A New Jersey Attorney's Blog
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about, well, the law...
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New Jersey Supreme Court Rules: "I want to talk to Mommy" is Not the Same as "I Want to Remain Silent"
Demetrius Diaz-Bridges is accused of killing his friends' mother, Elizabeth O'Brien, in 2008. Although the matter has not proceeded to trial, there has been pre-trial litigation for over 2 years surrounding a taped confession Diaz-Bridges gave to members of the Morris County Prosecutor's Office.
The Facts
Shortly after the killing, Diaz-Bridges was picked up by law enforcement and interrogated in New Jersey. At first, during a two-hour interrogation, Diaz-Bridges denied any involvement in the homicide. Having little information to suggest involvement by Diaz-Bridges, law enforcement personnel allowed Diaz-Bridges to go on his way--and he did, all the way to North Carolina. And, so, when investigators learned of that move months later, they questioned Diaz-Bridges again, this time in North Carolina.
At the outset, and after being read his Miranda rights, Diaz-Bridges again denied any involvement in O'Brien's death. However, after three-and-a-half hours of questioning, and, after a momentary pause, Diaz-Bridges said, “Can I just call my mom first?” After investigators told Diaz-Bridges that he could talk to his mom at some point, they continued to press him, and Diaz-Bridges "caved", confessing to the killing. Hours later, after Diaz-Bridges completely broke down, again asking for his mother, he provided more details of the homicide, and actually demonstrated how the killing occurred.
A trial court judge suppressed the entire North Carolina confession concluding that as soon as defendant first asked to speak with his mother, the questioning should have ceased because that request “could reasonably be viewed as an assertion of his right to remain silent.” The court's suppression order applied to both the initial request for "mom" and the later request just prior to the demonstration.
The Appellate Division reversed in part, holding that the first part of the confession when Diaz-Bridges asked for his mom could not have been reasonably interpreted by the detectives as an invocation of the right to remain silent. The panel affirmed, however, the suppression of the later, demonstration-portion of the confession. The panel characterized that portion of the statement, both the request to speak to "mom" and the physical actions of Diaz-Bridges, as indicating that he wanted "permission" from his mother before continuing, thus constituting at least an ambiguous invocation of the right to remain silent.
This past week, the Supreme Court of New Jew Jersey, in a rare 3-2 vote, ruled that both portions of the confession--the initial confession and the demonstration--are admissible against Diaz-Bridges. To understand "why", a little background in this area is needed.
Background of the Fifth Amendment Privilege
Any person that has watched Law & Order, Cops, or any other show involving police officers, knows that there exists a "Fifth Amendment right against self-incrimination" or, as it is sometimes called, the "Miranda rights"; you've probably heard those words 1000 times.
But did you know that the right against self-incrimination comes from the United States Constitution and the means through which a law enforcement officer must inform an individual comes from a case called Miranda v. Arizona ("Miranda" rights)? Well, now you do.
Unlike the United States Constitution, however, the New Jersey Constitution does not explicitly refer to the privilege against self-incrimination. Rather, the Supreme Court in New Jersey has held that the right against self-incrimination is "so deeply rooted" in New Jersey's common law, that its inclusion in the State Constitution was unnecessary. Bear in mind though that despite the absence of a constitutional "privilege" in New Jersey's Constitution, Miranda rights must be read in New Jersey (and in the other 49 states).
This distinction is important because under the United States Constitution, as recently confirmed in the United States Supreme Court's 2010 decision in Berghuis v. Thompkins, only an "unambiguous" request to remain silent, e.g., "Hey cop, I don't want to speak to you", will serve as an invocation of Miranda, or the right to remain silent. In New Jersey, however, an "ambiguous" response to police questioning may shed doubt on the voluntariness of a confession. See State v. Alston, 204 N.J. 614 (2011).
That is, under the United States Constitution, if a statement is "equivocal or ambiguous," police officers may forge ahead with an interrogation. In New Jersey, although the interrogation does not have to cease, police must clarify the ambiguous statement.
Some examples from New Jersey caselaw:
-a suspect’s statement that he wanted an opportunity to “lie down and think about it” before responding, although arguably far less ambiguous a reference to the right to remain silent, to be simply a request for some time and not an assertion that police terminate questioning through the invocation of the right to remain silent.
-defendant’s request to speak with paramour before “lay[ing] out his entire involvement” was not an invocation of right to remain silent
-a suspect's request to speak with housemate was not, under the circumstances, invocation of right to remain silent
-a suspect who refused eleven separate times to sign a form waiving his rights, which refusal he explained in terms of his desire not to make a statement, has made the desire to invoke the right to silence sufficiently plain that it must be honored.
-a suspect who repeatedly responded to questions by saying “I can’t talk about it” and who engaged in a persistent pattern of refusal to answer was not obligated to state his position more clearly in order to invoke the right to silence.
Back to Mr. Diaz-Bridges.
There have been cases in New Jersey, State v. Harvey for example, where the New Jersey Supreme Court has concluded, based on "all of the circumstances," that a request to speak to a parent created sufficient ambiguity that the police should have clarified whether the suspect wanted to continue the interrogation. Adopting that approach in State v. Diaz-Bridges, that is, relying on a "totality of the circumstances," the New Jersey Supreme Court concluded that the confession may be used at trial against Diaz-Bridges. The Court concluded that unlike the defendant in Harvey, Diaz-Bridges willingly agreed to speak with the police, meeting with them on multiple occasions and without any coercion to discuss what he knew about the crime. The Court further added that although when the officer confronted defendant with the inconsistencies in his various stories, his demeanor changed and he looked away and began to weep, "one cannot reasonably equate that response with the invocation of any right. "
In closing, there are two things to take away from State v. Diaz-Bridges: (1) the State's case against Diaz-Bridges just got a lot stronger; and (2) if you don't want to respond to police questioning and/or you want a lawyer to assist you, ask for it in plain, unambiguous terms.
As you can see from our summary above and the fact that the New Jersey Supreme Court was split 3-2 (in other words two judges "dissented" or thought the confession should be suppressed), confession-related issues in which ambiguous responses exist will be decided on a case-by-case basis.
So, why risk it? Either ask for an attorney, e.g. "I want an attorney" or invoke your right to silence, e.g. "I don't want to speak with you." And, remain firm in your position, even if you are re-approached by law enforcement personnel (or, what is called, a "re-initiation").
By: Matheu D. Nunn, Esq. on January 24, 2012
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Unemployment 101
More from fellow Einhorn Harris attorney Timothy J. Ford, Esq. In this article, Tim delves into the "basics" of unemployment law.
Unfortunately, this is a topic that has impacted many New Jersey residents over the past several years. Economists may argue about whether the recession is over, but unemployment in New Jersey remains stagnant at 9.1%, slightly above the national average of 9.1%.
This blog will overview the New Jersey Unemployment Compensation Law which acts as a safety net by providing income for workers who have, through no fault of their own, lost their job. Below is a list of the many questions that I get regarding unemployment.
Who is Eligible to Collect Unemployment Benefits?
In order to be eligible for unemployment benefits, you must:
1) file a claim with the Department of Labor and Workforce Development;
2) be able to work;
3) be actively seeking work;
4) be available for work;
5) satisfy a one-week waiting period; and
6) satisfy an earnings requirement.
You must be physically, mentally and legally able to work. Simply because you seek, apply for or accept part-time work, does not mean that you are ineligible for benefits. However, the income generated from the part-time employment may offset and reduce the benefits received.
What is the Earnings Requirement for Eligibility?
In order to be eligible, you must either establish 20 base weeks of employment or earn income of at least 1,000 times minimum wage ($7.25) during his base year. This relates solely to eligibility and not the amount of benefit for which a claimant may be entitled.
How Much Can I Collect?
The weekly benefit is 60% of your average weekly wage, with a maximum of $598. This benefit is increased if you have children: by 7% for the first dependent of the claimant and 4% for the next two dependents for a maximum of three dependents. As long as you continue to meet the qualifications, you may collect unemployment benefits for the total number of base weeks employed in the base week, but not to exceed 26 weeks. Emergency unemployment benefit extensions may be available for up to 99 weeks.
Are Certain Professions Excluded?
Yes. New Jersey precludes some employees from collecting unemployment. Some examples include service by students at a college or university, commissioned real estate brokers, certain agricultural laborers, certain government employees, commissioned securities and insurance brokers and commissioned home-to-home salespersons and demonstrators. In additional, teachers on vacation between academic terms and athletes between seasons are ineligible for benefits. Several others professionals are limited or precluded from eligibility for unemployment.
Can I be Disqualified from Benefits?
Yes. You may be disqualified if you voluntarily terminate your employment (quit your job), for misconduct, for failure to apply for or accept suitable work, certain types of severance or other benefits, fraud, and failure to report to the Department of Labor when required.
What is Voluntary Termination of Employment?
In New Jersey, if you leave your job “without good cause attributable to the work” (you quit), you are disqualified from unemployment benefits. However, if you were compelled to leave your job, that separation from employment is considered involuntary. For example, if you left your job based upon issues related to safety, unhealthy working conditions, your own physical or mental health conditions, or fraud or criminal conduct being engaged in by the employer, your departure would likely be considered involuntary.
What is Misconduct?
Misconduct is fact sensitive and depends on the circumstances of the conduct. Misconduct is improper, intentional, malicious and either a deliberate violation of the employer’s rules or a disregard of standards of behavior which the employer can expect from an employee. Unexcused absences, refusal to comply with lawful orders given by an employer and willful violations of safety standards may qualify as misconduct. If it is determined that you engaged in misconduct which resulted in your termination, you are disqualified for benefits for the week of discharge or suspension and the five weeks immediately thereafter. If the conduct rises to the level or gross misconduct, en employee is disqualified in the same manner as if he or she voluntarily left without good cause. Examples of gross misconduct may include excessive absenteeism or criminal conduct.
How do I File a Claim for Unemployment Benefits?
If you find yourself eligible for unemployment, you can contact the Department of Labor and Workforce Development at one of the regional offices, by telephone or at their website http://lwd.state.nj.us/labor/index.html. The claim is then examined by the Division who contacts your most recent employer. If the employer fails to respond to the Division within 10 days, the Division will rely on the information provided by you and any other sources available. After that time period, the Division will make an initial determination.
What if I am Denied Benefits?
If you are denied benefits, or if your ex-employer believes that you shouldn’t receive unemployment benefits an appeal of the initial determination can be made by filing an appeal within seven (7) calendar days after delivery of the initial determination or ten (10) days after the notification is mailed. If you failure to adhere to this time period will bar your appeal. An appeal tribunal will schedule a hearing to present argument and you may bring an attorney to the hearing. If you feel that the decision of the appeal tribunal is incorrect, you may file an appeal with the Board of Review within ten (10) days after receipt of the decision. The last appeal is to the New Jersey Appellate Division. Notices of appeal with the Appellate Division must be filed within 45 days following the decision of the Board of Review.
Many unemployment matters are fact sensitive and require adherence to strict deadlines. If you have been denied unemployment benefits and want to appeal the denial, you should contact an attorney immediately following your denial. If you are an employer and believe that an employer has wrongfully applied for or been granted unemployment benefits, an attorney can help oppose the application or file an appeal to prevent an increase in your contributions to the unemployment contribution fund. If you have an unemployment issue, do not delay! Seek the assistance of an experienced attorney immediately.
By Timothy J. Ford, Esq.
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Prenups May Not Be Romantic but they are Necessary (just ask Kobe Bryant what he thinks….)
James Destefano, Esq., who I sit in close proximity to here--so close that I heard him typing this article--provides a quick primer on prenuptial agreements...
As many of you already know, Los Angeles Lakers Superstar, Kobe Bryant, is getting divorced. Kobe’s wife, Vanessa, filed a Complaint for Divorce in California just a few weeks ago. While I am not surprised by the fact that Vanessa filed for divorce, I was shocked to learn (as I am sure many of you were as well) that Kobe and Vanessa did not enter into a prenuptial agreement prior to their marriage.
A prenuptial agreement is a contract, entered into by parties prior to their marriage that addresses a variety of issues. Specifically, a prenuptial agreement tends to address issues concerning equitable distribution (of business, real estate, personal property, etc.), alimony and other issues that may arise if the couple were to get divorce. Although a prenuptial agreement may not be right for every couple, it is logical for those individuals with substantial assets, special talents, a business, and/or family wealth to contemplate the protections that a prenuptial agreement can provide.
In Kobe’s case, the fact that he and his wife did not enter into a prenuptial agreement prior to their marriage could end up being a multimillion dollar mistake. Kobe Bryant’s current net worth is approximately $200 Million Dollars[1]. Kobe currently approximately earns $24.8 Million dollars per year from the Los Angeles Lakers (he recently signed a contract extension), and receives additional compensation for apparel sales, advertising, and special appearances[2]. As you can see, Kobe has substantial assets and a significant income which, without the protection of a prenuptial agreement, will be front and center in his divorce proceeding.
Being unfamiliar with California Law, I cannot predict the outcome of Kobe’s case. Nevertheless, it is safe to say that Kobe’s exposure with regard to the issues of alimony and equitable distribution is exponentially higher given the fact that he did not enter into a prenuptial agreement. Indeed, there is no reason to doubt that Kobe’s wife will seek every penny that she is entitled to under California Law. If, however, Kobe had the foresight to enter into a premarital agreement, however, Kobe’s wife would most likely challenge the enforceability of that agreement.
If this were a New Jersey Case, the Bryant’s “fictional prenuptial agreement” would governed by N.J.S.A. 37:2-31 to 37:2-41, which codifies the Uniform Premarital Agreement Act. In New Jersey, a premarital agreement may be found unenforceable for a number of reasons. Most commonly, a premarital agreement will not be enforceable if the party seeking to set aside the agreement proves that (a) the agreement was entered into involuntarily or (b) the agreement, at the time of enforcement, was unconscionable. Moreover, a party may be able to have the terms of a premarital agreement set aside if that party can demonstrate that the other party did not provide a full disclosure of their assets, including, but not limited to, their income and earnings, property, investments, etc. There is no doubt that Vanessa’s attorneys would argue the latter two reasons if not all three if a prenuptial agreement existed in their case. Of course, there are a number of additional reasons why a premarital agreement may be unenforceable. That is why every premarital agreement must be reviewed on a case by case basis.
Prenuptial agreements may not seem romantic, but there is no doubt that a prenuptial agreement can save a party significant time and money in the unfortunate event that their marriage fails. While it is certainly not easy to plan for the demise of your marriage before you are even married, given the lesson that we have learned from Kobe Bryant’s case, it is the only practical way to ensure that your interests are protected if your marriage does ultimately fail. Given the complexity of prenuptial agreements and the various issues that a prenuptial agreement can cover, I would urge anyone who is contemplating marriage or who is planning a wedding to contact Einhorn, Harris, Ascher, Barbarito & Frost, P.C. to discuss whether a prenuptial agreement is appropriate for you.
