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.
Wednesday, March 18, 2009
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.
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.
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.
Wednesday, February 25, 2009
SEQUESTERING EXPERT WITNESSES IN DRUNK DRIVING TRIALS
Most experienced trial lawyers will always request the trial court to sequester the adversary’s witnesses. Literally, the word “sequester” means to place apart or segregate. The purpose of this type of trial application is to prevent a potential witness who is present in the courtroom from obtaining a “schooling” from the testimony of a prior witness. Absent some special circumstances, applications of this nature are generally granted. One of those exceptions relates to a litigant’s expert and that is so because an expert has the ability to assist the trial lawyer to develop and analyze facts presented by the adverse party, so as to allow an effective cross-examination.
Last week, the Appellate Division reversed a drunk driving (DWI/DUI) case, where a municipal court judge sequestered a defendant’s expert. The basis of the municipal court judge’s ruling was that the defendant’s lawyer could take notes of the government’s expert and then collaborate with the defendant's expert before cross-examination began. Although a Law Division Judge endorsed that rationale on an appeal from the defendant’s municipal court conviction the Appellate Division disagreed and reversed the conviction.
Last week, the Appellate Division reversed a drunk driving (DWI/DUI) case, where a municipal court judge sequestered a defendant’s expert. The basis of the municipal court judge’s ruling was that the defendant’s lawyer could take notes of the government’s expert and then collaborate with the defendant's expert before cross-examination began. Although a Law Division Judge endorsed that rationale on an appeal from the defendant’s municipal court conviction the Appellate Division disagreed and reversed the conviction.
Monday, February 23, 2009
THE TWIN PROBLEM WITH DNA TESTING
This January thieves made off with over a million dollars of jewelry from a store in Berlin, Germany which happens to be one of the most luxurious department stores in the world. While the miscreants were able to avoid triggering the store’s sophisticated security system, they left behind a critical piece of evidence - a glove. The glove contained DNA material. Recently, the German authorities arrested a suspect with matching DNA characteristics.
There is a rub, however, the suspect has a twin brother. While the most advanced DNA test can distinguish DNA patterns between identical twins, Germany’s rules of criminal procedure will not allow the more advanced test result.
This scientific problem can create a whipsaw defense, where the suspect can claim that his brother was the real culprit. In short, there is a 50/50 chance that the cops got the wrong guy. Is that enough to convict? I doubt it.
There is a rub, however, the suspect has a twin brother. While the most advanced DNA test can distinguish DNA patterns between identical twins, Germany’s rules of criminal procedure will not allow the more advanced test result.
This scientific problem can create a whipsaw defense, where the suspect can claim that his brother was the real culprit. In short, there is a 50/50 chance that the cops got the wrong guy. Is that enough to convict? I doubt it.
Friday, February 20, 2009
RETRACTING A PLEA IN NEW JERSEY
If you think you can change your mind after you have pled guilty to a crime, think twice, and that is especially so, if you have been sentenced because in the words of a recent New Jersey Supreme Court case, you have a “formidable barrier.”
For years, a defendant’s decision to retract a guilty plea has caused confusion and sometimes chaos in the courtroom. This new decision seems to fix a bright line to a just result for this knotting problem. The new analysis is based on four separate factors. They are:
• the existence of a “colorable” claim of innocence.
• the reason for the defendant’s request to retract the plea.
• whether the plea was the result of a plea agreement.
• whether the retraction will result in an unfair advantage to the defendant or an unfair disadvantage to the accused.
The list is not magical, however. A failure of one element does not necessarily spell defeat. All factors must be considered and delicately balanced. As always, the decision will ultimately repose in the discretion of the trial court which is another interesting issue that we can get to on another occasion.
For years, a defendant’s decision to retract a guilty plea has caused confusion and sometimes chaos in the courtroom. This new decision seems to fix a bright line to a just result for this knotting problem. The new analysis is based on four separate factors. They are:
• the existence of a “colorable” claim of innocence.
• the reason for the defendant’s request to retract the plea.
• whether the plea was the result of a plea agreement.
• whether the retraction will result in an unfair advantage to the defendant or an unfair disadvantage to the accused.
The list is not magical, however. A failure of one element does not necessarily spell defeat. All factors must be considered and delicately balanced. As always, the decision will ultimately repose in the discretion of the trial court which is another interesting issue that we can get to on another occasion.
Thursday, February 19, 2009
THE DUE PROCESS CLAUSE AND NEW JERSEY’S MOTOR VEHICLE COMMISSION
In the state of New Jersey, the Motor Vehicle Commission (Commission) has the discretionary authority to immediately suspend the driver’s license of a person who has caused a fatality while driving where certain traffic offenses are involved. Those offenses include: (1) speeding in excess of 20 m.p.h. above the posted limit; (2) drunk driving; (3) reckless driving; and, (4) leaving the scene of an accident. A new bill that is working its way through the legislature would expand those violations to circumstances where death results from an accident where the driver has a special learner’s permit, or a provisional driver’s license that limits the hours of operation or the number of passengers in the driver’s vehicle, as well as a violation of a condition placed on the driver’s license. This new bill would also make it mandatory for the Commission to suspend a driver’s license under these special circumstances. Notably, the Commission can suspend a driver’s license without notice to the licensed driver. There is a process in the statute, however, where a driver whose license has been suspended under this new statute can request a plenary hearing to upset the decision of the Commission.
This procedure seriously offends traditional notions of Due Process which requires, at the very least, notice and an opportunity to be heard. Hopefully, someone will test the validity of this bill if it ever becomes law.
This procedure seriously offends traditional notions of Due Process which requires, at the very least, notice and an opportunity to be heard. Hopefully, someone will test the validity of this bill if it ever becomes law.
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