Wednesday, March 18, 2009

NEW JERSEY IMPOSES A RIGHT TO COUNSEL STIPULATION AUTHORIZING THE USE OF A POLYGRAPH TEST AT TRIAL

The court’s in New Jersey have concluded time-and-time again that polygraph tests cannot be admitted into evidence because they are unreliable. One exception to that well-settled rule is where the participant signs a stipulation that allows the result of a polygraph to be admitted into evidence.

In March 2009, the New Jersey Supreme Court concluded that unless the participant to a lie detector test had the advice of counsel when signing the stipulation to admit the result into evidence, the results of the test were inadmissable. The court based this ruling on its supervisory powers and returned to the underlying frailties of the test, noting that the results of a polygraph test was “a little better than could be obtained from the toss of a coin.” In its analysis, the court also noted that there were 28 states that bar the use of polygraph tests outright with only 18 that allow its use where both parties stipulate to its admissibility.

Thursday, March 5, 2009

POT FIRES

In 2008, the Federal government joined with California law enforcement agents to burn over 2.9 million marijuana plants which were principally located in central and northern California. 143 people were arrested. This was the most successful effort to destroy marijuana plants to date. The estimated street value of the plants was $11.6 billion dollars.

The joint task force claimed that the seizure and destruction of these plants would have been much larger if these regions were not decimated by uncontrollable forest fires that occurred last summer. Notably, a number of home owners were miffed when, during these devastating summer fires, the federal government ignored their desperate predicament and launched a similar operation in the southern part of the state.

Monday, March 2, 2009

THE GOVERNMENT’S USE OF EXPERT WITNESSES IN NEW JERSEY DRUG CASES

For approximately twenty years, New Jersey’s Supreme Court has authorized the use of expert witnesses to provide opinion testimony as to whether an accused possessed a controlled dangerous substance (CDS) for personal consumption or for sale to others. This type of opinion evidence usually followed other testimony where the government will elicit information from the expert relating to the relevancy of, among other things, the weight and quality of the substance, the existence of paraphernalia, such as scales, dilutants and packaging at the arrest site, the location of the substance and the conduct of the accused.

While the Court determined that such a rule was necessary to educate jurors about the shadowy and arcane world of drug trafficking, it also recognized that the nature of this opinion evidence could cause jurors to forfeit their sacred fact-finding responsibilities to the testimony of a police officer expert. As a result, the Court instructed trial judges to function as a “gate-keepers” in this sensitive area to determine if there is a reasonable need for an expert in each case and, if so, the proper scope of that testimony.

Last month, the Supreme Court rendered a decision that seemed to curtail the use of expert testimony in a drug case involving a motor vehicle stop, where a significant quantity of heroin and a smaller quantity of marijuana were found in the front seat area of a motor vehicle, occupied by a driver and two passengers, one of whom was in the back seat. During the trial, the government’s expert witness was allowed to testify that all three occupants had constructive possession of the drugs with the intent to distribute them. In the criminal justice system, an accused can possess an object without actually having it in his/her hand or on his/her person. One can constructively possess an item if it is shown that the person knows of the identity of the item, where it is located and the intention and capacity to control it. Obviously, the question of whether each of the occupants had construction possession of the drugs was a material issue in the case. With the help of the expert’s testimony on the issue, all three defendants were convicted.

In an opinion, with one dissent, the Court concluded that the expert’s opinion mimicked the statute to such a close degree on such an important issue that the conviction had to be reversed. Equally important, the Court ordered the reversal, even though some of the accuseds' counsel failed to object to the testimony when it was offered and the trial court ultimately sought to cure the problem with an ineffective limiting instruction to the jury both of which are trial events that make the reversal of a conviction extremely difficult.