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.

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 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.

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.

ANOTHER PITFALL OF SOCIAL NETWORKING

Here is another thought associated with the problems that may attend social networking.

Just recently, I read an article written in the New Jersey Law Journal, where the author suggested that the information posted on these sites can be used to obtain insight into a potential juror or witness and even a potential business associate.

The author beleives, as I do, that people who participate in social networking on the internet tend to disclose more of themselves then in a person-to-person conversation and while some services do not allow full access to the subscriber's profile information unless you are a "friend," others are not so restrictive.

Again, be very careful of the information you post on a social network site.

SOCIAL NETWORKING AND THE CRIMINAL JUSTICE SYSTEM

From time to time I have explained on this site that the government will use information posted on social network sites like Facebook and MySpace to obtain information to assist in investigating criminal conduct or in prosecuting a criminal case.

Recently, I read about a controversy brooding in Italy, where Sicilian authorities began investigating Facebook discussion groups glorifying high-ranking Mafia figures and offering enlistment into the criminal organization. Italy authorities are interested in identifying these pro-mafia internet groups to determine if they are simply goofing adolescents or criminals seeking to send coded messages to one another. Unfortunately, for the government, these groups seem to disappear from the internet at the most opportune moments.

A spokesperson for Facebook said that while the company could not voluntarily disclose the identity of the members subject of the Italian government’s investigation, it may be required to disclose that information, if subpoenaed or ordered by a court. Ostensibly, the identity of members of these pro-mafia groups are a mere signature away from disclosure.