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.
Showing posts with label lawyer. Show all posts
Showing posts with label lawyer. Show all posts
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.
Monday, February 9, 2009
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.
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.
Thursday, January 15, 2009
The Pitfalls of Social Networking in Criminal Investigations and Prosecutions
For quite sometime, we have been advising our clients who are subject of criminal investigations or prosecutions to remove and/or censor information they may have posted on social network sites, e.g. Facebook, Myspace, etc. There are many instances where government will review content on these sites to collect information to further enhance its investigation or its prosecution.
Recently, I read about two cases "downunder" where law enforcement agents used information in Facebook to apprehend criminals. In one instance in New Zealand, a security camera captured a criminal attempting to break into a safe at a local pub. After the event, the police department posted the surveillance photographs on its Facebook page. Within 24 hours, the subject was arrested because viewers of the website readily identified his image. In antoher case, five customers "dined-and- dashed" on a check at an expensive restaurant. Thereafter, the owner remembered that one of the diner's asked about a former waitress. The waitress suggested that the owner search her Facebook list to determine if the criminal could be identified. He was and an arrest followed.
The lessons from these cases are clear. While social networking can be an exciting opportunity to maintain contact with friends and family and to develop new relationships, there is a dangerous downside.
For more information on similar issues visit www.ftlucianolaw.com
Recently, I read about two cases "downunder" where law enforcement agents used information in Facebook to apprehend criminals. In one instance in New Zealand, a security camera captured a criminal attempting to break into a safe at a local pub. After the event, the police department posted the surveillance photographs on its Facebook page. Within 24 hours, the subject was arrested because viewers of the website readily identified his image. In antoher case, five customers "dined-and- dashed" on a check at an expensive restaurant. Thereafter, the owner remembered that one of the diner's asked about a former waitress. The waitress suggested that the owner search her Facebook list to determine if the criminal could be identified. He was and an arrest followed.
The lessons from these cases are clear. While social networking can be an exciting opportunity to maintain contact with friends and family and to develop new relationships, there is a dangerous downside.
For more information on similar issues visit www.ftlucianolaw.com
Monday, January 12, 2009
Increased Use of Cocaine in the White Teenage Community
The University of Michigan recently produced a study that disclosed that over the last seven years, the county has experienced a 24% decline in illicit drug use. There were two limited exceptions. The most startling of which was the use of cocaine by young Caucasians. Specifically, it was found that young whites are four times more likely to use cocaine than their black counterparts. In 2006, the ratio of whites admitted to drug rehabilitation for cocaine or crack addiction was approximately ten times greater than black admissions. It gets worse. According to the study, white teenagers fail to see the serious risks association with cocaine experimentation, which by necessary implications, may have the potential of increasing use even further.
The next question is how will the government approach this troubling information? Will it spike the penalties for teenage-cocaine-related crimes as it has done in the past for similar adult activity? Or, will it structure mechanisms in the criminal justice system that will educate and rehabilitate these misguided youths?
New Jersey seems to be focusing its energy and attention on education and rehabilitation through its hugely successful Drug Court which allows drug addicted criminal to participate in an intensively supervised period of probation without prospects of incarceration.
For more information on New Jersey’s Drug Court system, you should check out the Library Section of my website (www.ftlucianolaw.com), where I expect to post an informative article on the subject in the next 30 days.
The next question is how will the government approach this troubling information? Will it spike the penalties for teenage-cocaine-related crimes as it has done in the past for similar adult activity? Or, will it structure mechanisms in the criminal justice system that will educate and rehabilitate these misguided youths?
New Jersey seems to be focusing its energy and attention on education and rehabilitation through its hugely successful Drug Court which allows drug addicted criminal to participate in an intensively supervised period of probation without prospects of incarceration.
For more information on New Jersey’s Drug Court system, you should check out the Library Section of my website (www.ftlucianolaw.com), where I expect to post an informative article on the subject in the next 30 days.
The Crack in the Crack Cocaine Sentecing Scheme
In December of 2007, the United States Sentencing Commission lowered the sentencing exposure for those individuals convicted of distributing crack cocaine because the existing scheduling scheme was intellectually defective and created a racially driven imbalance between distributors and users of crack cocaine (i.e. black and Hispanic)and distributors and users of powder cocaine (i.e. moneyed Caucasians). In addition, the Commission agreed to roll back the harshness of crack conviction penalties retroactively. The decision to review prior sentencing for retroactive application was delayed, however, until March, 2007 to enable the courts to prepare for the expected tsunami of applications for reconsideration.
The results are now in, and the number are outstanding. A recent report from the Commission found that over 17,000 applications to reduce crack related sentences were filed, and that over 12,000 of those applications were successful. Additionally, it appears that the United States Attorney's Office has not been very contentious with these applications, choosing instead to file objections only under extremely limited circumstances.