By: Matheu D. Nunn, Esq. on January 11, 2012
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Andrew S. Berns, Esq. Appointed by Governor to Rutgers Board of Trustees
Andy Berns, one of the partners in my office, Einhorn Harris Ascher Barbarito & Frost, P.C., was appointed by Governor Chris Christie and confirmed by the New Jersey Senate Judiciary Committee as a member of the Rutgers University Board of Trustees.
The Rutgers University Board of Trustees is composed of 59 voting members, of which, only 5 (five) members are appointed by the Governor and must be approved by confirmation by the State Senate.
“This is a great honor,” said Mr. Berns, “I am happy to serve and as an Alumnus of the University I am thrilled to be able to give back to my alma mater.”
Andrew S. Berns, Esq. is the chair of the Einhorn Harris Ascher Barbarito & Frost, PC’s, Employment and Commercial Litigation Group. Andy is also the current Chair of the New Jersey State Ethics Commission.
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DWI/DUI "Do's" and "Dont's"
Michael R. Ascher, an attorney at my firm, Einhorn Harris Ascher Barbarito & Frost, who has been doing criminal work (both prosecution and defense) for over 35 years prepared a list of DWI/DUI oriented tips for the Holidays--I guess you could say it is his "gift" for you all this season! Now, while neither of us condone drinking and driving, perhaps these tips will serve as a reminder as to the type of trouble you can find yourself in...
So what happens if you find yourself at a “Sobriety Checkpoint” and find yourself being told that you are under arrest for being intoxicated?
First, it is important that you take any tests that the police ask you to perform. You must take the breathalyzer test. You must also inform the police of any medical conditions or disabilities that you have that may interfere with your ability to take the tests. Also, it would be in your best interest to also demand and take independent blood and urine tests.
However, if you are arrested, do not answer any questions the police ask. The first thing you should do is obtain advice of an attorney who concentrates his/her practice in DWI law. This attorney’s expertise may help you avoid losing your license or even going to jail.
Can you still be arrested for DWI/DUI if your blood alcohol content (BAC), according to the breathalyzer test given at the checkpoint, is less than the legal limit?
Yes! And again, you need to obtain an attorney who can help you in these situations.
Although your Blood Alcohol Level is below the limit for a per se offense, you could still be convicted of Driving Under the Influence rather than Driving While Intoxicated.
The DWI Statute in New Jersey, has two (2) components:
1) This first is based solely upon Blood Alcohol Level. If your Blood Alcohol Level (BAC) is 0.08 or higher, you are guilty of a per se DWI offense based upon your BAC. That is a first Tier offense with a three (3) month loss of license. For a BAC in equal to or in excess of 0.10, you could lose your license for seven (7) to twelve (12) months, and other fines and penalties would also be possible, and
2) Even though your Blood Alcohol Content is below the per se amount, the State can still prove a violation of the statute by establishing that you were Under the Influence. The State would use the Police Officer’s observations of your performance of sobriety tests, and any evidence of erratic driving or motor violations to prove that you were under the influence. Being “under the influence” means that a driver’s judgment or control is so impaired that it would be improper to drive.
Since a ticket was issued with a BAC less than 0.08, it must be assumed that the Police Officer involved will seek a DWI conviction based upon the “Under the Influence” part of the statute.
It is imperative you contact a lawyer who is knowledgeable in DWI defense law.
Original article can be found at: http://www.einhornharris.com/blog/1696/
By: Matheu D. Nunn, Esq. on January 10, 2012
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Non-Compete Agreement Nonexistent? Are the Employee’s Actions disloyal or unlawful – That is the Question.
Below is a great article written by Tim Ford, one of the attorneys in my office, Einhorn Harris Ascher Barbarito & Frost; full article available at: http://www.einhornharris.com/blog/1732/
"It is always recommended that you have employees execute reasonable restrictive covenants (or non-compete agreements) and confidentiality agreements when you, as the employer, provide employees with confidential and proprietary business information and clients. However, just because your former employee does not have a restrictive covenant/non-compete agreement, does not mean that the employee can steal your clients and confidential information.
Two scenarios are set forth below and are quite common when clients approach me regarding former employees who have left their job with the client and are now competing with his or her former employer.
Scenario 1: An employee of your sales business has resigned. He did not have a restrictive covenant/non-compete or confidentiality agreement with the company. The former employee is now working for a competitor or has started his own business. He is competing with you by using pricing lists and a customer database that he downloaded from your server. He is able to beat your price margins using the pricing information from your business.
Scenario 2: An employee of your sales business has resigned. She did not have a restrictive covenant or confidentiality agreement with the company. She has started her own business that competes with your company. She formed the business while employed by your company. She hired an employee and rented office space during the time period she was employed by your company. She is using the same methods for sales that she learned while working at your company. She is contacting a broad range of clients, including some of those that she had managed while employed by your company. All of the clients are in the public domain and easily ascertainable.
Before continuing to read, think about each scenario and what conduct is lawful.
Generally, the conduct in scenario one is illegal and will allow you to sue your former employee for money damages and injunctive relief. This is because the employee is directly using information that he obtained while in your employ; information which he would not have received otherwise.
While, scenario two exposes an employee you certainly would not want to hire, all of the conduct is scenario two is likely to be regarded as lawful in New Jersey. All employees in the State of New Jersey are bound by a duty of loyalty. What this means is that an employee cannot compete with his employer while he or she is still employed by that employer. Mere planning, without more, is not unlawful. Often, the use of proprietary and confidential information, even without a restrictive covenant or confidentiality agreement, will be perceived as a violation of the duty of loyalty. Furthermore, using this information to compete may result in damages by claims of tortious interference.
Simply the fact that the employee is competing with his or her former employer is not unlawful. Competition is encouraged. In fact, New Jersey law does not prohibit an employee from taking the skills and knowledge they learned from one employer and using those skills with a competitor. It is when the employee takes affirmative steps to harm the employer’s business that constitutes a breach of the duty of loyalty.
Similarly, former employees must not tortiously interfere with the employer’s business interests. A former employee engages in tortuous interference when he or she interferes with his or her employer’s reasonable expectation of economic gain without justification or excuse. Using an employer’s confidential or proprietary information, as in scenario one, may result in damages arising out of a claim for tortuous interference. As a general rule, one must ask whether the conduct goes beyond the rules of the game. If so, you may ask the courts to stop the conduct and seek money damages.
With all of the above being said, it is better to be safe than sorry and always advisable to protect your business from disloyal employees. If one of your employees has left your business and you feel that he or she is unlawfully competing, it is important to contact your attorney and have the attorney put the former employee and his or her new employer on notice of the unlawful conduct.
Even if your former employee signed a restrictive covenant and it is unenforceable or has expired, you may still be able to protect your clients and confidential information while preventing former employees from looting your business. It is important to take action before the conduct escalates and causes irreparable injury. In certain circumstances, your attorney can request injunctive relief and temporary restraints. Delay can be fatal to your business and even prejudice your ability to seek emergent relief.
By: Timothy J. Ford, Esq.
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Demetrius Diaz-Bridges is accused of killing his friends' mother, Elizabeth O'Brien, in 2008. Although the matter has not proceeded to trial, there has been pre-trial litigation for over 2 years surrounding a taped confession Diaz-Bridges gave to members of the Morris County Prosecutor's Office.
The Facts
Shortly after the killing, Diaz-Bridges was picked up by law enforcement and interrogated in New Jersey. At first, during a two-hour interrogation, Diaz-Bridges denied any involvement in the homicide. Having little information to suggest involvement by Diaz-Bridges, law enforcement personnel allowed Diaz-Bridges to go on his way--and he did, all the way to North Carolina. And, so, when investigators learned of that move months later, they questioned Diaz-Bridges again, this time in North Carolina.
At the outset, and after being read his Miranda rights, Diaz-Bridges again denied any involvement in O'Brien's death. However, after three-and-a-half hours of questioning, and, after a momentary pause, Diaz-Bridges said, “Can I just call my mom first?” After investigators told Diaz-Bridges that he could talk to his mom at some point, they continued to press him, and Diaz-Bridges "caved", confessing to the killing. Hours later, after Diaz-Bridges completely broke down, again asking for his mother, he provided more details of the homicide, and actually demonstrated how the killing occurred.
A trial court judge suppressed the entire North Carolina confession concluding that as soon as defendant first asked to speak with his mother, the questioning should have ceased because that request “could reasonably be viewed as an assertion of his right to remain silent.” The court's suppression order applied to both the initial request for "mom" and the later request just prior to the demonstration.
The Appellate Division reversed in part, holding that the first part of the confession when Diaz-Bridges asked for his mom could not have been reasonably interpreted by the detectives as an invocation of the right to remain silent. The panel affirmed, however, the suppression of the later, demonstration-portion of the confession. The panel characterized that portion of the statement, both the request to speak to "mom" and the physical actions of Diaz-Bridges, as indicating that he wanted "permission" from his mother before continuing, thus constituting at least an ambiguous invocation of the right to remain silent.
This past week, the Supreme Court of New Jew Jersey, in a rare 3-2 vote, ruled that both portions of the confession--the initial confession and the demonstration--are admissible against Diaz-Bridges. To understand "why", a little background in this area is needed.
Background of the Fifth Amendment Privilege
Any person that has watched Law & Order, Cops, or any other show involving police officers, knows that there exists a "Fifth Amendment right against self-incrimination" or, as it is sometimes called, the "Miranda rights"; you've probably heard those words 1000 times.
But did you know that the right against self-incrimination comes from the United States Constitution and the means through which a law enforcement officer must inform an individual comes from a case called Miranda v. Arizona ("Miranda" rights)? Well, now you do.
Unlike the United States Constitution, however, the New Jersey Constitution does not explicitly refer to the privilege against self-incrimination. Rather, the Supreme Court in New Jersey has held that the right against self-incrimination is "so deeply rooted" in New Jersey's common law, that its inclusion in the State Constitution was unnecessary. Bear in mind though that despite the absence of a constitutional "privilege" in New Jersey's Constitution, Miranda rights must be read in New Jersey (and in the other 49 states).
This distinction is important because under the United States Constitution, as recently confirmed in the United States Supreme Court's 2010 decision in Berghuis v. Thompkins, only an "unambiguous" request to remain silent, e.g., "Hey cop, I don't want to speak to you", will serve as an invocation of Miranda, or the right to remain silent. In New Jersey, however, an "ambiguous" response to police questioning may shed doubt on the voluntariness of a confession. See State v. Alston, 204 N.J. 614 (2011).
That is, under the United States Constitution, if a statement is "equivocal or ambiguous," police officers may forge ahead with an interrogation. In New Jersey, although the interrogation does not have to cease, police must clarify the ambiguous statement.
Some examples from New Jersey caselaw:
-a suspect’s statement that he wanted an opportunity to “lie down and think about it” before responding, although arguably far less ambiguous a reference to the right to remain silent, to be simply a request for some time and not an assertion that police terminate questioning through the invocation of the right to remain silent.
-defendant’s request to speak with paramour before “lay[ing] out his entire involvement” was not an invocation of right to remain silent
-a suspect's request to speak with housemate was not, under the circumstances, invocation of right to remain silent
-a suspect who refused eleven separate times to sign a form waiving his rights, which refusal he explained in terms of his desire not to make a statement, has made the desire to invoke the right to silence sufficiently plain that it must be honored.
-a suspect who repeatedly responded to questions by saying “I can’t talk about it” and who engaged in a persistent pattern of refusal to answer was not obligated to state his position more clearly in order to invoke the right to silence.
Back to Mr. Diaz-Bridges.
There have been cases in New Jersey, State v. Harvey for example, where the New Jersey Supreme Court has concluded, based on "all of the circumstances," that a request to speak to a parent created sufficient ambiguity that the police should have clarified whether the suspect wanted to continue the interrogation. Adopting that approach in State v. Diaz-Bridges, that is, relying on a "totality of the circumstances," the New Jersey Supreme Court concluded that the confession may be used at trial against Diaz-Bridges. The Court concluded that unlike the defendant in Harvey, Diaz-Bridges willingly agreed to speak with the police, meeting with them on multiple occasions and without any coercion to discuss what he knew about the crime. The Court further added that although when the officer confronted defendant with the inconsistencies in his various stories, his demeanor changed and he looked away and began to weep, "one cannot reasonably equate that response with the invocation of any right. "
In closing, there are two things to take away from State v. Diaz-Bridges: (1) the State's case against Diaz-Bridges just got a lot stronger; and (2) if you don't want to respond to police questioning and/or you want a lawyer to assist you, ask for it in plain, unambiguous terms.
As you can see from our summary above and the fact that the New Jersey Supreme Court was split 3-2 (in other words two judges "dissented" or thought the confession should be suppressed), confession-related issues in which ambiguous responses exist will be decided on a case-by-case basis.
So, why risk it? Either ask for an attorney, e.g. "I want an attorney" or invoke your right to silence, e.g. "I don't want to speak with you." And, remain firm in your position, even if you are re-approached by law enforcement personnel (or, what is called, a "re-initiation").
By: Matheu D. Nunn, Esq. on January 24, 2012
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Unemployment 101
More from fellow Einhorn Harris attorney Timothy J. Ford, Esq. In this article, Tim delves into the "basics" of unemployment law.
Unfortunately, this is a topic that has impacted many New Jersey residents over the past several years. Economists may argue about whether the recession is over, but unemployment in New Jersey remains stagnant at 9.1%, slightly above the national average of 9.1%.
This blog will overview the New Jersey Unemployment Compensation Law which acts as a safety net by providing income for workers who have, through no fault of their own, lost their job. Below is a list of the many questions that I get regarding unemployment.
Who is Eligible to Collect Unemployment Benefits?
In order to be eligible for unemployment benefits, you must:
1) file a claim with the Department of Labor and Workforce Development;
2) be able to work;
3) be actively seeking work;
4) be available for work;
5) satisfy a one-week waiting period; and
6) satisfy an earnings requirement.
You must be physically, mentally and legally able to work. Simply because you seek, apply for or accept part-time work, does not mean that you are ineligible for benefits. However, the income generated from the part-time employment may offset and reduce the benefits received.
What is the Earnings Requirement for Eligibility?
In order to be eligible, you must either establish 20 base weeks of employment or earn income of at least 1,000 times minimum wage ($7.25) during his base year. This relates solely to eligibility and not the amount of benefit for which a claimant may be entitled.
How Much Can I Collect?
The weekly benefit is 60% of your average weekly wage, with a maximum of $598. This benefit is increased if you have children: by 7% for the first dependent of the claimant and 4% for the next two dependents for a maximum of three dependents. As long as you continue to meet the qualifications, you may collect unemployment benefits for the total number of base weeks employed in the base week, but not to exceed 26 weeks. Emergency unemployment benefit extensions may be available for up to 99 weeks.
Are Certain Professions Excluded?
Yes. New Jersey precludes some employees from collecting unemployment. Some examples include service by students at a college or university, commissioned real estate brokers, certain agricultural laborers, certain government employees, commissioned securities and insurance brokers and commissioned home-to-home salespersons and demonstrators. In additional, teachers on vacation between academic terms and athletes between seasons are ineligible for benefits. Several others professionals are limited or precluded from eligibility for unemployment.
