Articles Posted in Trial Practice and Procedure

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Everyone here is scrambling to implement the criminal justice reforms that become effective on January 1, 2017.  As stated in a previous posting, the new laws and procedures change New Jersey’s criminal justice system in many significant ways.

The new bail procedure departs substantially from current law.  Under the current system, a defendant’s pretrial release depends their ability to post a monetary bail.  Under the new procedure, pretrial release will depend upon the extent of the risk that the defendant will not appear in court when s/he is supposed to do so, and whether the defendant poses a danger to the community.  The reforms address a problem known to exist for a long time.  Under current procedure, defendants who do not present any meaningful risk to the community can remain in jail throughout their case only because they cannot afford to pay even a minimal bail, whereas defendants with more significant resources can afford to post bail even if they are a flight risk, or are perceived as dangerous.

Under the new system, when a defendant is arrested on a complaint-warrant, the judge setting bail will use an objective, validated risk assessment tool developed by the Laura and John Arnold Foundation to assess the risk that the defendant will be arrested for a new offense; be arrested for a new violent crime; and fail to appear in court when required to do so.  The assessment is designed to be race and gender neutral.  Based upon the risk assessment score, the defendant will be classified as low, moderate or high risk, and the judge will then set the terms and conditions of pretrial release accordingly.  The decision to release or incarcerate the defendant must be made within 48 hours.  The courts will, however, be trying to make this decision within 24 hours. Continue reading ›

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Major changes to the processing of criminal cases in New Jersey will take effect on January 1, 2017.  On the surface, these changes address two areas of criminal practice: (a) pretrial release and bail; and (b) speedy trial.  However, it is anticipated that these changes will ultimately affect virtually every aspect of a New Jersey criminal case.  This post is the first of a series addressing criminal justice reform in New Jersey.

Pretrial Release and Bail – Criminal cases in New Jersey are commenced with the issuance of a Complaint-Summons or Complaint-Warrant.  As under the current system, defendants receiving Complaint-Summonses will simply get a court date, and then be released.  However, the new procedures significantly affect defendants who receive Complaint-Warrants.  Under the existing procedure, these defendants are given a dollar amount that they must post for bail.  They are released if they can post that bail, and remain in custody if they cannot.  The primary issue that the changes to the current system seek to address concerns defendants who receive low bails (often as low as $500.00), but are forced to remain in jail – sometimes for months, if not longer – because they cannot afford it.  The changes focus upon two problems that result from jailing this group of defendants.  First, these defendants, whose economic circumstances are often fragile at best, frequently lose their jobs and their homes as a result of prolonged incarceration.  Further, jailing people costs money, and the State, the counties and the municipalities, cannot afford it.  Thus, the changes are designed arrange for the prompt release of non-violent defendants who are not flight risks so that they do not face the consequences of needless incarceration stemming from their inability to pay even a modest bail, and to conserve public funds that could be better spent elsewhere.

The new procedures result in a shift from a system of pretrial release and bail that is based upon a defendant’s economic resources to a system that focuses more on an assessment of the likelihood that a defendant will appear for court when instructed to do so, as well as the danger they present to the community if they are released while their case is pending.  These procedures represent a substantial departure from current bail practice in New Jersey.  The precise mechanics of the new bail system will be the subject of a future blog post.

Continue reading ›

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Neither the New Jersey Code of Juvenile Justice nor the New Jersey Court Rules expressly address discovery in juvenile matters.  The absence of express guidance in the statute or court rules recently led to decisions from the Appellate Division and New Jersey Supreme Court that broadened a juvenile’s right to discovery, at least in a relatively narrow – but very serious – class of cases.

Two high school students – CW and DW – got into a fistfight.  Someone who was present at the fight had a handgun in his waistband.  NH, one of DW’s friends who was also present at the fight, grabbed the gun and shot CW four times.  One of the shots was to the back of CW’s head.  NH subsequently admitted to possessing and firing the handgun, but claimed that he shot at the ground.  At least a portion of the incident was caught on video, and several witnesses provided statements to the police that implicated NH.

