Alternative Funding Sources for Parks

Last month New Jerseyans voted to keep the Garden State Preservation Trust alive, committing the government to sell $400 million in bonds. This ballot referendum appeared as Public Question #1, and I blogged about it here. That post expressed concern about the amount of funding involved, and reviewed private sector activities that could defray the costs of maintaining our public parks.

More recently this article about National Parks and private research appeared in the news. Under this program, scientists conduct research in the parks and in turn they share a portion of the profits that comes from their research with the respective parks.

This program makes sense, but some object to this arrangement. Nay sayers insist this is tantamount to privatization. This position, however, seems exaggerated. In reality, the park lands are not sold to a private entity. On the contrary, these arrangements appear as a fiscally responsible funding alternative. Furthermore, this demonstrates creative, "outside-of-the-box" problem solving. Therefore, if the Garden State does not already have a similar program, it should follow this model.

Text-a-Tip: Anonymous Tips and the Police

The Fourth Amendment of the United States Constitution and Article One Paragraph Seven of the New Jersey Constitution protect the individual's right against unwanted contact with the police.

I blogged about citizen-police encounters here, here, and here, explaining this freedom we enjoy in America, and how increasing degrees of suspicious circumstances tend to mitigate against this right.

An anonymous tip may lead to an unwanted encounter with the police. An anonymous tip involves an individual whom the police do not know providing information. This recent article is about anonymous text messages as tips for the police.

This technology is intended to encourage the public to assist the government in its police work. But the police may not act on tips like these unless certain factors are established about the informant:
  1. Her veracity must be known,
  2. Her reliability must be confirmed, and
  3. her basis of knowledge must ‎support the reported information.

Absent these criteria, the police must not infringe on an individual's right to be left alone.‎

These three elements are flexible guideposts for commonsense, practical determinations whether contraband or evidence is located in a particular ‎place. An anonymous tip ‎alone, with scant exception, never justifies an unwanted encounter with the police.

The first prong involves veracty. New ‎Jersey courts assume veracity when the tipster is a law-abiding citizen. Citizen-informants ‎and law enforcement officials seem to share similar motivations for achieving similar goals.

The second prong reviews the tipster's reliability. To establish this, the police must verify the tip through an independent investigation that corroborates the tip. As indicated above, the anonymous tip alone almost never provides legal justification for an unwanted encounter with the police. These ‎additional steps by the police, however, fill this gap.‎

Finally, the third prong probes the tipster's basis of knowledge. This determination requires courts to consider the tip itself. Various factors, taken individually or together, guide the determination ‎of the basis of knowledge. Courts may:

  • Inquire as to the nature and details in the tip ‎itself. The contents of the tip may demonstrate the trustworthiness of the informant's knowledge.
  • Consider whether the tip predicts hard-to-know future events. This type of information may demonstrate that the informant has personal knowledge of the alleged criminal conduct.
  • Apply these factors as part of the totality of circumstances before concluding whether the police had legal justification to infringe on the individual's right to be left alone.

As mentioned above, this article is about Text-a-Tip programs for tipsters to help police. Some cell phones limit text messages to 160 characters. Courts look at anonymous tips to find who the tipster observed, what the tipster perceived, when the alleged events took place, where the alleged events occurred, and how the people behaved. As a result, the Text-a-Tip program might simply be a political expedient while failing to provide evidence that will hold up in court.

I Will Sing This Victory Song

Republican victories on November 3, 2009 in New Jersey and Virginia have been the subject of analysis. In light of all the attention given to these elections during the leadup, it is unsurprising to have found many commentators extacting messages from the results.

This article presents the straightforward facts. Christie rode suburban financial angst to victory . I like this article for two reasons. First, it presents the issues as local concerns, and does not mention the federal government. Property taxes, for example, are strictly a state issue. That is proper subject matter for a state election. Second, it spells out the issues on voters minds instead of speculating.

Another article expresses the view that widespread angst about the economy is shared by voters. Voters to pols: Give us jobs, results, not spats. With some 250 House Democrats and 16 Senate Democrats who will be up for re-election, this piece warns these candidates to take notice of these financial concerns, or else voters will give them the boot.

I have a problem with this view. It assumes, despite all the media coverage about the recession and unemployment, that Washington is oblivious. I am certainly not one to shift what I like to call the "burden of truth" away from politicians. But this viewpoint goes too far in its assumption that they are ignorant, illiterate, and isolated from reality (a view that I do not generally dispute). Nearly 16 million people cannot find jobs and employers have shed jobs across most industries. Currently unemployment is at 10.2%, with predictions it will reach 10.5% next year. Even I, the quintessential cynic, cannot imagine a congressman waking up to this news, scratching his head, and saying bemusedly, "The economy?"

One thought-provoking analysis, however, relates to conservative democrats. If they get the hint from the November 3, 2009 election results, they may design campaign platforms based on fiscal and social conservatism. This podcast provides more insight on this angle as to this week's changing of the guard.

"I disapprove of what you say, but I will defend to the death your right to say it."

The First Amendment protects speech and provides for freedom of expression, restraining ‎government power in locations like public sidewalks, streets, and other publicly owned areas.