Can I be Disqualified from Benefits?
Yes. You may be disqualified if you voluntarily terminate your employment (quit your job), for misconduct, for failure to apply for or accept suitable work, certain types of severance or other benefits, fraud, and failure to report to the Department of Labor when required.
What is Voluntary Termination of Employment?
In New Jersey, if you leave your job “without good cause attributable to the work” (you quit), you are disqualified from unemployment benefits. However, if you were compelled to leave your job, that separation from employment is considered involuntary. For example, if you left your job based upon issues related to safety, unhealthy working conditions, your own physical or mental health conditions, or fraud or criminal conduct being engaged in by the employer, your departure would likely be considered involuntary.
What is Misconduct?
Misconduct is fact sensitive and depends on the circumstances of the conduct. Misconduct is improper, intentional, malicious and either a deliberate violation of the employer’s rules or a disregard of standards of behavior which the employer can expect from an employee. Unexcused absences, refusal to comply with lawful orders given by an employer and willful violations of safety standards may qualify as misconduct. If it is determined that you engaged in misconduct which resulted in your termination, you are disqualified for benefits for the week of discharge or suspension and the five weeks immediately thereafter. If the conduct rises to the level or gross misconduct, en employee is disqualified in the same manner as if he or she voluntarily left without good cause. Examples of gross misconduct may include excessive absenteeism or criminal conduct.
How do I File a Claim for Unemployment Benefits?
If you find yourself eligible for unemployment, you can contact the Department of Labor and Workforce Development at one of the regional offices, by telephone or at their website http://lwd.state.nj.us/labor/index.html. The claim is then examined by the Division who contacts your most recent employer. If the employer fails to respond to the Division within 10 days, the Division will rely on the information provided by you and any other sources available. After that time period, the Division will make an initial determination.
What if I am Denied Benefits?
If you are denied benefits, or if your ex-employer believes that you shouldn’t receive unemployment benefits an appeal of the initial determination can be made by filing an appeal within seven (7) calendar days after delivery of the initial determination or ten (10) days after the notification is mailed. If you failure to adhere to this time period will bar your appeal. An appeal tribunal will schedule a hearing to present argument and you may bring an attorney to the hearing. If you feel that the decision of the appeal tribunal is incorrect, you may file an appeal with the Board of Review within ten (10) days after receipt of the decision. The last appeal is to the New Jersey Appellate Division. Notices of appeal with the Appellate Division must be filed within 45 days following the decision of the Board of Review.
Many unemployment matters are fact sensitive and require adherence to strict deadlines. If you have been denied unemployment benefits and want to appeal the denial, you should contact an attorney immediately following your denial. If you are an employer and believe that an employer has wrongfully applied for or been granted unemployment benefits, an attorney can help oppose the application or file an appeal to prevent an increase in your contributions to the unemployment contribution fund. If you have an unemployment issue, do not delay! Seek the assistance of an experienced attorney immediately.
By Timothy J. Ford, Esq.
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Prenups May Not Be Romantic but they are Necessary (just ask Kobe Bryant what he thinks….)
James Destefano, Esq., who I sit in close proximity to here--so close that I heard him typing this article--provides a quick primer on prenuptial agreements...
As many of you already know, Los Angeles Lakers Superstar, Kobe Bryant, is getting divorced. Kobe’s wife, Vanessa, filed a Complaint for Divorce in California just a few weeks ago. While I am not surprised by the fact that Vanessa filed for divorce, I was shocked to learn (as I am sure many of you were as well) that Kobe and Vanessa did not enter into a prenuptial agreement prior to their marriage.
A prenuptial agreement is a contract, entered into by parties prior to their marriage that addresses a variety of issues. Specifically, a prenuptial agreement tends to address issues concerning equitable distribution (of business, real estate, personal property, etc.), alimony and other issues that may arise if the couple were to get divorce. Although a prenuptial agreement may not be right for every couple, it is logical for those individuals with substantial assets, special talents, a business, and/or family wealth to contemplate the protections that a prenuptial agreement can provide.
In Kobe’s case, the fact that he and his wife did not enter into a prenuptial agreement prior to their marriage could end up being a multimillion dollar mistake. Kobe Bryant’s current net worth is approximately $200 Million Dollars[1]. Kobe currently approximately earns $24.8 Million dollars per year from the Los Angeles Lakers (he recently signed a contract extension), and receives additional compensation for apparel sales, advertising, and special appearances[2]. As you can see, Kobe has substantial assets and a significant income which, without the protection of a prenuptial agreement, will be front and center in his divorce proceeding.
Being unfamiliar with California Law, I cannot predict the outcome of Kobe’s case. Nevertheless, it is safe to say that Kobe’s exposure with regard to the issues of alimony and equitable distribution is exponentially higher given the fact that he did not enter into a prenuptial agreement. Indeed, there is no reason to doubt that Kobe’s wife will seek every penny that she is entitled to under California Law. If, however, Kobe had the foresight to enter into a premarital agreement, however, Kobe’s wife would most likely challenge the enforceability of that agreement.
If this were a New Jersey Case, the Bryant’s “fictional prenuptial agreement” would governed by N.J.S.A. 37:2-31 to 37:2-41, which codifies the Uniform Premarital Agreement Act. In New Jersey, a premarital agreement may be found unenforceable for a number of reasons. Most commonly, a premarital agreement will not be enforceable if the party seeking to set aside the agreement proves that (a) the agreement was entered into involuntarily or (b) the agreement, at the time of enforcement, was unconscionable. Moreover, a party may be able to have the terms of a premarital agreement set aside if that party can demonstrate that the other party did not provide a full disclosure of their assets, including, but not limited to, their income and earnings, property, investments, etc. There is no doubt that Vanessa’s attorneys would argue the latter two reasons if not all three if a prenuptial agreement existed in their case. Of course, there are a number of additional reasons why a premarital agreement may be unenforceable. That is why every premarital agreement must be reviewed on a case by case basis.
Prenuptial agreements may not seem romantic, but there is no doubt that a prenuptial agreement can save a party significant time and money in the unfortunate event that their marriage fails. While it is certainly not easy to plan for the demise of your marriage before you are even married, given the lesson that we have learned from Kobe Bryant’s case, it is the only practical way to ensure that your interests are protected if your marriage does ultimately fail. Given the complexity of prenuptial agreements and the various issues that a prenuptial agreement can cover, I would urge anyone who is contemplating marriage or who is planning a wedding to contact Einhorn, Harris, Ascher, Barbarito & Frost, P.C. to discuss whether a prenuptial agreement is appropriate for you.
By: Matheu D. Nunn, Esq. on January 11, 2012
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Andrew S. Berns, Esq. Appointed by Governor to Rutgers Board of Trustees
Andy Berns, one of the partners in my office, Einhorn Harris Ascher Barbarito & Frost, P.C., was appointed by Governor Chris Christie and confirmed by the New Jersey Senate Judiciary Committee as a member of the Rutgers University Board of Trustees.
The Rutgers University Board of Trustees is composed of 59 voting members, of which, only 5 (five) members are appointed by the Governor and must be approved by confirmation by the State Senate.
“This is a great honor,” said Mr. Berns, “I am happy to serve and as an Alumnus of the University I am thrilled to be able to give back to my alma mater.”
Andrew S. Berns, Esq. is the chair of the Einhorn Harris Ascher Barbarito & Frost, PC’s, Employment and Commercial Litigation Group. Andy is also the current Chair of the New Jersey State Ethics Commission.
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DWI/DUI "Do's" and "Dont's"
Michael R. Ascher, an attorney at my firm, Einhorn Harris Ascher Barbarito & Frost, who has been doing criminal work (both prosecution and defense) for over 35 years prepared a list of DWI/DUI oriented tips for the Holidays--I guess you could say it is his "gift" for you all this season! Now, while neither of us condone drinking and driving, perhaps these tips will serve as a reminder as to the type of trouble you can find yourself in...
So what happens if you find yourself at a “Sobriety Checkpoint” and find yourself being told that you are under arrest for being intoxicated?
First, it is important that you take any tests that the police ask you to perform. You must take the breathalyzer test. You must also inform the police of any medical conditions or disabilities that you have that may interfere with your ability to take the tests. Also, it would be in your best interest to also demand and take independent blood and urine tests.
However, if you are arrested, do not answer any questions the police ask. The first thing you should do is obtain advice of an attorney who concentrates his/her practice in DWI law. This attorney’s expertise may help you avoid losing your license or even going to jail.
Can you still be arrested for DWI/DUI if your blood alcohol content (BAC), according to the breathalyzer test given at the checkpoint, is less than the legal limit?
Yes! And again, you need to obtain an attorney who can help you in these situations.
Although your Blood Alcohol Level is below the limit for a per se offense, you could still be convicted of Driving Under the Influence rather than Driving While Intoxicated.
The DWI Statute in New Jersey, has two (2) components:
1) This first is based solely upon Blood Alcohol Level. If your Blood Alcohol Level (BAC) is 0.08 or higher, you are guilty of a per se DWI offense based upon your BAC. That is a first Tier offense with a three (3) month loss of license. For a BAC in equal to or in excess of 0.10, you could lose your license for seven (7) to twelve (12) months, and other fines and penalties would also be possible, and
2) Even though your Blood Alcohol Content is below the per se amount, the State can still prove a violation of the statute by establishing that you were Under the Influence. The State would use the Police Officer’s observations of your performance of sobriety tests, and any evidence of erratic driving or motor violations to prove that you were under the influence. Being “under the influence” means that a driver’s judgment or control is so impaired that it would be improper to drive.
Since a ticket was issued with a BAC less than 0.08, it must be assumed that the Police Officer involved will seek a DWI conviction based upon the “Under the Influence” part of the statute.
It is imperative you contact a lawyer who is knowledgeable in DWI defense law.
Original article can be found at: http://www.einhornharris.com/blog/1696/
By: Matheu D. Nunn, Esq. on January 10, 2012
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Non-Compete Agreement Nonexistent? Are the Employee’s Actions disloyal or unlawful – That is the Question.
Below is a great article written by Tim Ford, one of the attorneys in my office, Einhorn Harris Ascher Barbarito & Frost; full article available at: http://www.einhornharris.com/blog/1732/
"It is always recommended that you have employees execute reasonable restrictive covenants (or non-compete agreements) and confidentiality agreements when you, as the employer, provide employees with confidential and proprietary business information and clients. However, just because your former employee does not have a restrictive covenant/non-compete agreement, does not mean that the employee can steal your clients and confidential information.
Two scenarios are set forth below and are quite common when clients approach me regarding former employees who have left their job with the client and are now competing with his or her former employer.
Scenario 1: An employee of your sales business has resigned. He did not have a restrictive covenant/non-compete or confidentiality agreement with the company. The former employee is now working for a competitor or has started his own business. He is competing with you by using pricing lists and a customer database that he downloaded from your server. He is able to beat your price margins using the pricing information from your business.
Scenario 2: An employee of your sales business has resigned. She did not have a restrictive covenant or confidentiality agreement with the company. She has started her own business that competes with your company. She formed the business while employed by your company. She hired an employee and rented office space during the time period she was employed by your company. She is using the same methods for sales that she learned while working at your company. She is contacting a broad range of clients, including some of those that she had managed while employed by your company. All of the clients are in the public domain and easily ascertainable.
Before continuing to read, think about each scenario and what conduct is lawful.
Generally, the conduct in scenario one is illegal and will allow you to sue your former employee for money damages and injunctive relief. This is because the employee is directly using information that he obtained while in your employ; information which he would not have received otherwise.
While, scenario two exposes an employee you certainly would not want to hire, all of the conduct is scenario two is likely to be regarded as lawful in New Jersey. All employees in the State of New Jersey are bound by a duty of loyalty. What this means is that an employee cannot compete with his employer while he or she is still employed by that employer. Mere planning, without more, is not unlawful. Often, the use of proprietary and confidential information, even without a restrictive covenant or confidentiality agreement, will be perceived as a violation of the duty of loyalty. Furthermore, using this information to compete may result in damages by claims of tortious interference.
Simply the fact that the employee is competing with his or her former employer is not unlawful. Competition is encouraged. In fact, New Jersey law does not prohibit an employee from taking the skills and knowledge they learned from one employer and using those skills with a competitor. It is when the employee takes affirmative steps to harm the employer’s business that constitutes a breach of the duty of loyalty.
Similarly, former employees must not tortiously interfere with the employer’s business interests. A former employee engages in tortuous interference when he or she interferes with his or her employer’s reasonable expectation of economic gain without justification or excuse. Using an employer’s confidential or proprietary information, as in scenario one, may result in damages arising out of a claim for tortuous interference. As a general rule, one must ask whether the conduct goes beyond the rules of the game. If so, you may ask the courts to stop the conduct and seek money damages.
With all of the above being said, it is better to be safe than sorry and always advisable to protect your business from disloyal employees. If one of your employees has left your business and you feel that he or she is unlawfully competing, it is important to contact your attorney and have the attorney put the former employee and his or her new employer on notice of the unlawful conduct.
Even if your former employee signed a restrictive covenant and it is unenforceable or has expired, you may still be able to protect your clients and confidential information while preventing former employees from looting your business. It is important to take action before the conduct escalates and causes irreparable injury. In certain circumstances, your attorney can request injunctive relief and temporary restraints. Delay can be fatal to your business and even prejudice your ability to seek emergent relief.
By: Timothy J. Ford, Esq.
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Handling a Child Sex Abuse Case
I came across this great article written by Mike Ascher, a partern in my office, Einhorn Harris Ascher Barbarito & Frost. If you find yourself confronted with one of these cases, the below information may prove helpful.
Allegations of sexual abuse upon children are far more powerful than any other criminal accusation. They evoke instant revulsion and sympathy. The younger the child, the greater the adverse reaction by prosecutors, judges and more importantly, jurors. Many jurors may initially tend to disbelieve that such offenses occur, but invariably they ask themselves two critical questions: (1) Why is this child coming forward; and (2) Where did he or she gain knowledge about such sordid sexual details.[1] Unfortunately, for the defense attorney, this scenario creates what is tantamount to a shift in the burden of persuasion. The State may technically have the burden of proof, but the jury will filter its consideration of the case based upon the these two questions. Therefore, the usual approach must be discarded and pre-trial discovery becomes more important and extensive. Similarly, pre-trial motion practice and R.104 hearings become critical tools in preparing an effective defense. The following is an approach to preparing for trial in this category of cases which involve either a very young witness or an older witness who was abused at a younger age.
DEVELOPING YOUR THEME
The thematic approach must focus primarily on the two questions. It requires exhaustive examination of the following issues which surround the initial and any subsequent disclosure of abuse:
1. When the disclosure was made;
2. To whom it was made;
3. How it was made;
4. What was described; and
5. Why would the accusation burden the particular time.
The answer to these questions provides the framework for the entire case, including discovery, pre-trial motions, motions in limine and overall trial strategy and tactics.
