suppressed. Further, the Court expanded the protections afforded juveniles by now requiring the police to advise a juvenile in custody of their Miranda rights in the presence of a parent or guardian before the police ask the juvenile any questions, or before the parent or guardian speaks with the juvenile. The police must then give the parent or guardian and the juvenile a meaningful opportunity to speak privately concerning whether or not the rights will be waived and questioning may proceed.

Privacy is in the News – Repeatedly

February 24, 2020 | By James S. Friedman, LLC

Two issues regarding the right to privacy, and its potential impact on criminal cases, appeared in the news recently. These issues have no relationship to each other, but can both be highly relevant to criminal cases.

The first involves a your man who was living alone in a South American country. He was extremely poor and his family was basically gone. Having absolutely no personal resources for even necessities, he became involved with a local gang. To be clear, he was not one of the leaders, or even a major participant in gang activities, acting instead as the occasional lookout. Significantly, he really did not want any part of the gang lifestyle. He eventually fled his home country and sought asylum in the United States. He was afraid to return to his country after leaving, because of his well-founded belief that the gang he was previously involved with may kill him.

Part of the admission process here involved meeting with a mental health therapist whose position was government-related. The therapist took notes of their meetings, which included discussions of his gang-related activities. Without any prior knowledge or consent of the young man or the therapist, these notes came to light in connection with a hearing that was held to determine whether he could be admitted to the United States. The notes supported the conclusion that he was gang-involved in his home country, which will probably end his quest for admission to the United States and force his deportation back to his home country. Continue reading ›

In the Matters of Registrants G.H. and G.A. – Termination of Megan’s Law and Lifetime Supervision Requirements

February 13, 2020 | By James S. Friedman, LLC

We receive many inquiries from defendants who are currently required to register pursuant to Megan’s Law, and are on Community Supervision for Life or Parole Supervision for Life, about termination of their overly burdensome and needlessly restrictive obligations. In light of a recent New Jersey Supreme Court case, we believe that this may be a good time to review some of the basics of a successful termination motion.

Briefly, people who are saddled with Megan’s and lifetime supervision requirements can apply for relief under the following circumstances, pursuant to N.J.S.A. 2C:7-2(f). First, the application may not be made for at least 15 years from the date of conviction or release from custody, whichever is later. Next, the applicant must be able to show that they were offense-free during that time period. Finally, the applicant must be able to show that they are not a threat to the safety of others. This last requirement is typically satisfied by submitting a written evaluation from a forensic psychologist along with the motion papers.

However, pursuant to N.J.S.A. 2C:7-2(g), certain defendants are not eligible for relief. These include defendants with more than one sex offense, or defendants convicted of aggravated sexual assault or sexual assault as defined in the State’s criminal code.

State v. Sealy and Investigating Juror Misconduct

February 12, 2020 | By James S. Friedman, LLC

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 ›

State v. Daley and Admission to Pre-Trial Intervention

February 11, 2020 | By James S. Friedman, LLC

A criminal case can end in a variety of ways including a verdict at trial, a plea, a dismissal, or admission to a diversionary program. Two diversionary programs that may be available to New Jersey criminal defendants are Drug Court and Pre-Trial Intervention, or PTI. This post focuses on some of the basics of PTI.

Generally speaking, defendants seeking admission to PTI must satisfy two criteria. First, the defendant’s current case must be their first and only encounter with the criminal justice system. Further, the charge can be no greater than third degree.

Defendants who do not satisfy these criteria may still be able to gain admission to the program if their attorney submits a statement of compelling reasons in support of their application. This statement acknowledges that the defendant does not meet the basic criteria for admission, but should be admitted to the program anyway because of the facts and circumstances surrounding their case and personal situation.

State v. Mount, Weapons Charges and Graves Act Waivers

February 7, 2020 | By James S. Friedman, LLC

Have you been charged with illegal possession of a firearm? Surprised to learn that your plea offer calls for a State prison sentence (typically, five years with a 42-month parole disqualifier), and that the prosecutor is not willing to even discuss it? This scenario has been playing out in courts all over New Jersey for several years now. Here’s why, and what you may be able to do about it.

Years ago, the New Jersey criminal code included a third degree offense for unlawful possession of a weapon. Depending upon the facts of the case, it was frequently possible for those charged under this section of the Code to plead to the possession charge in exchange for a term of non-custodial probation. But the gun laws changed, and the third degree offense was no longer available. Offenses in these cases are charged under the Graves Act, with the result that a State prison sentence is frequently a given.

It is, however, possible to apply for something known as a “Graves Act Waiver”. If successful, the defendant will be placed on non-custodial probation with appropriate terms and conditions. In order to qualify for a waiver, the typical defendant must have little to no criminal record. They should also be able to document a life style punctuated by things that demonstrate the ability to live a successful, law-abiding and productive life in the community. The application for the waiver is prepared by the defendant’s lawyer, and is typically supported by documentation such as letters of reference from employers and community leaders, documentation showing achievement in employment and/or education, records of military service, and the like. The application will be ruled upon the county assignment judge, or that judge’s designee.

State v. Tung – Everything the Jury Hears Matters

February 6, 2020 | By James S. Friedman, LLC

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 ›

State v. RG – Involuntary Medication of Incompetent Defendants

February 5, 2020 | By James S. Friedman, LLC

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 ›