The Law and Trial Strategy in New Jersey Courts

The Law and Trial Strategy, Historic Somerset County Courthouse, State of New Jersey v. Gilmore, Supreme Court of New Jersey, Batson v. Kentucky, Supreme Court of the United States, SCOTUS, Constitution, Constitutional Law, Fourteenth Amendment, 14th Amendment, Equal Protection, New Jersey Constitution, State Constitutional Law, Impartial Jury, Voir Dire, Jury Selection, Trial, Racial Discrimination, Race-Based, Peremptory Challenge, Peremptory Strike, Federalism, Horizontal Federalism, Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, Warren County, criminal defense, drunk driving, traffic ticket, juvenile, attorney, lawyer, trial attorney, trial lawyerPreviously I blogged about sex- and race-based peremptory strikes under the U.S. and  New Jersey Constitution. Those posts and others have touched on the issue of state constitutions with respect to jurisdictional disputes between SCOTUS and the judiciaries of the 50 states with a focus on New Jersey. These topics can supply engaging reading. Additionally, they provide subject matter for interesting debate and discussion. Significantly, these judicial opinions are the words and actions of a co-equal branch of federal and state government, the court. Thus, they demonstrate how judges exercise power. But none of that is relevant to the law and trial strategy. Read more


State of New Jersey v. Gilmore: The Peremptory Strike and the Right to an Impartial Jury

State of New Jersey v. Gilmore: Procedural History

State of New Jersey v. Gilmore, Supreme Court of New Jersey, New Jersey Constitution, Constitution, Constitutional Law, State Constitutional Law, Impartial Jury, Voir Dire, Jury Selection, Trial, Racial Discrimination, Race-Based, Federalism, Horizontal Federalism, Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, Warren County, criminal defense, drunk driving, traffic ticket, juvenile, attorney, lawyerAn all-white jury of six men and six women convicted defendant, a black man, of three first-degree robberies of two Hispanic gas station attendants in Union, New Jersey. During jury selection, the white assistant prosecutor removed nine black prospective jurors by challenge for cause and peremptory strike. Defense counsel, a black man, moved for a mistrial because the prosecutor removed the black venirepersons based on their race. Nevertheless, the trial judge overruled defense counsel, relying on Swain v. Alabama 1 and State v. Smith.2

Subsequently, the Appellate Division remanded for the prosecutor to state his reasons for excusing the black jurors. Read more


Using The Law: The Exercise of Judicial Power

using the law, State v. Lund, 119 N.J. 35 (1990), Supreme Court of New Jersey, New Jersey Constitution, Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, Warren County, criminal defense, drunk driving, traffic ticket, juvenile, attorney, lawyerI have blogged about New Jersey v. T.L.O.1, Michigan v. Long2, and State of New Jersey v. Lund.3 Those blog posts explained the holding and reasoning of the majority in each case. This post, however, will go to the heart of judicial power: using the law. Nowadays this issue seems to be especially important. Indeed, the news extensively covered one of President Trump’s executive orders banning Muslims from entering the United States. And after Trump criticized a judge for blocking the order, some people defended that judge and the judiciary as an independent branch of government.

Known as “Separation of Powers” doctrine, Read more


State of New Jersey v. Lund: State and Federal Constitutions in Lockstep

State of New Jersey v. Lund, 119 N.J. 35 (1990), Supreme Court of New Jersey, New Jersey Constitution, Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, Warren County, criminal defense, drunk driving, traffic ticket, juvenile, attorney, lawyerPreviously I blogged about Michigan v. Long.1 The Supreme Court of the United States (SCOTUS) broke new ground under federal law with respect to two issues in Long: SCOTUS review of state court decisions, and Terry searches of cars. With respect to its jurisdiction to review decisions based on adequate and independent state grounds, SCOTUS articulated a “plain statement” rule for state courts to follow. Additionally, with respect to the Fourth Amendment, SCOTUS applied Terry v. Ohio 2 to protective searches of cars, requiring proof of a reasonable belief about the presence of weapons. This blog post will look at Read more


State of New Jersey v. Best: The Fourth Amendment on Public School Property

State of New Jersey v. Best, 201 N.J. 100 (2010), Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, Warren County, criminal defense, drunk driving, traffic ticket, juvenile, attorney, lawyerPreviously I blogged about New Jersey v. T.L.O. 1 The focus of this post, State of New Jersey v. Best 2 applies T.L.O. to a warrantless car search on school property by a school official. The United States Supreme Court in T.L.O. addressed whether the exclusionary rule applies to evidence seized by a school official without police involvement in juvenile delinquency proceedings. SCOTUS answered this question in the affirmative.Notwithstanding the State’s position that school officials act as surrogates for the actual parents (in loco parentis), the Court decided they are State Actors. Indeed, by rejecting the State’s position, SCOTUS reasoned the breadth and Read more