DISCOVERY
The State will never provide all necessary information. The defense of sexual abuse cases requires extensive discovery motions and independent investigation. The life of the accuser and his/her family must also be examined to determine if there is an explanation for the accusations other than the “truth”.
THE K.A.W. APPLICATION
Invariably, the initial complaint and indictment will set forth a broad range of time within which the sexual abuse incidents allegedly occurred. Although the State need not provide specific dates on which incidents occurred, it does have a duty to narrow the time frame to provide the defendant the ability to confront the allegations. State v. K.A.W., 104 N.J. 112 (1986). A motion to dismiss the indictment accompanied by an application for a bill of particulars is critical. It will require the State to make a diligent inquiry and to narrow the time frame, if not to an exact date, then to seasons of the year, incidents in the victim’s live, such as a death in the family or change of family member’s job, routine, the beginning of the school year, vacation time or other extracurricular activities. K.A.W. at 123.
The K.A.W. motion must be couched in terms of dismissing the indictment, which the Court will invariably not do unless there exists some independent ground. However, in deciding the motion, the Court should require the State to make an additional diligent inquiry as to the time frame. That will usually result in additional statements being taken by witnesses, including the accuser (always the accuser -- never “alleged victim.”) The State cannot avoid dismissal of the indictment merely by positing that it has turned over to defendant all information “at its disposal,” or that its “information gathering events represents its best efforts.” K.A.W. at 121. The State must make additional efforts to narrow the time base upon the age and intelligence of the victim, the extent and thoroughness of the investigative efforts actually made, whether there was a continuous course of conduct. K.A.W. at 122.
If the K.A.W. application is successful, discovery will be forthcoming and will hopefully obtain additional statements providing material for cross examination and to address the “why question”.
DISCLOSURE MOTIONS
Perhaps the most critical issues in any child sexual abuse case centers around the disclosure and the facts surrounding it. Under most circumstances, the accuser will make a disclosure, which, in turn, will result in parallel investigations being conducted by both the Division of Youth and Family Services and a law enforcement agency.[2] Such investigations are conducted pursuant to statutory authority set forth in Tile 9, N.J.S.A. 9:8.36(a). Where there has been a parallel or independent DYFS investigation, the defense is entitled to obtain relevant information notwithstanding the confidentially which surrounds DYFS records. N.J.S.A. 9:6-8.10A; State v. Allen, 70 N.J. 474 (1976); State v. Van Dyke, 361 N.J. Super. 403 (App. Div. 2003); State v. L.J.P., 270 N.J. Super. 429 (App. Div. 1994); State v. Cusick, 219 N.J. Super. 452 (App. Div. 1987).
A motion must be directed for a “Cusick hearing” requiring the Court to review the DYFS records in camera, and to provide the defendant with all relevant material. Clearly, defendant is entitled to obtain statements obtained by DYFS from the accuser, treating therapist and anyone to whom disclosure has been made. The application permits the Court to pierce not only the DYFS privilege, but other privileges as long as the defendant can show a compelling need for the material it seeks. Barring the defense from obtaining relevant exculpatory information constitutes reversible error. Cf., State v. L.J.P. 270 N.J. Super. 429 (App. Div. 1994). Psych record containing recantation.
The defendant is not only entitled to obtain DYFS records, but can obtain other privileged information, including records of physicians, psychologists and mental health professionals.
DYFS and the prosecutor may have obtained releases from mental health professionals. That obviously constitutes a waiver of any privilege. Even if such a waiver does not exit, a defense motion will be successful where there exists a legitimate need for the shielded evidence, materiality to a trial issue, and the material sought is not available from other less intrusive sources. L.J.P., supra; see also State v. McBride, 213 N.J.Super. 255 (App. Div. 1996). A defendant’s rights under the Sixth Amendment and our State Constitution require the release of privileged records, following an in camera review, as long as defendant can show by a preponderance of the evidence the information is necessary and cannot otherwise be obtained.
Similarly, if disclosure has been made to others such as school personnel, an application should be made to obtain those school records. Such an application must be made upon notice to the Board of Education to assure confidentiality, which is pierceable based upon the factors above. School records may also be useful to establish other reasons for the accuser’s disclosure such as disciplinary or emotional problems.
Additionally, all such records may become relevant material if they contain information revealing other accusations of sexual abuse against third parties which disclose that the accuser gained sexual knowledge or experience as a result of incidents occurring with individuals other than the accused. State v. Budis, 125 N.J. 519 (1991).
OTHER LITIGATION MATERIALS
Special attention must be paid to other litigation which may have involved either the accuser or his/her family. Certainly, if the accuser has a juvenile record, the defendant is entitled to pierce statutory confidentially and obtain those records. State v. Davis, supra. Similarly, if the State, DYFS or the prosecutor have been involved in an investigation of the family in the past, defendant should make an application to secure that material. For example, if there had been a complaint by the defendant against accuser’s other parent, an application should be made for discovery of that material since it would be relevant on the issues of credibility. See, e.g., State v. P.H. If the family has been embroiled in divorce, custody or other litigation, all pleadings may be obtained since they are public record.
COMPELLING R. 104 HEARINGS
The evidence rules and case law are filled with opportunities to obtain pre-trial hearings pursuant to the provisions of Evidence R. 104. Such preliminary hearings are available on a multitude of issues, including fresh complaint, rape shield statute, and suggestibility.
THE MICHAELS’ HEARING
The manner of disclosure is always highly significant, if it not be determinative in a child sex abuse case. It is now well settled the use of coercive or highly suggestive interrogation techniques distort a child witness’ recollection of events undermining the reliability of subsequent testimony concerning the sexual abuse accusations. State v. Michaels, 36 N.J. 299 (1999).
Interviewing a child accuser is a difficult task which is far more difficult with younger children. That difficulty leads to the use of improper interrogation techniques. However, the issue of suggestibility exists regardless of the accuser’s age. It merely diminishes in importance as an accuser is older. The determination of admissibility of pre-trial statements encompass all relevant circumstances, including the person or persons to whom a statement was made, the manner and form of interrogation, the physical and mental condition of the accuser, the use of inducements, threats or bribes, and the underlying believability or trustworthiness of the statement. As stated by the Michael court:
The basic issue to be addressed at a pre-trial hearing is to determine the reliability of out of court and in court testimony of a alleged child sex abuse victim owing to improper interviewing techniques is whether pre-trial events, the investigatory interviews and the interrogations, were so suggestive that they give rise to substantial likelihood of irreparably misstating a false recollection of material facts bearing on defendant’s guilt.
To entitle a defendant to such a pre-trial hearing there must be a showing of “some evidence” that the victim’s statements were products of suggestive or coercive techniques. The specific factors supporting unreliability include interviewer bias, repeated leading questions, multiple interviews, incessant questioning, vilification of defendant, ongoing contact between children and references to their statements, and use of threats, bribes and cajoling as well as failure to videotape or other document initial interview sessions.
Once a Michael’s hearing is ordered, it provides a wealth of opportunity to examine the State’s witnesses, including the accuser.
THE FRESH COMPLAINT HEARING
Fresh complaint evidence is admissible pursuant to the provisions of Evidence R.803(c)(2). Such evidence represents a subset of the excited utterance rule. Admission of such testimony requires a R. 104 Hearing.
The first type of fresh complaint testimony arises from an “excited utterance” arising under the stress of excitement of a particular event, made without time to deliberate or fabricate. It may be used as substantive evidence. State v. Hill, 121 N.J. 150 (1990).
The second type of fresh complaint evidence is not substantive since it is not admitted into evidence to prove the offense. Rather, it is admissible to explain to the jury that the alleged victim did confide in someone sought out for sympathy, solace, comfort, protection advice or guidance. State v. Pillar, 359 N.J. Super 49 (App. Div.), certif. denied, 177 N.J. 572 (2003). Previously, this category of fresh complaint was admissible only if it arose from self-motivated statements by the accuser. However, it is now admissible if it was elicited by “general non-coercive questioning” and if the statements were made under circumstances having the necessary spontaneity and voluntariness to qualify as a fresh complaint. State v. Pillar, supra at 282. However, any “fresh complaint,” responses which emanate from pointed, inquisitive or coercive interrogation would not be admissible. The admissibility of determination requires a preliminary hearing for the judge to consider the following factors:
1. the age of the victim,
2. the circumstances under which the interrogation takes place;
3. the victim’s relationship with the interrogator, i.e., relative, friend, professional, counsel or authority, and the party who initiated discussion
4. the type of questions asked -- whether they are leading and the specificity regarding the alleged abuser and the acts alleged.
Hill, supra at 121, N.J. at 168.
When young children are the accusers, there is greater latitude permitted with respect to the nature and type of questioning. Hill, supra at 167. However, where there is clear coercive questioning, statements of even young children are deemed inadmissible due to the lack of “self motivation.”
The admission of fresh complaint testimony at trial creates a significant potential for prejudice. The testimony must be limited to the existence of “complaint,” and the court must take steps to ensure that unnecessary details of what allegedly happened are not repeated in the jury’s presence. State v. Hill, supra. The only details which may properly be testified about are those which are minimally necessary to identify the subject matter of the complaint. If the testimony exceeds those parameters, immediate limiting instructions must be given by the trial court that the testimony is not to be considered as substantive evidence that the alleged sexual abuse occurred. More importantly, that the evidence may not be used to bolster the credibility of the alleged victim. In essence, the fresh complaint testimony is only admissible to explain the apparent, “self-contradiction,” jurors might find in the absence of the evidence of some complaint. This type of fresh complaint testimony is only admissible if the victim testifies at the trial. Hill, supra at 163. Again, the R.104 hearing conducted on this issue provides significant opportunity to gain advantage at trial.
DELAYED DISCLOSURE
A significant lapse of time may specifically affect the admissibility of the fresh complaint statement. However, the delay is merely a factor to be considered in determining the weight to ascribe to the evidence. State v. Bethune, 232 N.J. Super 532 (App. Div. 1989), affirmed, 121 N.J. 137 (1990).
Thus, a substantial lapse of time between the alleged incident and the time of making the complaint can be overlooked if it is otherwise trustworthy, based upon the age of the accuser, and the circumstances surrounding the giving of a statement. As expressed in Bethune, supra, this recognizes the “special vulnerability” of children to be cajoled and coerced into remaining silent by their abuser. In certain circumstances, a delay of a year was not deemed to bar testimony, since the accuser had been subject to an “aura of intimidation.” In that particular case, the accuser had allegedly been threatened by the abuser that she would be killed if she revealed the abuse. State v. L.P., 352 N.J. Super 369 (App. Div.) certif. denied, 174 N.J. 546 (2002). The lapse of time was explained by that fact of the accusers eventual removal from the home which ended the intimidation of the accused. A delay of three years did not bar a fresh complaint testimony where the child victim was threatened with being removed from her home and placed in a shelter if she disclosed the information and then revealed it after leaving. State v. Hummel, 132 N.J. Super 412 (App. Div.), certif. denied, 67 N.J. 102(1979).
If fresh complaint testimony is deemed admissible after a 104 hearing, great pains should be made to limit it. Counsel should object to multiple witnesses presenting the testimony to avoid the impression that the prosecution has gathered a greater number of witnesses than the defense.
Similarly, the jury must be instructed that the fresh complaint evidence is limited to the proposition of neutralizing the inference that otherwise might be drawn that the accuser’s behavior was inconsistent with the claim of sexual abuse. State v. Bethune, supra. Morever, the jury charge must make it clear that the fresh complaint testimony cannot be utilized to bolster the victim’s credibility or to prove the truth of the charges, and it only exists to dispel the potential inference that the victim was silent.
THE CHILD SEXUAL ABUSE ACCOMMODATIONS SYNDROME
Often times the State will attempt to explain away the lack of fresh complaint, delay in reporting, initial denial, or subsequent recantation of the accuser by utilizing expert testimony of the Child’s Sexual Abuse Accommodation Syndrome (CSAAS). That syndrome does not constitute a diagnosis. Rather, it provides a behavioral science explanation of how certain child sexual abuse victims react. As explained in State v. J.Q., 130 N.J. 554 (1993), CSAAS testimony has a non-substantive purpose. It can be utilized to rehabilitate a victim’s testimony when the defense is asserts that a child’s delay in reporting the abuse or recanting it indicates that the child was unworthy of believe. J.Q., supra at 564. Testimony about the syndrome cannot be used as substantive evidence. The syndrome is based upon certain preconditions:
1. secrecy;
2. helplessness;
3. entrapment;
4. delayed, conflicted and unconvincing disclosure; and
5. retraction or reversal of accusation.
Significantly, those conditions can exist based upon the existence of other psychological conditions such as extreme poverty or generalized psychological abuse. The existence of the underlying CSAAS, does not prove the existence of sexual abuse at all. J.Q. at 573.
There exists no justification for using CSAAS evidence as affirmative proof that abuse has occurred with respect to any particular child who may “fit” the model. Id. at 582. An expert may not render an opinion as to a particular witness’ credibility. They may only testify to the existence of the syndrome as an explanation of the accuser’s behavior. CSAAS testimony must be general at most. It may be utilized to buttress fresh complaint as evidence, since it explains away the delay element of the fresh complaint document. State v. L.P., 352 N.J. Super 369 (App. Div.), certif. denied, 174 N.J. 546 (2002). When accused, threaten to kill - lapse of 3 year spontaneous fresh Complaint.
PRACTICE NOTE
It is vitally important to obtain a CSAAS report from the State’s proposed witness and to obtain your own witness for rebuttal purposes. Moreover, if the State chooses not to present CSAAS testimony, that decision must be explored on the record. The best practice is to continually ask the State if they are presenting such evidence. If they do not, no comment can be made by the State during summation to “explain away” delayed reporting, recantation, or other CSAAS factors.
Significantly, when CSAAS testimony is admitted it eliminates the need for an instruction to the jury to disregard any delay in reporting the abuse when evaluating a victim’s credibility. State v. P.H., 178 N.J. 378 (2004).
Defendant is entitled to present evidence regarding a child’s delay in reporting alleged acts since it impacts the jury’s evaluation of the child’s credibility. State v. P.H., supra. In that case our Supreme Court noted that the testimony at trial revealed that the delay in reporting was “intertwined” with other evidential factors which had a clear effect upon the accuser’s credibility. Specifically, testimony at trial revealed that the child accuser was undergoing disciplinary problems at the time of the alleged abuse and that the child had admitted efforts to gain attention from her mother. Additionally, there had been prior denials that the accused had touched her sexually.
Under those circumstances, both the Appellate Division and ultimately the Supreme Court agreed that the trial court’s instruction which directed the jury to disregard the delay when assessing the child’s credibility constituted a violation of Evidence R. 607, as well as the Confrontation Clause.
The decision in P.H., makes it all the more critical to develop answers to the question of why a child accuser creates and presents the accusations. For example, where a child accuser expressed a desire to discontinue visitation, such facts are admissible. It is critically important to explain the child’s motivation for making the accusations. State v. E.B., 348 N.J. Super 336 (App. Div.), certif. denied, 174 N.J. 192 (2002).