Some of the other information published by the Commission's recent report follows:
- New Jersey Federal applicants had an average decrease of 18 months of prison time, where the nation average was 24 months
- In 14 District Courts, every application for a reduction was granted
- Some applications related to convictions as far back as 1989
- 86% of those applicants were black whose average age was 30
It appears that the pendulum, no matter how slowly it appears to be moving, is now swinging in the right direction
The results are now in, and the number are outstanding. A recent report from the Commission found that over 17,000 applications to reduce crack related sentences were filed, and that over 12,000 of those applications were successful. Additionally, it appears that the United States Attorney's Office has not been very contentious with these applications, choosing instead to file objections only under extremely limited circumstances.
Some of the other information published by the Commission's recent report follows:
- New Jersey Federal applicants had an average decrease of 18 months of prison time, where the nation average was 24 months
- In 14 District Courts, every application for a reduction was granted
- Some applications related to convictions as far back as 1989
- 86% of those applicants were black whose average age was 30
It appears that the pendulum, no matter how slowly it appears to be moving, is now swinging in the right direction
Monday, December 8, 2008
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.
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.
Wednesday, November 26, 2008
The Decriminalization of Marijuana
On November 4, 2008, the voters of Massachusetts approved an initiative to decriminalize possession of a small amount of marijuana. In some districts, the voters favored the initiative by 65%. This progressive proposition is consistent with legislation enacted in California quite some time ago.
The frailties of legislation of this type is that: although an individual may possess a small amount of marijuana without state criminal liability, the Federal Government may still prosecute for a violation of the Federal Controlled Substances Act. That much is clear from the United States Supreme Court's decision in Gonzalez v. Raich.
The influence of the Raich case on state laws that decriminalize possession of marijuana may be short lived. This autumn, legislation was proposed in the House of Representatives that would remove all federal penalties, including most civil fines, for the possession and use of marijuana by adults up to three ounces. This unprecedented legislation would effectively legalize the not-for-profit transfers and use of marijuana by "responsible adults."
If you would like more information on criminal drug prosecution in the state of New Jersey, please visit his website at www.cdswiz.com where you can download his recently published book entitled "The Drug War: The Other Casualties."
Frank T. Luciano
Frank T. Luciano, P.C.
147 Main Street
Suite 5
Lodi, New Jersey 07644
(973) 471-0004
www.ftlucianolaw.com
The frailties of legislation of this type is that: although an individual may possess a small amount of marijuana without state criminal liability, the Federal Government may still prosecute for a violation of the Federal Controlled Substances Act. That much is clear from the United States Supreme Court's decision in Gonzalez v. Raich.
The influence of the Raich case on state laws that decriminalize possession of marijuana may be short lived. This autumn, legislation was proposed in the House of Representatives that would remove all federal penalties, including most civil fines, for the possession and use of marijuana by adults up to three ounces. This unprecedented legislation would effectively legalize the not-for-profit transfers and use of marijuana by "responsible adults."
If you would like more information on criminal drug prosecution in the state of New Jersey, please visit his website at www.cdswiz.com where you can download his recently published book entitled "The Drug War: The Other Casualties."
Frank T. Luciano
Frank T. Luciano, P.C.
147 Main Street
Suite 5
Lodi, New Jersey 07644
(973) 471-0004
www.ftlucianolaw.com
Criminal Negligent Homicide?
Recently legislation has been sponsored that seems to create the crime of negligent homicide.
Historically the law has maintained a natural reluctance to impose criminal liability on the basis of negligent conduct. New Jersey's criminal code however, has created criminal offenses based on an actor's negligence. Currently, the law defines negligent criminal conduct to require a gross disregard for the risks associated with the actor's conduct. This new proposed legislation seems to clarify decisional law that authorizes a homicide conviction on the basis of gross negligence.
The rub with this new form of the statute is that, although a conviction would require third degree penalties with a sentencing range of three to five years, it will also authorize an eighteen month minimum mandatory period of incarceration. This term of parole ineligibility is consistent with the unfortunate and inexplicable penchant of some of our legislators to continue to maintain a blood-thirsty philosophy of punishment in the criminal justice system. Indeed, when it is recognized that the legislature has now prohibited punitive damages to be assessed against arrogant industrialists who create devastating loss because of their gross negligence, the current form of the statute blinks at reason.
Historically the law has maintained a natural reluctance to impose criminal liability on the basis of negligent conduct. New Jersey's criminal code however, has created criminal offenses based on an actor's negligence. Currently, the law defines negligent criminal conduct to require a gross disregard for the risks associated with the actor's conduct. This new proposed legislation seems to clarify decisional law that authorizes a homicide conviction on the basis of gross negligence.
The rub with this new form of the statute is that, although a conviction would require third degree penalties with a sentencing range of three to five years, it will also authorize an eighteen month minimum mandatory period of incarceration. This term of parole ineligibility is consistent with the unfortunate and inexplicable penchant of some of our legislators to continue to maintain a blood-thirsty philosophy of punishment in the criminal justice system. Indeed, when it is recognized that the legislature has now prohibited punitive damages to be assessed against arrogant industrialists who create devastating loss because of their gross negligence, the current form of the statute blinks at reason.
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