The State charged NH in a juvenile complaint with crimes that, if committed by an adult, would constitute knowing and purposeful murder and unlawful possession of a weapon.  The State also sought to waive jurisdiction of the case from the Family Division, Juvenile Part, to the adult criminal part of the Law Division.  In connection with this motion, the State submitted a statement of reasons, provided the juvenile with limited discovery, and represented that it had no exculpatory evidence. Continue reading ›

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The Fourth Amendment to the United States Constitution, as well as the analogous provisions of New Jersey state law, set rules concerning the manner in which officers can search a person, and/or their home, office or vehicle.  This body of law plays a central role in maintaining personal liberty and privacy, and impacts upon the rights and freedoms of every citizen.  However, at least one sitting US Supreme Court Justice (Breyer?) has noted that our Fourth Amendment case law is in “disarray”, or words to that effect.  This stems, at least in part, from the fact that these cases arise in a wide array of scenarios, and are very fact-sensitive.  This creates opportunities for widely divergent interpretations of facts and related applications of law, with the result that existing search and seizure case law is frequently unclear.  Indeed, this area of law demonstrates plainly and numerous individuals can have different views and opinions of the same plot line, and therefore reach different legal conclusions and results.  The New Jersey Supreme Court recently decided State v. Bivins.  This case, which is somewhat refreshing in its clarity, helps to define the limits of search and seizure activities in drug cases where the search is conducted pursuant to an “all-persons-present” search warrant.

In Bivins, the police obtained a no-knock warrant to search a residence believed to be involved in drug trafficking for narcotics and related contraband.  The terms of the warrant allowed the police to search the residence, and “all persons present reasonably believed to be connected to said property and investigation.”  The affidavit supporting the warrant stated, among other things, that the residence was “open for the sale of narcotics twenty-four (24) hours a day, seven (7) days a week.”  One of the state troopers involved in the execution of the warrant asserted that people were “in and out of the house at all times” and there may have been “a lot more occupants in there than [those] seen.”

This trooper also testified that when the police were entering the residence, he learned that two individuals had departed and were heading toward a grey Pontiac.  The trooper approached his designated location and saw a grey Pontiac approximately five or six houses down the block from the target residence.  The trooper also observed two individuals in the car, who were later identified as defendant Bivins and his cousin.  Significantly, the trooper did not personally observe Bivins or his cousin leave the residence and enter the Pontiac.  Bivins and his cousin were removed from the vehicle and searched, and each had 35 bags of cocaine. Continue reading ›

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We have written before about federal sentencing issues.  A recent US Supreme Court decision again focuses our attention on this important topic and, specifically, the central role that the advisory guidelines play in the federal sentencing process, and how sentencing mistakes can – and should – be corrected.

By way of background, sentencing in federal cases is governed largely by the the advisory sentencing guidelines promulgated by the United States Sentencing Commission.  The concept underlying the advisory guidelines is relatively simple.  They are designed to promote uniformity in sentencing.  Thus, if two defendants with roughly similar backgrounds are convicted of the same offense and appear for sentencing before two different judges in two different jurisdictions, the advisory guidelines help ensure that the defendants will receive roughly the same sentence.  In this respect, the guidelines restrict the discretion of the sentencing judge.

The central role of the advisory guidelines in federal sentencing cannot be overstated.  As a general matter, current law does not require  judges to impose the sentence that the guidelines contemplate for a particular offense, which is why defense attorneys (and some of the more intellectually honest US Attorneys) refer to them as “advisory”.  There is a list of factors in the federal sentencing statute that district court judges are supposed to consider when fashioning a sentence in a particular case, and the guidelines is one of the items on that list.  However, unless there is a good reason to “depart” or “vary” from a guidelines sentence, most judges will typically sentence a defendant within the guidelines range for the offense at issue.  This is because a “within range” sentence is presumed reasonable, so the likelihood of reversal for a sentencing error is reduced.  (In the simplest sense, “departures” and “variances” are reasons to sentence a defendant to something less that what the guidelines call for.  They are not easily obtained, and are not available in every case.) Continue reading ›

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One of the many defendants I have represented in federal district court in New Jersey resolved his case by pleading guilty to certain offenses that typically call for the imposition of a prison sentence.  After long and difficult negotiations with the US Attorney’s Office, and in light of other facts and circumstances unique to that case, I successfully persuaded the Government to recommend a sharply reduced sentence.  Had the court adopted the Government’s recommendation, my client would have received non-custodial probation.