For an excellent discussion regarding the use and misuse of a Child’s Sexual Abuse Accommodation Syndrome see the much divided opinion in State v. R. B., 183 N.J. 308 (2005); more particularly the thoughtful discussion of Justice Albine who criticized the majority’s affirmance of the conviction for sexual abuse offense. There, the State’s entire case rested upon the credibility of the child accuser, and was unsupported by any other evidence. See also, State v. Schnobel, 196 N.J. 116 (2008), discussing the nexus between CSAAS testimony and the existence of third party sexual abuse.
EVIDENCE RULE 803(C)(27) STATEMENTS BY A CHILD RELATED TO A SEXUAL OFFENSE
This evidence rule permits the introduction of a statement by a child under the age of 12 in certain circumstances. It requires a request for a R. 104 Hearing. The Rule requires the following condition for a statement to be admissible: (a) the proponent makes known the intention to offer the statement and its contents to provide a fair opportunity to prepare to meet it; (b) a finding arising from a Rule 104(a) hearing that based on the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) either the child testifies at the proceeding or the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse.
At the outset, it is fairly clear that the final section of the Rule regarding unavailable child witness is no longer viable pursuant to the decision in Crawford v. Washington, 541 U.S. 36 (2004). See, State v. Burr, 392 N.J. Super 538 (App. Div.), affirmed and remanded, 195 N.J. 119 (2008) (wherein the Appellate Division noted that it entertained considerable doubt as to the continuing validity of the unavailability section of the Rule).
At the R. 104 Hearing, the trial court must consider the totality of circumstances that surround the statement proffered by the State. In addition to the overall trustworthiness requirement, to be admissible, the out of court statement must satisfy the requirements of the Confrontation Clause by possessing independent indicia of reliability and inherent trustworthiness, without reference to other evidence at trial. Idaho v. Wright, 497 U.S. 805 (1990); State v. D.G., 157 N.J. 112 (1999). Thus, a court may not compare the child’s statement and a defendant’s confession to establish trustworthiness. See, e.g., State v. J.G., 261 N.J. Super 409, (App. Div.), certif. denied, 133 N.J. 436 (1993). Pursuant to the decision in Crawford, supra, if the statement is deemed testimonial it may not be admitted, unless the defendant has had a prior opportunity to cross examine the declarant.
During the R. 104 hearing, the following factors should be explored:
1. The extent to which the statement was made with or without suggestive questioning - and the mental state of declarant at the time;
2. the use of terminology unexpected of a child of a similar age;
3. a lack of a motive to fabricate - objectivity of the witness - individual powers of the witness’ ability to perceive or remember.
Significantly, the requirement to hold a R. 104 hearing is mandatory. State v. D.G., supra. There must also be a specific statement of findings to support admissibility. At no time should the R.104 hearing be waived.
Where the State is permitted to introduce testimony under this Rule, it is especially important to proffer testimony establishing that the accuser had a motive to make a false accusation. Moreover, if there exists a history of false accusations made against others, that fact is admissible, even in light of the provisions of the rape shield law. State v. B.M., 397 N.J. Super 367 ( ).
PIERCING THE RAPE SHIELD LAW
Pursuant to statute N.J.S.A 2C:14-7, events of a victim’s previous sexual conduct is generally deemed inadmissible. If Defendant seeks to admit such evidence, an application must be made prior to the Trial.
The statute contains narrow narrative tests determining the circumscribed situations where victims’ prior sexual conduct can be considered as relevant. The language of the Rape Shield Law provides that the victim’s prior sexual conduct is only admissible:
“If the Court finds that evidence offered by the Defendant regarding the sexual conduct of the victim is relevant and highly material and reaches the requirements of subsections (c) and (d) of the section and that the probative value of the evidence offered substantially outweighs its collateral nature of the probability that its admission will create undue prejudice, confusion of the issues or unwarranted invasion of the privacy of the victim”.
Upon review, our Supreme Court concluded that this language violated the Confrontation Clause. State v. Garron, 177 N.J. 147, 172 (2003). The Court declared that if the evidence of prior sexual conduct is relevant and necessary to a fair determination of the issues, the admission of the evidence is constitutionally compelled.
The Rape Shield Law does have application in child sexual abuse cases. For example, in State v. Budis, 125 N.J. 519 (1991), the Appellate Division reversed the conviction of the Defendant who had attempted to admit testimony about the child accuser’s prior abuse at the hands of another person. The Trial Court had relied upon the Rape Shield statute and restricted the Defendant’s examination of a nine year old victim and the police witness regarding prior sexual assault on the victim by another. The exclusion was deemed to be reversible error since the Defendant had the right to explain to the Jury how a girl of such tender years could describe the sexual acts that she had attributed to him. The Court reinforced the concept that the Jurors, the sole judges of credibility, were entitled to hear evidence that the Defendant may not have been the sole source of the victim’s sexual knowledge. See also, State v. Schnoebl, supra; State v. Guenther, 181 N.J. 129 (2004); State v. Ross, 240 N.J. Super 246 (1991). (Where the Appellate Division reversed a conviction based upon the Court’s refusal to admit testimony regarding two separate sexual incidents involving the complaining witness that had been documented in DYFS records). Where there are allegations of the accuser of having made false allegations, the Rape Shield Law is not implicated because such false allegations do not constitute prior sexual conduct. State v. Guenther, 181 N.J. 129 (2004); State v. R.E.B., 385 N.J. Super 72 (App. Div. 2006); State v. Bray, 356 NJ Super 485 (App. Div. 2003). Where claim virgin after alleged act.
To obtain a Hearing, the Defendant must provide a meaningful proffer establishing “clear proof”, that the alleged prior sexual act did in fact occur. Budis, supra. State v. Buschan 360 N.J. Super 346 (App. Div. 2003). The relevance of prior sexual abuse clearly is dependent upon the similarity between the acts.
The Court must also weigh the possibility of prejudice, to the accuser, including likely trauma and the extent to which privacy may be invaded. Budis, supra. The issue of prejudice to the child may be reduced if evidence is establishable from other sources. However, if the accuser must be questioned, Defense counsel will be precluded from excessive cross-examination. Budis, supra.
CONCLUSION
Child Sexual Abuse cases are inherently difficult, but present incredible opportunities for pre-trial hearings which can and must be conducted on all available issues. This presents an incredible opportunity to pre-try your case.
CAUTIONARY PRACTICE NOTE
In State v. Nyhammer overruled the Appellate Division which had reversed Defendant’s conviction for sexual assault of a seven year old. The Appellate Division had ruled that the admission of a video-taped statement of the accuser at trial violated the rule espoused in Crawford v. Washington, 541 U.S. 36 (2004).
At the Trial, the accuser did testify and the State introduced a video tape statement taken by a Detective which contained a description of sexual abuse. The Appellate Division made an analysis of Evidence Rule 803(c)(27), emphasizing that to be an admissible statement, it must be evaluated at a R. 104 Hearing to establish trustworthiness of the Court statement. State v. D.G., 157 N.J. 112 (1999). The Appellate Division assumed that the Trial Court’s decision on the trustworthiness issue was supported by the trial proofs and then analyzed its admissions under the Confrontation Clause and Crawford v. Washington, supra. It then deemed the accuser’s video-taped statement to be testimonial. The Court reasoned that the video-taped statement constituted the main evidence against the Defendant. Interestingly, during her trial testimony, the accuser was totally unresponsive on direct. She did not repeat the accusations appearing on the video. Due to the unique circumstances, the Appellate Division found that the video-tape statement was testimonial but that no prior opportunity for Defendant to cross-examine existed since the accuser was unresponsive during both her direct and cross-examination.
Upon appeal, our Supreme Court reversed the Appellate Division and reinstated the conviction. In its Opinion, the Supreme Court noted that the State encountered great difficulty in having the child accuser testify. The child was not responsive in giving details but did state that she had spoken the truth when she had given her interview. However, when she was specifically asked if the Defendant had touched her, she did not respond. On cross-examination, Defense counsel asked a number of “safe questions” which the Supreme Court described as “...questions intended to elicit answers that would reveal only mundane information, rather than information that might damage, or even worse, might implicate her client.” Those questions were limited to biographical information, age, school, family and pets. The child could not give details of what she had told the investigating police officer. As a result of the cross-examination, Counsel was able to highlight the child’s unresponsiveness on direct examination. Significantly, the Supreme Court “approved” of the Defense’s examination technique utilized [3].
The Supreme Court reviewed the video-taped testimony which had involved the use of drawings and dolls and included specific testimony regarding the Defendant’s sexual conduct, which led the Court to conclude that the child possessed sexual knowledge beyond her years. The Court then held that since the child took the stand the Defendant did have the opportunity to cross-examine her. The Court specifically found that pursuant to the decision in Crawford, supra., there was no question that the child’s video-taped interview constituted testimonial hearsay for Sixth Amendment purposes. The Court further recognized that the Confrontation Clause places no constraints at all upon the use of a witness’ prior testimonial statements provided that the witness appears for cross-examination at Trial.”
The Court then criticized the Appellate Division’s conclusion that the accuser’s “complete inability to detail at Trial the real facts of the sexual abuse and her inability to testify to her prior statement meant that Defendant had no opportunity for an adequate and meaningful Cross-examination.” The Court declared the following:
“Although the Defendant had the opportunity to cross-examine Amanda on the core allegations contained in the statement, he declined to do so at Trial. However how unresponsive Amanda may have been on direct examination, as contended by Defendant, he had the opportunity to question her on the inculpatory statements and description she gave in her taped interview. It is irrelevant that the reliability of some out of Court statements cannot be replicated, even if the witness testifies to the same matters at Court.” (Citation omitted).
The Court noted that Defense counsel specifically chose not to cross-examine the child about the core allegations. Under these unique facts, the Supreme Court held that Counsel’s decision to forego critical examination because of the child’s unresponsiveness under direct did not deny the Defendant the right to cross-examine. The Court them opined that had the accuser been directly confronted on cross-examination and then had remained silent or unresponsive. These would have been a basis on which to decide whether her silence or unresponsiveness effectively denied the Defendant his constitutional right of Confrontation. The Court declined to presume that the child would have remained silent or unresponsive under more vigorous cross-examination. It concluded:
“We do not fault Defense counsel for not pursuing cross-examination which may of damaged the Defendant’s case. Having chosen that strategic course, however, Defendant cannot now claim that he was denied the opportunity for cross-examination. Simply, Defendant has not made out the fundament for a constitutional challenge under the Confrontation Clause or either the Sixth Amendment, Article I, Article X of our State’s Constitution.”
Obviously, the Court’s analysis ignores certain cardinal principles held dear by all Criminal Defense Attorneys: Quit While You Are Ahead, and Do Not Ask That Question To Which You Do Not Know (or Fear) The Answer. Here, the Defense Counsel made a well-reasoned decision based upon the inability of the State’s key witness to directly accuse the Defendant in the presence of the Jury. Both the State and the Defendant were faced with a reticent accuser. It can be easily argued that the child witness here is no different than a witness who invokes the Fifth Amendment privilege. Unfortunately, our Supreme Court completely rejected that type of analysis stating that it could not presume that Amanda would have remained silent or unresponsive to questions that Defense Counsel never asked. [4]
A review of this reasoning leads to the inescapable conclusion that, unfortunately, Courts, as well as Juries tend to shift the burden of persuasion in cases involving child victims
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"Failure to Maintain Lane": State v. Regis
In this appeal the Court considered the scope of N.J.S.A. 39:4-88(b), which provides that on a roadway “divided into clearly marked lanes for traffic,” a motor vehicle “shall be driven as nearly as practicable entirely within a single lane and shall not be moved from that lane until the driver has first ascertained that the movement can be made with safety.” The issue is whether the first and second clauses of N.J.S.A. 39:4-88(b) identify two separate, independent offenses or combine to describe a single offense.
HELD: N.J.S.A. 39:4-88(b) describes two separate and independent offenses, one for a driver’s failure to maintain a lane to the extent practicable and the other for changing lanes without ascertaining the safety of the lane change.
1. The Court construes a statute that has been part of New Jersey’s traffic safety laws since 1931. Other than changing “any street or highway” to “roadway” as part of the Legislature’s comprehensive reform of New Jersey’s motor vehicle laws in 1951, the language of the statute at issue has remained virtually intact. The issue before the Court is a question of law and the Appellate Division’s construction of the statute is subject to plenary review. The Court’s objective is to determine the meaning of the statute to the extent possible by looking to the Legislature’s plain language. It is only when a statute’s language is ambiguous that the Court should resort to extrinsic aids. Guided by these principles, the Court holds that while courts have adopted two alternative interpretations of N.J.S.A. 39:4-88(b), the better construction of the statute is that it consists of two separate, independent clauses, each of which addresses a distinct offense. N.J.S.A. 39:4-88(b) contains two separate legal predicates directing the conduct of drivers: “shall be driven” in the first clause and “shall not be moved” in the second. The Legislature’s use of the word “shall” in each clause underscores its intent to impose two separate requirements upon the drivers of motor vehicles. Moreover, as used in the statute, the word “and” confirms the Legislature’s intent that a driver comply with both of the affirmative duties set forth in N.J.S.A. 39:4-88(b). The statute’s two clauses address different circumstances. The first clause imposes a continuous requirement upon the driver: to maintain his or her vehicle in a single lane, by avoiding drifting or swerving into an adjoining lane or the shoulder, unless it is not feasible to do
so. The statute’s second clause addresses a related, but discrete, mandate of the Code. It requires a driver to ascertain the safety of switching lanes before conducting a lane change. The Appellate Division’s limitation of N.J.S.A. 39:4-88(b) to the violation identified in the statute’s second clause would render the first clause inoperative. On the other hand, the Court’s construction of N.J.S.A. 39:4-88(b) gives meaning to all of the statute’s language, and thereby effects the intent of the Legislature. The Court’s construction of N.J.S.A. 39:4-88(b) is thus consonant with established principles of statutory construction. (pp. 6-14)
2. Applying statutes that are identical or very similar to the statute before the Court, courts of other states have reached varying and inconsistent conclusions. The Appellate Division concluded that it was compelled to invoke the rule of lenity “in light of the great divide in cases construing the Uniform Vehicle Code § 11-309(a).” The rule of lenity is an important principle of statutory construction; if a statutory ambiguity cannot be resolved by analysis of the relevant text and the use of extrinsic aids, the rule requires that the ambiguity be resolved in favor of the defendant. The rule of lenity, however, is not invoked simply because there are competing judicial interpretations of the statutory language, in New Jersey or elsewhere. Instead, the rule is applied only if a statute is ambiguous, and that ambiguity is not resolved by a review of “all sources of legislative intent.” That is not the case here. (pp. 14-17)
FINALLY. I cannot tell you how many times I had to argue on appeal the application of this statute (I was right all along, they are distinct offenses!).
