Articles Posted in Trial Lawyer

The process of criminal pretrial discovery, which involves an exchange of information between parties, is guided by specific rules and limitations. Protective orders, for example, may limit what information is provided to the opposing party or to whom such information may be provided.

Although restricting information may seem like a detriment to the party seeking certain discovery, such restrictions are sometimes justified by public policy considerations such as fairness and privacy.

On June 4th, 2021, the Appellate Division of the Superior Court of New Jersey decided in State v. Ramirez, that the trial court abused its discretion in denying the State’s motion for a protective order to exclude a victim’s home address from discovery made available to the Defendant and his counsel. The Court came to this conclusion based on (1) the nature of the alleged sexual assault, and (2) the relevant matters of public policy.

Voir dire, which means “to speak the truth” in French, also refers to the examination of prospective jurors to determine whether or not they are suitable for jury service. During this jury selection process, a judge may ask standard questions to excuse anyone deemed incapable of serving on a jury. Attorneys involved in the case may also question the jurors to identify any potential biases. If any such biases are suspected, the attorneys may request to remove the biased jurors or exercise a peremptory challenge to exclude those jurors from the trial.

However, some questions asked during this process are likely to create rather than reveal partiality within prospective jurors.

In State v. Leo T. Little, Jr. , the Defendant sought to challenge his convictions for aggravated assault and weapons offenses on the ground that voir dire questioning by the trial court of prospective jurors during jury selection deprived him of a fair trial.

Yes, as held in State v. Sims, if the Court determines that the waiver was not signed knowingly, intelligently and voluntarily then that waiver is considered ineffective and the defendant’s Fifth Amendment Rights can still be violated.

The right against self-incrimination is guaranteed by the Fifth Amendment to the United States Constitution, and by New Jersey statutes. The historic 1966 U.S. Supreme Court case Miranda v. Arizona, requires law enforcement to inform individuals in police custody of these rights prior to questioning.

Generally, by signing a waiver of these rights, an individual who is in police custody acknowledges that they are not being pressured or coerced to provide information to law enforcement personnel.   However, there are exceptions to this general proposition.

Yes, if the court conducts a thorough analysis of the factors listed in United States v. Burton and those factors favor denial of Defendant’s request.

In March of this year the New Jersey Supreme Court dealt with this very issue in the context of a murder trial.  In State v. Luis Maisonet, the Defendant’s request for a new attorney was summarily denied by the trial court.  The record presented a dearth of facts regarding the Burton factors.  Nonetheless, the New Jersey Supreme Court found that it could glean sufficient information from the record to analyze the Burton factors in a fashion that militated against the Defendant.

Before conducting its analysis the Court explained that the major considerations any trial court should contemplate are those of the Defendant’s constitutional right to obtain counsel of his choice, the court’s right to control its own calendar and the public’s interest in the orderly administration of justice.

New Jersey has some of the strictest and most complex firearms laws in the United States.  Often times, prospective clients have questions related to their right to bear arms within our State.  This article endeavors to touch upon some issues that arise as considerations for New Jersey residents.

Is a replica air soft gun (sold at Dick’s sporting goods) a “Firearm” under New Jersey Law?

No, because air soft guns do not fire a solid projectile as required by the statute.  N.J.S.A. 2C:39-1(f.) defines firearm as – means any handgun, rifle, shotgun, machine gun, automatic or semi-automatic rifle, or any gun, device or instrument in the nature of a weapon from which may be fired or ejected any solid projectable ball, slug, pellet, missile or bullet, or any gas, vapor or other noxious thing, by means of a cartridge or shell or by the action of an explosive or the igniting of flammable or explosive substances. It shall also include, without limitation, any firearm which is in the nature of an air gun, spring gun or pistol or other weapon of a similar nature in which the propelling force is a spring, elastic band, carbon dioxide, compressed or other gas or vapor, air or compressed air, or is ignited by compressed air, and ejecting a bullet or missile smaller than three-eighths of an inch in diameter, with sufficient force to injure a person.

On March 4, 2021 Judge Grant provided additional guidance on the Judiciary’s plans for in person jury trials for the remainder of the year.  Judge Grant’s memo notes that the judiciary has been closely monitoring the Covid numbers in an attempt to discern whether or not it is appropriate to start criminal and civil jury trials, in person, again.  Notably, as of March 1st 2021, the statewide 14 day average showed a twelve percent decrease in deaths and a twenty-four percent decrease in hospitalizations.  However, the new case count has increased by three percent.  Despite the amount of new cases, Judge Grant’s memo notes that the figure is still less than one-half of the number of new cases reported at the start of 2021.

Encouraged by these numbers, Judge Grant explains that vicinage judges will continue to conference civil cases for trials with the understanding that virtual civil jury trials will proceed on April 5, 2021.    Moreover, courts are directed to conference the significant number of active criminal cases with the expectation that those matters will be tried, once in-person jury trials resume.

Having legal representation that stays on top of the guidance issued by the judiciary is incredibly important.  Additionally, having counsel who is ready, willing and able to try cases in either format gives your case its best chance.  At our law office, we have successfully tried cases in both a digital and in-person format.  During a consultation, it is my practice to provide guidance to the client as to whether or not their situation would best be handled in person or digitally.

In State v. Damon Williams the court was confronted with the issue of whether or not the prosecutor’s use of a photo of Jack Nicholson in the movie The Shining was inappropriate.

In Williams the defendant walked into a local bank branch and engaged a young female bank teller.  The defendant then lowered his body so that he was at eye level with the teller and passed her a note instructing her to provide all of the cash in her drawer.  In an attempt at mitigating the bank’s losses, the teller attempted to place a GPS traceable package of twenty-dollar bills in the defendant’s bag.  The defendant caught on to the teller’s attempt and instructed her not to do so.  During the entirety of this interaction the defendant did not threaten force, nor did he brandish any weapons.  Upon the defendant’s exit, the bank teller set off the alarm.

The disputed trial issue was whether or not the defendant committed this act with force or the threat of force and whether or not said actions put the bank teller in fear of immediate injury.  The defense argued it did not and that the jury should merely consider the offense a theft (i.e. exercising unlawful control over the moveable property of another.)

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