I participated in a chambers conference with the judge and the US Attorney at a hearing prior to the sentencing date.  During this conference, which was off the record, the judge stated that they “always” place defendants like my client in jail.  The judge said this before reading a pre-sentence investigation report (one had yet to be prepared), a sentencing memorandum from either attorney (also not prepared at this stage), or the Government’s formal request for a reduced sentence (same).  Neither had the judge seen correspondence from friends or family members, or heard oral argument in connection with sentencing.  I foolishly believed that the judge would actually do their job, consider all of this material when it had been properly presented, and probably see things differently once a full record had been made.

Foolish was right – even on a full record consisting of all of the foregoing items, this judge still sentenced my client to a (brief) custodial term, and then denied my motion for reconsideration.  In other words, this judge did what they “always” did in this type of case, regardless of what was in the record.  Ultimately, making a full record turned out to be a total waste of time and effort.  The judge could not have cared less about the unique facts and circumstances of this case or any of the submissions, but rather focused solely on their past practices in what they viewed as similar cases with absolutely no regard for anything else.  In my mind, this was as astonishing example of thoughtless, cookie-cutter justice at its worst. Continue reading ›

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Every participant in a jury trial has a defined role.  The judge manages the trial and acts as a judge of the law.  S/he will rule on legal issues that arise during pre-trial proceedings, supervise jury selection, rule on issues of law that arise during trial, instruct the jury on the applicable law, and then supervise jury deliberations.  The State and defendant each have their own lawyers who present evidence, challenge and test the evidence of their opponent, and generally advocate their client’s position.  The jury is the judge of the facts.  It listens to the evidence presented in the courtroom during the trial subject to the judge’s legal rulings, and determines whether or not the facts of the case – as presented in accordance with our rules of procedure and evidence – supports each element of each criminal charge that the State has brought against the defendant.  Thus, the jury is the fact-finder.  Its job is to determine the facts of the case.  In a pair of recently decided cases, our Supreme Court re-affirmed that fact-finding is the jury’s province, and that interfering with this function runs roughshod over fundamental principles of our trial process.

In Cain, Hackensack police detectives were conducting a surveillance of defendant’s home.  The detectives, who were in an unmarked vehicle, allegedly observed a hand-to-hand exchange between defendant and another individual on the porch.  They then followed the individual who, upon realizing that he was being followed, dropped an object on the ground.  The detectives retrieved the object, which was found to be crack cocaine.  Several days later, an officer observed another transaction between defendant and one or more individuals in front of defendant’s house, and later recovered two envelopes of heroin.  Testimony indicated that the heroin was purchased from the defendant.  The officers obtained a search warrant for defendant’s house, and recovered cocaine, heroin, a digital scale and baggies.

Like Cain, the facts in Simms were straight-forward and relatively easy to decipher.  Atlantic City detectives conducting a surveillance near a housing project observed a silver car park near a curb.  The driver reclined his seat so that he could not be easily observed, but raised his head periodically to look around.  A red car then parked in front of the silver car.  The driver of the red car approached the silver car and handed an object to the driver of the silver car in exchanged for what was believed to be US currency.  A detective saw the driver of the red car, the defendant, lean into the silver car and then walk away, but did not actually see an exchange.  The detectives did, however, see the defendant place “something” in his back pocket.  Following his arrest, the detectives approached the silver car and observed a bundle of heroin on the back passenger seat, which was later found to have the logo “Sweet Dreams”.  Another detective then approached the red car and saw the passenger stuffing something down the rear of her pants, which was later found to be bags of heroin stamped with the same logo. Continue reading ›

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Clients often attempt to articulate facts substantiating a violation of their constitutional rights.  Sometimes, the client’s description of the relevant facts can be used to at least articulate a legal basis for such a violation.  More frequently, however, the client’s description bears little, if any, relation to a constitutional violation.  What quickly becomes obvious is that most clients (indeed, most people) cannot identify their basic constitutional rights.  Non-lawyers may have vague notions of the right to be free from unreasonable searches and seizures or the right against self-incrimination, but these are only two of many constitutional rights that we all have.  Further, most people are also unaware that the federal Constitution is only one source of such rights.  State constitutions, including New Jersey’s, may guarantee different constitutional rights, or different (higher) levels of protections relative to their federal analogs.