By: Matheu D. Nunn, Esq. on December 14, 2011
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Federal Grand Jury Information--Exculpatory Evidence, Part IV
In United States v. Williams, 112 S.Ct. 1735 (1992), the Supreme Court held that the Federal courts' supervisory powers over the grand jury did not include the power to make a rule allowing the dismissal of an otherwise valid indictment where the prosecutor failed to introduce substantial exculpatory evidence to a grand jury. It is the policy of the Department of Justice, however, that when a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence that directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise disclose such evidence to the grand jury before seeking an indictment against such a person. While a failure to follow the Department's policy should not result in dismissal of an indictment, appellate courts may refer violations of the policy to the Office of Professional Responsibility for review.
By: Matheu D. Nunn, Esq. on December 11, 2011
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New Case: State v. Lawless (no, seriously, that’s the caption).
Long story made short—the Defendant, Mr. Lawless (haahah), was driving while intoxicated, crossed the center line of the road, and collided with an oncoming car, killing the driver of the oncoming car and injuring the two passengers in the vehicle (ok, not funny). Defendant pled guilty to aggravated manslaughter, N.J.S.A. 2C:11-4a, and driving while intoxicated, N.J.S.A. 39:4-50.
The trial court judge sentenced the defendant to and relied upon, among other things, aggravating factors two and six. On that basis, the Appellate Division remanded for re-sentencing. The panel concluded that that the harm caused to injured and non-injured family members of a single victim is not a basis to invoke aggravating factor two. The panel also concluded that aggravating factor six was erroneously considered. In that regard, the panel held that driving while under the influence of alcohol is not a "crime" as defined by N.J.S.A. 2C:1-4, or an "offense" as defined by N.J.S.A. 2C:1-14k. Hence, such prior convictions (from Pennsylvania) cannot support consideration of aggravating factor six.
Link: http://www.judiciary.state.nj.us/opinions/a2064-10.pdf
By: Matheu D. Nunn, Esq. on December 7, 2011
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Federal Grand Jury Information--Pleading the Fifth in Advance, Part III
A question frequently faced by Federal prosecutors is how to respond to an assertion by a prospective grand jury witness that if called to testify the witness will refuse to testify on Fifth Amendment grounds. If a "target" of the investigation and his or her attorney state in a writing, signed by both, that the "target" will refuse to testify on Fifth Amendment grounds, the witness ordinarily should be excused from testifying unless the grand jury and the United States Attorney agree to insist on the appearance. In determining the desirability of insisting on the appearance of such a person, consideration should be given to the factors which justified the subpoena in the first place, i.e., the importance of the testimony or other information sought, its unavailability from other sources, and the applicability of the Fifth Amendment privilege to the likely areas of inquiry.
Some argue that unless the prosecutor is prepared to seek an order pursuant to 18 U.S.C. § 6003, the witness should be excused from testifying. However, such a broad rule would be improper and make it too convenient for witnesses to avoid testifying truthfully to their knowledge of relevant facts. Moreover, once compelled to appear, the witness may be willing and able to answer some or all of the grand jury's questions without incriminating himself or herself.
The privilege against self-incrimination can be claimed in any proceeding whether it is civil or criminal, administrative or judicial. The privilege may also be asserted at a deposition taken in a civil case. However, the compelled testimony must expose the claimant to possible criminal prosecution. A witness may not refuse to answer a question because it would place him in danger of physical harm, degrade him, or incriminate a third party.
A person may invoke his 5th Amendment privilege when he has a good faith belief that a direct, truthful answer would either furnish evidence of a crime or lead to the discovery of evidence needed to prosecute him. The witness need not demonstrate that a prosecution based on the incriminating answer would be successful. It is enough if it would "furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime" or a state crime. The claimant must face a real and substantial hazard of self-incrimination, not an imaginary or insubstantial one. This is an easy standard to satisfy in the context of most antitrust grand jury investigations involving conspiracies to restrain trade since conspiracies can be proved by a "course of conduct," and only a single act is needed to connect an individual to a conspiracy once its existence is shown.
A judge, not the witness, makes the final determination of the availability of the 5th Amendment based upon the facts of the case and the "implications of the questions in the setting" in which asked. Just remember, witnesses who refuse to answer questions properly put to them by the grand jury may be held in contempt and either fined or imprisoned until they comply with the directions of the grand jury. The contempt may extend for the life of the grand jury.
By: Matheu D. Nunn, Esq. on December 6, 2011
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Federal Grand Jury Information, Part II
It is the policy of the Department of Justice to advise a grand jury witness of his or her rights if such witness is a "target" or "subject" of a grand jury investigation.
A "target" is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant. An officer or employee of an organization which is a target is not automatically considered a target even if such officer's or employee's conduct contributed to the commission of the crime by the target organization. The same lack of automatic target status holds true for organizations which employ, or employed, an officer or employee who is a target.
A "subject" of an investigation is a person whose conduct is within the scope of the grand jury's investigation.
The Supreme Court declined to decide whether a grand jury witness must be warned of his or her Fifth Amendment privilege against compulsory self-incrimination before the witness's grand jury testimony can be used against the witness. See United States v. Washington, 431 U.S. 181, 186 (1977); United States v. Wong, 431 U.S. 174 (1977); United States v. Mandujano, 425 U.S. 564, 582 n. 7. (1976). In Mandujano the Court took cognizance of the fact that Federal prosecutors customarily warn "targets" of their Fifth Amendment rights before grand jury questioning begins. Similarly, in Washington, the Court pointed to the fact that Fifth Amendment warnings were administered as negating "any possible compulsion to self-incrimination which might otherwise exist" in the grand jury setting.
Notwithstanding the lack of a clear constitutional imperative, it is the policy of the Department that an "Advice of Rights" form be appended to all grand jury subpoenas to be served on any "target" or "subject" of an investigation. In addition, these "warnings" should be given by the prosecutor on the record before the grand jury and the witness should be asked to affirm that the witness understands them.
Although the Court in Washington, supra, held that "targets" of the grand jury's investigation are entitled to no special warnings relative to their status as "potential defendant(s)," the Department of Justice continues its longstanding policy to advise witnesses who are known "targets" of the investigation that their conduct is being investigated for possible violation of Federal criminal law. This supplemental advice of status of the witness as a target should be repeated on the record when the target witness is advised of the matters discussed in the preceding paragraphs.
When a district court insists that the notice of rights not be appended to a grand jury subpoena, the advice of rights may be set forth in a separate letter and mailed to or handed to the witness when the subpoena is served.
Advice of Rights
The following is generally provided to a target:
- The grand jury is conducting an investigation of possible violations of Federal criminal laws involving: (State here the general subject matter of inquiry, e.g., conducting an illegal gambling business in violation of 18 U.S.C. § 1955).
- You may refuse to answer any question if a truthful answer to the question would tend to incriminate you.
- Anything that you do say may be used against you by the grand jury or in a subsequent legal proceeding.
- If you have retained counsel, the grand jury will permit you a reasonable opportunity to step outside the grand jury room to consult with counsel if you so desire.
Sample Target Letter
This letter is supplied to a witness scheduled to appear before the federal Grand Jury in order to provide helpful background information about the Grand Jury. The Grand Jury consists of from sixteen to twenty-three persons from the District of ___. It is their responsibility to inquire into federal crimes which may have been committed in this District.
As a Grand Jury witness you will be asked to testify and answer questions, and to produce records and documents. Only the members of the Grand Jury, attorneys for the United States and a stenographer are permitted in the Grand Jury room while you testify.
We advise you that the Grand Jury is conducting an investigation of possible violations of federal criminal laws involving, but not necessarily limited to *. You are advised that the destruction or alteration of any document required to be produced before the grand jury constitutes serious violation of federal law, including but not limited to Obstruction of Justice.
You are advised that you are a target of the Grand Jury's investigation. You may refuse to answer any question if a truthful answer to the question would tend to incriminate you. Anything that you do or say may be used against you in a subsequent legal proceeding. If you have retained counsel, who represents you personally, the Grand Jury will permit you a reasonable opportunity to step outside the Grand Jury room and confer with counsel if you desire.
Cordially,
_________________
Prosecuting Attorney
By: Matheu D. Nunn, Esq., on December 4, 2011.
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Quick Primer On Federal Grand Juries, Part I
Here are 10 critical things to know about federal grand juries and federal grand jury subpoenas.
1. FEDERAL GRAND JURY BASICS: STRUCTURE AND POWER. Federal grand juries have a maximum of 23 members, 16 of whom must be present to form a quorum. Indictments are returned by a vote of 12 or more members. Federal grand juries typically sit for a term of 18 months and meet at regular intervals. Although federal judges empanel federal grand juries and formally supervise them, these judges do not usually interfere with federal grand jury investigations. The federal prosecutor, or Assistant United States Attorney (“AUSA”), is the primary government official interacting with the federal grand jury. The federal prosecutor leads all grand jury sessions, although he cannot testify or be present during grand jury deliberations. As a practical matter, a federal grand jury will almost always return an indictment presented to it by a prosecutor . This is the basis for Judge Saul Wachler’s famous saying that a prosecutor can get a grand jury to “indict a ham sandwich.” In conducting investigations, a federal grand jury can pretty much do what it wants, other than violating certain testimonial and constitutional privileges. Federal grand jury subpoenas are almost never quashed on grounds that they call for irrelevant information or go beyond the grand jury’s authority. Under the seminal Supreme Court case of United States v. R Enterprises, Inc. , federal grand jury subpoenas are presumed to be reasonable and the burden of showing unreasonableness is on the recipient. A motion to quash a federal grand jury subpoena on relevancy grounds must be denied unless, “there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury’s investigation.” Obviously, testifying or providing documents to such a powerful body entails grave risks. You should never attempt to face these risks without the help of an experienced white collar criminal defense attorney.
2. ROLE OF THE ATTORNEY DURING THE FEDERAL GRAND JURY SESSION. Your lawyer can’t be with you in a federal grand jury room, but he can be right outside the room and you have the right to consult with him after each and every question. In fact, you can spend as much time as you need conferring with your lawyer, as long as you are not attempting to disrupt the federal grand jury process . You can also leave the grand jury room in order to brief your attorney about the questions being asked and your responses. In most jurisdictions, you can take notes of questions asked during the grand jury session. These can later be shared with your attorney.
3. PRE-GRAND JURY INTERVIEWS. You are under no obligation to talk to government agents before the federal grand jury process begins. Some Assistant United States Attorneys trick unrepresented persons into interviewing with federal agents prior to the beginning of the federal grand jury session. The letter accompanying the witness’ subpoena may ask or direct the witness to appear an hour or two early at the grand jury room or the U.S. Attorney’s Office. These pre-grand jury interviews are dangerous and ill-advised and the government has no authority to compel them . Lying to government agents during an interview, like lying to the federal grand jury, is a federal crime. At the grand jury session, however, there will be an official recording and/or transcript of the proceedings, so there will be no dispute about what you say. The pre-grand jury agent interview will not be recorded. Two federal agents will take notes of what you say and it will be their word against yours in the event of a dispute.
4. GRAND JURY SECRECY FOR THE WITNESS. Federal grand jurors, grand jury court reporters and the prosecutors running the federal grand jury are under a strict duty to keep any “matter occurring before the grand jury” a secret. This duty is codified in Rule 6(e) of the Federal Rules of Criminal Procedure. Violations of this rule can result in sanctions or criminal contempt. The rule of federal grand jury secrecy does not apply to federal grand jury witnesses . If you are a federal grand jury witness, you have the right to tell the whole world about your grand jury testimony. But some federal prosecutors attach cover letters to grand jury subpoenas, informing the witness that revealing the contents, or even the existence, of the subpoena “may impede” a criminal investigation. These cover letters then “request” that the witness not disclose the subpoena (and/or the documents requested in the subpoena) and ask the witness to notify the prosecutor if the witness has any “problems” with the non-disclosure. You should by no means put up with this nonsense. When my clients receive a cover letter like this, I usually write a polite response to the prosecutor or the case agent including the following language: “Your cover letter requests non-disclosure of the subpoena (and/or the documents requested in the subpoena) and asks to be notified if there are problems with such non-disclosure. I am reluctant to have my client take on a formal affirmative obligation, regarding either non-disclosure of the subpoena or notification of problems with such non-disclosure, beyond the requirements, if any, found in Fed. R. Crim. P. 6(e) or in some other statutory or court authority you can point me to. Rest assured, however, that my client has absolutely no desire to compromise your investigation or to publicize the existence of either the subpoena or your investigation.”
5. GRAND JURY SECRECY FOR THE GOVERNMENT. As mentioned, Rule 6(e) prohibits the government from revealing “a matter occurring before the grand jury.” This prohibition of course covers the content of federal grand jury testimony. But it goes much further. The government cannot even reveal that you appeared before the federal grand jury or that you have been subpoenaed or scheduled to appear . Many prosecutors and agents get sloppy about this and reveal that a person or company has been subpoenaed. In addition, some federal grand juries have waiting rooms where multiple witnesses are invited to wait until they are called. In these situations, each witness is told, in effect, that the other witnesses waiting with him have been summoned to appear “before the grand jury.” On other occasions, members of the press, who know what day the federal grand jurors meet, have been tipped off to be at the courthouse entrance, so that they can see a grand jury witness enter and draw the obvious conclusion. Your white collar criminal defense attorney should be vigilant in guarding against these abuses and should warn the federal prosecutors handling your case not to violate grand jury secrecy with such maneuvers.
6. SERVICE OF THE FEDERAL GRAND JURY SUBPOENA. Your attorney should arrange with the prosecutor to accept service of the federal grand jury subpoena on your behalf. This spares you the embarrassment of being personally served by FBI agents at your home or in the workplace. What if the agents don’t know or care that you have an attorney, and decide to serve you personally anyway? You should politely accept service, tell the agents that you have an attorney, and decline to answer any substantive questions about the case. Refer all questions to your attorney. What if you don’t yet have an attorney when you are personally served with the grand jury subpoena? Politely accept service and tell the agents that you will decline to answer any substantive questions until you have had the opportunity to obtain an attorney. You are under no obligation to do anything other than accept service of the subpoena . If you say anything about the case to the agent, anything at all, you could be making dangerous admissions that may be used against you at a later time.
7. FEDERAL GRAND JURY SUBPOENAS: TESTIMONY OR DOCUMENTS? INDIVIDUAL OR CORPORATE CUSTODIAN? Federal grand jury subpoenas can be for (a) testimony ( ad testificandum ); (b) documents or objects ( duces tecum ); or (c) both. The face of a federal grand jury subpoena reveals which of these types you have received. You should be subpoenaed either as an individual or as a custodian of records for a business entity. In many instances, individuals have the right to refuse to answer grand jury questions by invoking the Fifth Amendment’s Privilege Against Self-Incrimination. Corporations and other business entities, however, cannot invoke this privilege. But since a corporation operates through human agents, it must designate a custodian of records when subpoenaed by the federal grand jury. Under Supreme Court case law the corporate custodian is only required to answer a narrow category of questions, related to how the subpoenaed documents were gathered . If you are properly subpoenaed as a business custodian, it is very important that you limit your answers to this narrow category of questions. Prosecutors love to get corporate custodians into the grand jury room and ask extra questions. These questions might seem innocuous, but they are often very dangerous. You need to have your white collar criminal lawyer with you for consultation, right outside of the grand jury room, to insure that you are not tricked into answering one question too many. Some federal prosecutors have recently started the practice of issuing one subpoena to a person in that person’s individual capacity and his corporate custodial capacity. This tactic is dangerous, confusing, and, in my view, unauthorized. It is tantamount to issuing one subpoena to two persons or companies. In such situations, your attorney should insist on two separate subpoenas—one for you as an individual and one to the company’s custodian of records.