Consideration for Pretrial Release, N.J.S.A. 2A:162-17

bail reform act, bail, consideration for pretrial release, njsa 2A-162-17, New Jersey, Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, Warren County, criminal defense, drunk driving, traffic ticket, juvenile, attorney, lawyerPreviously I blogged about the New Jersey Bail Reform Act. The law favors pretrial release. But it also requires the court to analyze various factors. This post will set forth the factors the court must weigh in consideration for pretrial release of an eligible defendant.

Except as otherwise provided concerning a hearing on pretrial detention, the New Jersey Bail Reform Act requires a court to make a pretrial release decision for an eligible defendant without unnecessary delay, but in no case later than 48 hours after the eligible defendant’s commitment to jail. Read more


Bail Reform and Political Scapegoating

Recently I read about and listened to Gov. Chris Christie’s criticism of the bail bond industry in the context of New Jersey bail reform.1Like a politician, he conjured up a scapegoat by shining a spotlight on bail bondsmen while defending the Bail Reform Act. Indeed, Gov. Christie claimed, “The bail bonds community has made a fortune over the years predominantly on the backs of poor people in New Jersey.” Oh, really? Read more


Pretrial Detention and the N.J. Bail Reform Act

Under what circumstances may the prosecutor file for pretrial detention?

New Jersey, Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, Warren County, criminal defense, drunk driving, traffic ticket, juvenile, attorney, lawyerThe State may file for the pretrial detention of an eligible defendant charged for any crime or offense:1

  1. of the first or second degree enumerated under subsection d. of section 2 of N.J.S.A. 2c:43-7.2
  2. that subjects the eligible defendant to an ordinary or extended term of life imprisonment;
  3. if the eligible defendant’s criminal history reflects convictions for two or more offenses for either of the above categories;
  4. enumerated under paragraph (2) of subsection b. of section 2 of N.J.S.A. 2c:7-2 or crime involving human trafficking pursuant to section 1 of N.J.S.A. 2c:13-8 or N.J.S.A. 52:17B-237 et al. when the victim is a minor, or the crime of endangering the welfare of a child under N.J.S.A. 2c:24-4;
  5. enumerated under subsection c. of N.J.S.A. 2c:43-6;
  6. involving domestic violence as defined in subsection a. of section 3 of N.J.S.A. 2c:25-19; or
  7. for which the prosecutor believes there is a serious risk that:
    1. the eligible defendant will not appear in court as required;
    2. the eligible defendant will pose a danger to any other person or the community; or
    3. the eligible defendant will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure or intimidate, a prospective witness or juror.

Read more


Speedy Trial, Excludible Time, and New Jersey Criminal Justice Reform

speedy trial, excludible time, new jersey bail reform act, criminal justice reform, N.J.S.A. 2A:162-22Previously I blogged about the Pretrial Detention Hearing Factors under the New Jersey Bail Reform Act. Although the policy of New Jersey’s criminal justice reform favors pretrial release, a prosecutor may move before the court for pretrial detention. In practical terms, a defendant ought not get his hopes up until the court orders the defendant released from custody. Indeed, the court could grant the State’s motion. Consequently, the State would lock up the defendant. If so, in addition to other obligations the court must also calculate speedy trial deadlines.1, 2

But the court may also exclude thirteen thirteen periods in calculating the time for a case to be indicted and tried.3 Read more


Pretrial Detention Hearing Factors

The Three Primary Goals of the New Jersey Bail Reform Act

New Jersey, NJ, Bail Reform Act, State Constitution, Article I Paragraph 11, Pretrial Detention Hearing Factors, N.J.S.A. 2A:162-15, N.J.S.A. 2A:162-20, N.J.S.A. 2A:162-21, N.J.S.A. 2A:162-23, N.J.S.A. 2A:162-24Previously I blogged about the New Jersey Criminal Justice Reform and the Bail Reform Act, which took effect on January 1, 2017. Among other things, these legal developments favor, though not exclusively, the pretrial release of eligible defendants. But a prosecutor may file a motion for the court to permit the State to lock up the defendant before trial. Accordingly, the Bail Reform Act provides Pretrial Detention Hearing Factors for the court to consider.

In deciding whether to grant a prosecutor’s motion for pretrial detention, the court must find no amount of monetary bail, non-monetary conditions or combination of monetary bail and conditions Read more