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.

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.

New Jersey's Graves Act: Well Needed but Overreaching

The recent arrest of Plaxico Burress has reawakened the criminal justice system's preoccupation with weapon offenses. Over 17 years ago, New Jersey enacted the so-called Graves Act named after a crusading Mayor and State Senator from Paterson, New Jersey whose name was Frank X. Graves.

By the terms of the "Graves Act", if you are convicted of possession of a firearm with the intent to use it against another, or use or possess a firearm while committing, attempting to commit, or fleeing from certain enumerated crimes, the sentencing judge must impose a minimum term of imprisonment without parole eligibility for a period of three year or between one-half and one-third of the sentence imposed, which ever is greater.

While the need to secure our neighborhoods from the illicit use of weapons is a necessary component of our social order, like many of the other products of the country's "war-on-crime" the Graves Act is somewhat overreaching in its application in at least a few areas.

Specifically, the legislation is applicable to "BB-guns" and as a result, a teenager who recklessly decides to shoot his buddy in the butt as a joke can be prosecuted under this statute. In addition, it does not matter that the firearm was not loaded or even inoperable for criminal liability to attach. Finally, while our constitution requires a jury to determine an accused's guilt beyond a reasonable doubt, the Graves Act allows a judge to determine certain limited issues where the standard of proof is a mere "preponderance of the evidence" which is the proof required in civil cases. While the courts have begun to make some inroads into this fact-finding quirk, the other conceptual excesses in the Graves Act still maintain their vitality.