8. PRIVILEGE AGAINST SELF-INCRIMINATION. As mentioned above, if you are subpoenaed for testimony in your individual capacity, you may be able to avoid answering substantive questions by invoking the Fifth Amendment’s Privilege Against Self-Incrimination. The right to invoke this privilege is much broader than most witnesses and attorneys realize. If a truthful answer to a grand jury question would even tend to incriminate you, you can invoke the privilege and refuse to answer . How can an answer tend to incriminate you? If it furnishes a link in the chain that might lead to your conviction. Can a person who is totally innocent of wrongdoing invoke the privilege? Absolutely! The Supreme Court has ruled that the privilege protects the innocent as well as the guilty . Why would an innocent person want to invoke the privilege? To keep from being ensnared by a mistaken, incompetent, or unscrupulous prosecutor. Take the following example. The federal grand jury is investigating a corporation for accounting fraud. You work in the corporation’s accounting department. The prosecutor believes that any accounting department employee who reviewed Document X and later booked entries related to Document X is guilty of fraud. You booked entries related to Document X. You also briefly reviewed Document X before you booked the entries, but nobody is aware of this and no record establishes that you reviewed Document X. Even though you don’t believe you defrauded or intended to defraud anyone, if you testify at the grand jury and truthfully admit that you reviewed Document X, you will tend to incriminate yourself, because you will furnish a link in the chain that the prosecutor may use to indict and convict you. You are therefore entitled to invoke the privilege against self-incrimination and refuse to answer questions about your conduct.
9. REVIEWING YOUR OWN FEDERAL GRAND JURY TESTIMONY. Some federal prosecutors like to call witnesses back to the grand jury to testify on multiple occasions. This is dangerous, because it can cause you to inadvertently give inconsistent testimony under oath. Under §1623(c) of the federal criminal code, the government can prosecute you for testifying to two irreconcilably contradictory statements under oath, and the government does not even have to prove that either of the statements in question was false. When you are called back to the federal grand jury to testify for a second time, your attorney should insist on your right to review ahead of time the official transcript of your first session . In this way, you can refresh your recollection as to your earlier testimony, correct any mistakes, and prepare yourself for the upcoming session. The United States Court of Appeals for the District of Columbia Circuit recently ruled that federal grand jury witnesses, even if they have not been called back to testify for a second time, have an inherent right to review a transcript of their earlier testimony.
10. If you have the money, your attorney can often conduct what is known as a shadow grand jury. Friendly witnesses will sometimes inform you if they have been subpoenaed to the federal grand jury and you and your defense team can often figure out who else the government may call . Grand jury witnesses are then interviewed, before or after they testify, giving you valuable information on where the investigation is heading. Of course, federal grand jury witnesses are under no obligation to cooperate with your defense team, and the use of shadow grand juries often infuriates prosecutors. You should proceed with great caution and make sure that all interviews are carefully documented so that your defense team is not accused of witness tampering or obstructing justice. And it should go without saying that your attorney and his staff should conduct and arrange all interviews—not you.
By: Matheu D. Nunn, Esq. (original article by Solomon L. Wisenberg) on December 3, 2011.
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The Big Court (N.J. Supremes) Reverse Split Appellate Division.
As if you needed more proof that Justice Albin is both exceptionally intelligent, and often times practical, His Honor started out today's decision in State v. Yough, an appeal from the Appellate Division's reversal of a trial court's denial of the Defendant's mistrial motion, by stating "Trials are not perfectly orchestrated productions. The testimony of witnesses may not always be predictable, particularly in criminal cases where depositions are not a typical tool of discovery."
By way of factual background, at the 2007 trial, the victim testified during his direct examination that he was certain Defendant was one of his robbers/ attackers, and stated that he had seen Defendant in Paterson many times--ten or fifteen. On cross-examination, Defense counsel highlighted the inconsistency between the victim's direct testimony and the statement he had given the detective two years earlier in which he stated that he had observed Defendant “two or three, maybe more” times before the robbery. The victim, whose native language is Spanish, responded that he had seen Defendant “many times on the street. And he come and he point at me like this and talk to another people like this, (makes growling noise) like this.” In fractured sentences, the victim mentioned that he had seen Defendant jogging, had seen him “dressed very nice,” and injected “when he choked me.” While the victim made these fragmented statements, Defense counsel and the judge were talking over him. Defense counsel asked the judge for the opportunity to be heard, and the judge responded affirmatively. After the jury was dismissed, Defense counsel expressed concern that the victim was going to testify that he saw the Defendant after the robbery, and suggested a discovery violation by the State for failing to advise him of the encounters. In reality, the victim never specifically testified at the trial that he saw the Defendant after the robbery.
Justice Albin concluded that the victim's trial testimony--perhaps mischaracterized by a divided Appellate Division as implicating
post-crime "bad acts evidence"--could not have reasonably inferred that the victim had an encounter with or was threatened by defendant after the robbery. That point--that a post-robbery encounter occurred-- was not argued, nor intimated by the State, yet led to cross-examination fodder for defense counsel, because the jury did hear that discrepancies existed between what the victim told the police at the time of the robbery (that he had seen the Defendant a few times) and the victim's trial testimony (that he had seen the Defendant as many as ten to fifteen times). The Court went on to note that Defendant also received the benefit of a favorable jury charge that the jury could consider the victim's testimony that he had seen the perpetrator before the robbery occurred. The Court further underscored that if Defense counsel believed that the jury had been exposed to post-robbery, other-crimes evidence (threatening encounters with Defendant after the robbery) in violation of evidence rules, he could have asked for a curative or limiting instruction--he did not.
Link: http://www.judiciary.state.nj.us/opinions/supreme/A-67-10.pdf
By: Matheu D. Nunn, Esq. on December 1, 2011
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The BIG, BIG Court (U.S. Supremes) To Decide GPS Case
A decision in the case of United States v. Jones will likely be made by the end of June 2012 when the justices usually recess for the summer.
The case began in 2005 when federal agents attached a GPS device to the Jeep of Antoine Jones without a warrant. They used the evidence of Jones's travels over four weeks, including to a stash house in Fort Washington, Md., to help win a conviction for conspiracy to distribute cocaine. Last year, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit vacated Jones's conviction.
During oral argument in early November 2011 the Justice Department contended its surveillance was valid under United States v. Knotts, a 1983 Supreme Court decision that declared the use of a beeper to track a suspect driving to a drug lab was not a search under the Fourth Amendment. Jones's lawyer, Stephen Leckar, countered that GPS constitutes a "robotic" and pervasive intrusion on people's lives that greatly threatens personal privacy. "GPS in your car, without a warrant," he said, "is like (being) unable to get rid of an uninvited stranger."
This is one to follow. It has long been held that an individual has no legitimate expectation of privacy of his or her movements in public. This logic formed the basis for Judge Skillman's recent decision in State v. Earls. If the Court chooses, it can seriously erode this long-held principle. On the other hand, the Court may fashion a narrow decision in which 24-hour GOS tracking is prohibited.
In any event, get down on the ground and check your wheel wells and undercarriage...
By: Matheu D. Nunn, Esq. on November 30, 2011
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"Michael Jackson Killer Gets 4 Years"
Conrad Murray, the doctor convicted of killing Michael Jackson, has been sentenced to the maximum term of four years behind bars. Considering that the jails are so overcrowded (inmates' arms can be seen sticking through the barred windows--not really). He'll probably serve less than half of that sentence.
I guess he won't be contributing to WebMD anytime soon.
By: Matheu D. Nunn, Esq. on November 30, 2011
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"Default" and "Default Judgment" are NOT the same...
No, seriously, they aren't the same.
Under Rule 4:43-1, "If a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or court order, or if the answer has been stricken with prejudice, the clerk shall enter a default on the docket as to such party."
In other words, the opposing party didn't do anything...file anything...respond...sneeze....anything.
Wait, there is more, a lot more: "the moving party shall make a formal written request of the clerk for the entry of the default, supported by the attorney's affidavit. The affidavit shall recite the service of the process and copy of complaint on the defendant or defendants (if more than one, naming them), the date of service as appears from the return of the process, and that the time within which the defendant or defendants may answer or otherwise move as to the complaint, counterclaim, cross-claim, or third-party complaint has expired and has not been extended. The request and affidavit for entry of default shall be filed together within 6 months of the actual default, and the default shall not be entered thereafter except on notice of motion filed and served in accordance with R. 1:6 on the party in default. If defendant was originally served with process either personally or by certified or ordinary mail, the attorney obtaining the entry of the default shall send a copy thereof to the defaulting defendant by ordinary mail addressed to the same address at which defendant was served with process.
Think of "Default" as Step One in the process. Here is Step Two:
Under Rule 4:43-2, "After a default has been entered . . . a final judgment may be entered in the action as follows:
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(a) By the Clerk. If the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit setting forth a particular statement of the items of the claim, their amounts and dates, a calculation in figures of the amount of interest, the payments or credits, if any, and the net amount due, shall sign and enter judgment for the net amount and costs against such defendant, if not a minor or mentally incapacitated person. If prejudgment interest is demanded in the complaint the clerk shall add that interest to the amount due provided the affidavit of proof states the date of defendant's breach. If the judgment is based on a document of obligation that provides a rate of interest, prejudgment interest shall be calculated in accordance therewith; otherwise it shall be calculated in accordance with Rule 4:42-11(a). If the claim is founded upon a note, check or bill of exchange or is evidenced by entries in the plaintiff's book of account, or other records, a copy thereof shall be attached to the affidavit. If the application for entry of default judgment is made after the expiration of six months following the entry of default, notice thereof shall be given to the defendant by ordinary mail, and proof of service thereof shall accompany the application.
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(b) By the Court. By the Court. In all other cases, except Family Part matters recognized by Part V of these Rules, the party entitled to a judgment by default shall apply to the court therefor by notice of motion pursuant to R. 1:6, served on all parties to the action, including the defaulting defendant or the representative who appeared for the defaulting defendant. No judgment by default shall be entered against a minor or mentally incapacitated person unless that person is represented in the action by a guardian or guardian ad litem who has appeared therein. If, to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any allegation by evidence or to make an investigation of any other matter, the court, on its own motion or at the request of a party on notice to the defaulting defendant or defendant's representative, may conduct such proof hearings with or without a jury or take such proceedings as it deems appropriate. The notice of proof hearing shall be by ordinary mail addressed to the same address at which process was served unless the party entitled to judgment has actual knowledge of a different current address for the defaulting defendant. Proof of service of the notice of motion and notice of any proof hearing shall certify that the plaintiff has no actual knowledge that the defaulting defendant's address has changed after service of original process or, if the plaintiff has such knowledge, the proof shall certify the underlying facts. In tort actions involving multiple defendants whose percentage of liability is subject to comparison and actions in which fewer than all defendants have defaulted, default judgment of liability may be entered against the defaulting defendants but such questions as defendants' respective percentages of liability and total damages due plaintiff shall be reserved for trial or other final disposition of the action. If application is made for the entry of judgment by default in deficiency suits or claims based directly or indirectly upon the sale of a chattel which has been repossessed, the plaintiff shall prove before the court the description of the property, the amount realized at the sale or credited to the defendant and the costs of the sale. In actions for possession of land, however, the court need not require proof of title by the plaintiff. If application is made for the entry of judgment by default in negligence actions involving property damage only, proof shall be made as provided by R. 6:6-3(c).
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(c) Conformance of Judgment With Pleading; Service of Judgment. Whether entered by the clerk or the court, the final judgment shall not be different in kind nor exceed the amount demanded in the pleading, except that in continuing causes, installments coming due after the filing of the pleading but before entry of judgment may be added to the amount of the demand stated in the pleading. Within seven days after receipt of the executed judgment from the court, the proponent of the judgment shall serve a copy thereof on the defaulting defendant as required by R. 1:5-2 except that service may be made by ordinary mail alone.
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(d) Failure to Apply for Judgment Within Four Months. If a party entitled to a judgment by default fails to apply therefor within four months after the entry of the default, the court shall issue a written notice in accordance with R. 1:13-7(a).
That's not all. There is a potential Step Three...
Rule 4:43-3 provides that for good cause shown an entry of default or a judgment by default may be set aside by the court in accordance with Rule 4:50. The matter rests in the discretion of the court. A defendant, upon moving to set aside a default judgment, must state the existence of a meritorious defense but also is required to set out the nature of the defense with particularity. Note: Fraud in procuring the entry of a default judgment will justify opening a default judgment, as will any of the grounds set forth in Rule 4:50.3. Moreover, a court should view opening of default judgments with great liberality, and should tolerate every reasonable ground for indulgence to end that just result is reached. The decision whether to open default judgment is left to sound discretion of trial court, and will not be disturbed absent an abuse of discretion. A defendant seeking to reopen default judgment because of excusable neglect must show that neglect to answer was excusable under circumstances and that he has meritorious defense. R. 4:50-1(a). Nowosleska v. Steele, 400 N.J. Super. 297 (App. Div. 2008). An example of circumstances warranting the setting aside of a default judgment occurred in Rosenberg v. Bunce, 214 N.J. Super. 300 (App. Div. 1986), where the clerk failed to send the defendant a copy of a previous order of default. So, too, would inadequate service of process by a party. O'Connor v. Altus, 67 N.J. 106 (1975).
Ok, so, you got it? In the words of the theme song to Ed O'Neill's crowning achievement, default and default judgment, "you can't have one without the other..."
By: Matheu D. Nunn, Esq. on November 29, 2011
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So, what are the warrant exceptions in New Jersey?
As a starting point, both the United States Constitution and the New Jersey Constitution guarantee the right of the people to be free from unreasonable searches or seizures. See U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. Indeed, generally, a warrant is required to sustain the reasonableness of a search or the propriety of a seizure. These constitutional rights are tempered by the exceptions set forth by both the United States Supreme Court and New Jersey Supreme Court. See, e.g., State v. Cooke, 163 N.J. 657, 664 (2000).
But, what happens if the police did not utilize a search warrant? Well, where any search or seizure is challenged by a defendant through a motion to suppress at the trial court, the burden is on the State to establish the constitutionality of the search. Side note: if the State prevails at the trial court level, on appeal, the record is reviewed by the Appellate Division to determine whether: (1) the findings are supported by sufficient credible evidence and (2) the legal conclusions are valid. State v. Yohnnson, 204 N.J. 43, 62 (2010).