The recently decided New Jersey Supreme Court decision of State v. Bass contains an extensive discussion of one of our most fundamental constitutional rights, which is the right to confrontation.  Simply put, a criminal defendant has the right to confront and cross-examine the witness(es) against them.  Justice Patterson’s unanimous opinion discusses different permutations of that right and also demonstrates that, where necessary, New Jersey will depart from federal law to chart its own course in this important arena.

After an evening of drugs, cross-dressing and, presumably, sexual activity, in a Neptune Township motel room, defendant David Bass shot and killed Jessica Shabazz, and shot and wounded James Sinclair.  Defendant, Shabazz and Sinclair were the only individuals present when the relevant events occurred.  Sinclair, who had a long criminal history, was the State’s lead witness at trial. Continue reading ›

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The New Jersey Supreme Court recently decided State v. Saladin Thompson, which discusses the use of peremptory challenges to strike potential jurors based on their race.  The decision focuses our attention on jury selection, which is one of the most important and difficult phases of any jury trial.

Many clients who come in for intake interviews ask similar questions, regardless of the nature of their case or charges.  Almost every client wants to know how their case will resolve – what their position will be, and how the case will affect them, when it is all over.  Sometimes, at the very beginning of a case, an attorney can only speculate on how it may end.  This is frequently because discovery may not be available at the very early stages of the case, and it may be almost impossible to have a meaningful discussion concerning the conclusion of the case absent that material.  Further, a case sometimes has to “mature” before the attorney can develop a sense of the direction it is taking.  Repeated discussions with the assigned prosecutor, as well as participation in motion hearings and status conferences before a judge, also provide defense counsel with important insight into the course, and ultimate outcome, of the case.

It is particularly difficult to determine the outcome of a case when a trial is imminent, because the first step in the trial process – jury selection – contains so many unknowns.  A jury will decide whether to convict or acquit, but nobody involved in the case knows who these key players are until they are actually selected and qualified as jurors.  Juries are selected from large groups of individuals who are questioned so as to ascertain their fitness for service in a particular case.  An individual’s responses to the questions are supposed to enable the judge and attorneys to determine whether they are a good “fit” for that case.  Generally speaking, potential jurors can be excused for two reasons.  The first is “for cause”.  This can occur when there is an articulated, somewhat obvious, reason that undeniably renders the prospective juror unfit for service at that trial.  As a simple example, a prospective juror may be excused for cause if they have a personal relationship with one of the attorneys, the judge, or a victim, in the case.  Continue reading ›

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The recently decided NJ Supreme Court case of State v. Baum stemmed from a prosecution for aggravated manslaughter and death by auto.  Baum, the driver, struck and killed two teenage girls who were walking in the bicycle lane of a major roadway in Kinnelon.  Baum had battled alcoholism for approximately seven years preceding the accident, and also suffered from depression.  His blood alcohol was more than four times the legal limit at the time of the accident.  He had taken a prescribed anti-depressant the night before the accident.  He also took Librium that morning to control his symptoms of alcohol withdrawal.

At trial, Baum argued that he lacked the mental capacity to act purposely, knowingly and/or recklessly (the required mental states for the charged offenses) because of his intoxication, which he claimed was involuntary due to his mental diseases or defects of alcoholism and depression.  He presented expert testimony at trial to support the proposition that his drinking was automatic behavior rather then the product of conscious thought.  His jury, apparently unconvinced by this defense, convicted him of two counts of first-degree aggravated manslaughter, and two counts of second-degree death by auto.  The Court sentenced him to two consecutive 20-year prison terms with an 85% parole disqualifier.

The issue before the Supreme Court was whether the jury charge set forth Baum’s defense in a way that would allow the jury to understand and apply it in light of the facts of the case and Baum’s mental health history.  Affirming the Appellate Division, the Court ruled that the trial judge’s jury charge accurately and intelligibly outlined all of the relevant concepts. Continue reading ›

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