Back to the exceptions to the warrant requirement (keep in mind, these are, for the most part, judge-made doctrines and, thus, subject to change, narrowing, or elimination). Without further ado:
- Plain view;
- Plain Smell;
- Search Incident to Arrest;
- Exigent Circumstances (and the automobile exception);
- Inventory Search;
- Consent Search;
- Community Caretaking;
- Protective Search or Sweep;
- Regulatory or Administrative Search.
For Plain View, read State v. Johnson, 171 N.J. 192, 206–07 (2002). Under this exception, a warrant is not required to perform a search when a police officer is (1) lawfully present in the viewing area, (2) the officer inadvertently discovers the evidence in plain view, and (3) it is “immediately apparent” to the police officer that the “items in plain view were evidence of a crime, contraband, or otherwise subject to seizure.” Ibid.
For a Search Incident to Arrest, read State v. Hill, 115 N.J. 169, 173 (1989) (citing Chimel v. California, 395 U.S. 752, 762–63, 89 S.Ct. 2034, 2040, 23 L. Ed.2d 685, 694 (1969)). Essentially, this exception provides that when a suspect is lawfully placed under arrest, a law enforcement officer may conduct a search of the person of the suspect as well as the area within the suspect's immediate control. United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 471, 38 L.Ed.2d 427, 434 (1973). The foundation of this exception is officer safety and the risk of destruction of evidence within the immediate control of a suspect. That said, the search must be contemporaneous to the arrest. State v. Bradley, 291 N.J. Super. 501 (App. Div. 1996).
For Consent Searches, read State v. Carty, 170 N.J. 632 (2002). As a starting point it should be noted that consent searches under the New Jersey Constitution are afforded a higher level of scrutiny than their federal counterpart. The burden is on the State to show that the individual giving consent knew that he or she “had a choice in the matter.” Moreover, “in order for a consent to search a motor vehicle and its occupants to be valid, law enforcement personnel must have a reasonable and articulable suspicion of criminal wrongdoing prior to seeking consent to search a lawfully stopped motor vehicle.” In other words, in the motor vehicle context, law enforcement personnel cannot ask every individual they stop for consent to search the vehicle. That said, whether in a car or in the home, only a person with "authority" to consent to the search may do so. See, e.g., State v. Earls, 420 N.J. Super. 583 (App. Div. 2011).
For Community Caretaking issues, read State v. Diloreto, 180 N.J. 264, 275 (2004) (quoting State v. Cassidy, 179 N.J. 150, 161 n. 4 (2004)). The “community caretaking” doctrine applies when the police are engaged in functions that are totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. State v. Adubato, 420 N.J. Super. 167 (App. Div. 2011). As noted in Diloreto, community caretaking is based on the notion that police serve to ensure the safety and welfare of the citizenry at large.
For an Inventory Search, read State v. Mangold, 82 N.J. 575, 587 (1980) and Colorado v. Bertine, 479 U.S. 367, 372–74, 107 S.Ct. 738, 742, 93 L.Ed.2d 739, 747 (1987). In New Jersey, if a vehicle is lawfully impounded and its owner or permissive user is present, that person must be given the option of either consenting to the inventory or making his own arrangements for the safekeeping of the property contained in the vehicle. Absent consent or alternative security provisions, an inventory may be not undertaken. In such cases the vehicle owner or user will be presumed to have assumed the risk for any claims of property loss or theft arising from the impoundment.
For an Administrative Search, read State v. Hewitt, 400 N.J.Super. (App. Div. 2008). This exception applies only if three criteria are satisfied: First, there must be a substantial government interest that informs the regulatory scheme pursuant to which the inspection is made; second, the warrantless inspections must be necessary to further the regulatory scheme; and third the statute's inspection program, in terms of the certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant. See also New York v. Burger, 482 U.S. 691, 702-03, 107 S.Ct. 2636, 2643-44, 96 L.Ed.2d 601, 613-14 (1987); N.J. Transit PBA Local 304 v. N.J. Transit Corp., 151 N.J. 531, 545-46 (1997); State v. Turcotte, 239 N.J. Super. 285, 291-97 (App. Div. 1990).
By: Matheu D. Nunn, Esq. on November 27, 2011 (updated December 3, 2011).
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Post-"Henderson" Identification Procedures in New Jersey--What are System and Estimator Variables Anyway?
In State v. Henderson, the New Jersey Supreme Court considered the legal standard for analyzing the reliability of eyewitness identification. The case involved a witness who identified the defendant as the person who held him at gunpoint in a hallway while a man in another room was shot.The court ruled it must revise the legal standard for assessing eyewitness identification evidence because it (1) does not offer an adequate measure of reliability, (2) does not sufficiently deter inappropriate police conduct, and (3) relies too heavily on the jury's ability to evaluate identification evidence.
The new standard (1) must allow the court to explore and weigh all relevant system and estimator variables at a pretrial hearing when there is evidence of suggestiveness, (2) cannot be heavily weighted by factors that can be corrupted by suggestiveness, (3) must meaningfully promote deterrence, (4) must help jurors understand and evaluate the effects that various factors have on memory, and (5) must be flexible enough to guarantee fair trials to defendants and protect the state's interest in presenting critical evidence at trial.
Under the new test, the Court placed the initial burden of showing some evidence of suggestiveness that could lead to misidentification on the defendant. This evidence must generally be tied to a system variable. The state must then offer proof that the identification is reliable, accounting for system and estimator variables. The court can end the hearing any time it finds the allegation of suggestiveness is groundless. The court can suppress the identification evidence if, after weighing the evidence and looking at the totality of the circumstances, the defendant shows a very substantial likelihood of irreparable misidentification. If the evidence is admitted, the court must provide an appropriate, tailored jury instruction.
In evaluating evidence of suggestiveness to trigger a hearing, courts must consider the following non-exhaustive list of system variables.
1. Blind administration: Was a double-blind lineup used and if doing so was impractical, was a method used so the administrator did not know where the suspect appeared?
2. Pre-identification instructions: Did the administrator provide neutral pre-identification instructions that the suspect may not be in the lineup and the witness should not feel compelled to make an identification?
3. Lineup construction: Did the lineup contain only one suspect and at least five fillers? Did the suspect stand out from others?
4. Feedback: Did the witness receive any information or feedback about the suspect or crime before, during, or after the procedure?
5. Recording confidence: Did the administrator record the witness' statement of confidence immediately after the identification and before the possibility of confirmatory feedback?
6. Multiple viewings: Did the witness view the suspect more than once as part of multiple identification procedures? Did police use the same fillers more than once?
7. Showups: Did the police perform a showup more than two hours after an event? Did the police warn the witness that the suspect may not be the perpetrator and that the witness should not feel compelled to make an identification?
8. Private actors: Did law enforcement elicit from the eyewitness whether he or she had spoken with anyone about the identification and, if so, what was discussed?
9. Other identifications made: Did the eyewitness initially make no choice or choose a different suspect or filler?
If proof of suggestiveness remains, courts must consider the above system variables and the following non-exhaustive list of estimator variables to evaluate the identification's overall reliability.
1. Stress: Did the event involve a high level of stress?
2. Weapon focus: Was a visible weapon used during a crime of short duration?
3. Duration: How much time did the witness have to observe the event?
4. Distance and lighting: How close were the witness and perpetrator? What were the lighting conditions at the time?
5. Witness characteristics: Was the witness under the influence of alcohol or drugs? Was age a relevant factor under the circumstances of the case?
6. Perpetrator characteristics: Was the culprit wearing a disguise? Did the suspect have different facial features at the time of the identification?
7. Memory decay: How much time elapsed between the crime and the identification?
8. Race-bias: Does the case involve a cross-racial identification?
9. Opportunity to view the criminal at the time of the crime.
10. Degree of attention.
11. Accuracy of prior description of the criminal.
12. Level of certainty at the confrontation: Did the witness express high confidence at the time of the identification before receiving any feedback or other information?
13. The time between the crime and the confrontation.
The court stated that the factors are not frozen in time and are not intended to prevent police from improving practices or limit trial courts from reviewing scientific research.
Henderson is a must-read for new jersey criminal attorneys, new jersey prosecutors, new jersey appellate attorneys, (heck just new jersey attorneys as a whole) and anyone else who has an interest in just how unreliable eyewitness identifications can be.
By: Matheu D. Nunn, Esq. on November 26, 2011
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You "Have to" Purchase Healthcare, don't you?
The United States Supreme Court decided two weeks ago that it will review President Obama’s 2010 Affordable Healthcare Act. Although there are many aspects of the law (and far-reaching effects), one of the main questions the Court will answer is whether the "individual mandate" exceeds Congress's authority. To answer this question, the Court is likely to look to--wait for it all of you lawyers out there--the “necessary and proper” clause and the commerce clause.
Remember these:
Necessary and proper clause: Congress has the power to “make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”
Commerce clause: Congress has the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”
If your first-year memories aren't jogged yet, how about these: McCulloch v. Maryland (1819), Wickard v. Filburn (1942) United States v. Lopez (1995), United States v. Morrison (2000), Gonzales v. Raich (2005).In its most recent decision, Gonzalez v. Raich, the Court reversed a recent trend--limiting Congress's authority under the Commerce Clause--holding that the commerce clause gives Congress the right to criminalize the production and use of homegrown marijuana, even when states have approved its cultivation and use. The Court said an inability to regulate such marijuana would undermine the federal Controlled Substances Act and relied on Wickard in its decision. (Kennedy, Ginsburg and Breyer were in the majority; Scalia filed a concurring opinion; Thomas dissented).
So, does the Commerce Clause and/or the Necessary and Proper Clause give Congress the authority to regulate inaction, i.e., an individual's decision remain without healthcare? What about the healthcare-less person who uses emergency medical services, the costs of which are inevitably borne by those individuals who have healthcare? Does it matter if an individual's decision to not purchase healthcare "affects" interstate commerce?
Who knows, but the Big Court will tell us in 2012.
By: Matheu D. Nunn, Esq. on November 26, 2011
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"NO KEMO NO CASE"-Paul Bergrin Jury Hung.
The murder case against Paul Bergrin, whose clients included entertainers as well as gang members, ended in mistrial Wednesday (Nov. 23) after jurors failed for the sixth day to reach a verdict.
This will not end the odyssey for Bergrin as U.S. Attorney Paul Fishman noted: “While it is disappointing the jury was unable to reach a verdict, we are fully prepared for the next trial.”
If you want an interesting read--and a cautionary tale for all attorneys and, well, human beings--read the June 5, 2011 article from the New Yorker: http://nymag.com/news/features/paul-bergrin-2011-6
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New Jersey's Official Misconduct Statute is Both Broad in Definition and Application.
Under New Jersey's Official Misconduct law, N.J.S.A. 2C:30-2, a public servant can be guilty of misconduct in office.
A public servant includes any officer or employee of government including legislators and judges as well as any person participating as a juror, advisor, consultant or otherwise, in performing a government function,; it does not include a witness. The test is whether the person is performing a "government function."
Under New Jersey Official Misconduct law the public servant's action or omission must be coupled "with a purpose to obtain a benefit for himself or another" or a purpose to injure another or deprive another of a benefit.
The required "purpose" element can be of two types. The first theory of culpability arises where a defendant's purpose is to obtain a benefit for him/her or another. The second type of liability exists where a public servant seeks to injure some person or deprive them of a gain or advantage - by being denied or impeded in the exercise of some right or privilege (in other words being vindictive).
To prove its case and to sustain a conviction the State must prove that the public servant's act was unauthorized or committed in an unauthorized manner. The State must also demonstrate that the public servant knew that the act was unauthorized or knew that he/she acted in an unauthorized manner. Note: This law does not extend to purely private wrongdoing by one who happens to be a public servant.
In sum, under New Jersey Official Misconduct law the state must prove the following five elements:
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The defendant was a public servant;
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The defendant acted with purpose to gain a benefit or to injure or deprive another of a benefit;
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The criminal act committed by the defendant related to the public servant's (defendant's) office or position;
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The act must be unauthorized; and
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The defendant knew that the act was unauthorized.
Here is the scary part--Official Misconduct is a crime of the second degree, however, it may be reduced to third degree if the benefit obtained or sought or of which another is deprived is of a value of $200.00 or less.
If the purpose is to injure another it will be a crime of the second degree no matter how slight the injury.And, unlike many other "non-violent" crimes, pursuant to N.J.S.A. 2C:43-6.5, a person convicted of Official Misconduct:
"shall be sentenced to a mandatory minimum term of imprisonment without eligibility for parole as follows: for a crime of the fourth degree, the mandatory minimum term shall be one year; for a crime of the third degree, two years; for a crime of the second degree, five years; and for a crime of the first degree, 10 years; unless the provisions of any other law provide for a higher mandatory minimum term."
In other words, if you are convicted of Official Misconduct, stipulated or "stip" time applies, i.e., parole ineligibility.
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New Law Imposes Criminal "2C" Culpability for, among other things, Driving While Suspended for Drunk Driving.
a. It shall be a crime of the fourth degree to operate a motor vehicle during the period of license suspension in violation of R.S.39:3-40, if the actor's license was suspended or revoked for a first violation of R.S. 39:4-50 [driving while intoxicated] or section 2 of P.L.1981, c. 512 (C.39:4-50.4a) and the actor had previously been convicted of violating R.S.39:3-40 while under suspension for that first offense. A person convicted of an offense under this subsection shall be sentenced by the court to a term of imprisonment.
b. It shall be a crime of the fourth degree to operate a motor vehicle during the period of license suspension in violation of R.S.39:3-40, if the actor's license was suspended or revoked for a second or subsequent violation of R.S.39:4-50 [driving while intoxicated] or section 2 of P.L.1981, c. 512 (C.39:4-50.4a). A person convicted of an offense under this subsection shall be sentenced by the court to a term of imprisonment.
c. Notwithstanding the term of imprisonment provided under N.J.S.2C:43-6 and the provisions of subsection e. of N.J.S.2C:44-1, if a person is convicted of a crime under this section the sentence imposed shall include a fixed minimum sentence of not less than 180 days during which the defendant shall not be eligible for parole.
The new statute is a must-read for all new jersey criminal defense attorneys, new jersey prosecutors, new jersey appellate attorneys, and anyone else who has been found guilty of a dwi.
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Attorney General Tells Law Enforcement Personnel to "Keep Your Notes!"
As of May 27, 2011, Attorney General Paula T. Dow issued a Directive that incorporated the precepts of the New Jersey Supreme Court in State v. W.B.: "[a]ny existing law enforcement policy or practice to destroy contemporaneous notes of a witness interview or of a crime scene observation after the contents of those notes have been incorporated into a final report is hereby rescinded and prohibited as contrary to the law of this State."
http://www.nj.gov/oag/dcj/agguide/directives/dir-2011-2-RetentionTransmittal.pdf
Criminal defense attorneys and prosecutors...take note! (or Notes--bad pun).
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