The Bill of Rights gives individuals in these places the freedom to distribute ideas either in writing or orally.

All laws concerning speech must be content and viewpoint ‎neutral. This means statutes must not state, imply, or intend to regulate speech ‎because of a disagreement with its message or idea.

Protecting spoken words, this does not prohibit laws that govern the ‎surrounding circumstances in which the speech occurs. Put differently, the Constitution limits the power ‎to regulate what people say, but it does not entirely curtail the police power in "the marketplace" of ideas.

Indeed, the law balances individual liberty with the government’s duty to protect the health and ‎safety of its citizens. As a result, the government may regulate the time, place, or manner of ‎protected speech. This means the government may regulate when, where, and how speech ‎may occur.

Even so, this is not unbridled government ‎power. On the contrary, freedom of speech is a fundamental right.

Even though the government ‎may regulate as to time, place, or manner, these laws must be narrowly tailored to a legitimate, content-‎neutral government interest. Futhermore, they must be the least restrictive means of serving a given legislative ‎goal while leaving open ample alternative channels for communication.‎

Brown v. Pittsburgh (3d Cir. 2009).

Character Evidence on Trial

In the same way the marketplace thrives on money, evidence is the currency in court. This is because courts have no basis to apply the law without evidence. Today New Jersey, like other jurisdictions, has codified its Rules of Evidence. In a criminal trial, the State carries the burden of proof. This means the State must prove all of its evidence beyond a reasonable doubt, showing the defendant is the one who committed the offense at a particular time in a particular place in a particular way. The accused, generally speaking, does not have to prove anything.

This article is about a Florida man, Edward Ates, on trial for homicide in New Jersey. The State alleges he shot the victim as an expert marksman. The defendant maintains this was impossible because he was too fat.

Getting the evidence of the defendant's girth in front of the jury requires both skill as a trial advocate, and knowledge of the law of Evidence. What follows is a rudimentary legal analysis.

First, all relevant evidence is admissible unless an exclusionary rule applies. "Relevant evidence" makes the existence of a disputed fact more likely or less likely. N.J.R.E. 401. The dispute in this trial is whether Edward Ates did, in fact, murder his son-in-law. The State wants to show Mr. Ates is the one who did it by firing a weapon at the victim. Mr. Ates wants to introduce evidence of his weight at the time his son-in-law was killed, 285 pounds, because it goes to the heart of the defense theory that he could not have run up a flight of stairs and accurately fired a weapon at a target. Therefore, this evidence is relevant because it makes it less likely Mr. Ates committed this crime. Relevance, however, is only the first step.

Second, character evidence, though relevant, is generally excludible. N.J.R.E. 404(a). As indicated above, relevant evidence is admissible unless an exclusionary rule applies. "Character" is evidence of a person's traits and it may be highly relevant. But as a general proposition it is not admissible. When a person has a general trait that the State wants to use for its case in chief, a jury might mistakenly reason from the general to the particular. As indicated above, the State has the burden of proof. Character evidence is extremely dangerous because the jury might erroneously determine that the person acted in a particular way on a particular occasion that conforms with a general trait. The defendant, on the other hand, does not have to prove he did anything, and the rules of evidence recognize this with an exception to the rule against character. That is, an accused may offer pertinent evidence of his own character for the jury to consider. N.J.R.E. 404(a)(1). This allows the jury to reason from the general to the particular and conclude the defendant did not do the act of which he is accused. Even though this might be erroneous, the court allows the jury to make a mistake.

In this case, Mr. Ates wants to introduce evidence of his weight. This is classic character evidence because he wants the jury to find his general character for obesity prevented him from committing the act of murder as the State has alleged. Since he is the accused the rules clearly allow this evidence to be presented to a jury, and he is introducing it in his defense. Therefore, this relevant character evidence is admissible.

Finally, judges must weigh the value of the evidence against other concerns for the jury. More specifically, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence. N.J.R.E. 403.

Here, the defense theory is factual impossibility. Namely, Mr. Ates could not possibly have killed his son-in-law. Due to his weight, he could not have run up the flight of stairs and accurately fired the weapon. The evidence of his weight, therefore, has tremendous weight, and there is no risk to its admission. Therefore, the evidence is admissible.

Obviously anyone who read the article already knows the jury heard this evidence. But those who do not know the law of evidence could not have known the analysis which the lawyers argued and the court engaged in before the evidence was presented.

State v. Edward Ates

[UPDATE #1: Closing arguments begin in NJ 'fat defense' case.]

[UPDATE #2: Jurors review evidence in NJ fat defense case.]

[UPDATE #3: NJ jurors convict Fla. man in 'fat defense' trial.]

Public Question #1

On Tuesday, November 3, General Elections will take place in New Jersey. This election is particularly important because voters will choose the next governor. There has been much coverage about the campaigns of Gov. Jon Corzine (Democrat) and Chris Christie (Republican), even drawing national attention. President Obama, for example, has already appeared twice for Corzine, with a third visit planned for Camden and Newark.

[UPDATE #1: Obama goes to NJ for final pitch of '09 elections.]

[UPDATE #2: Obama says NJ governor is key to his own agenda.]

[UPDATE #3: Handful of elections shed light on US politics.]

Also appearing on the ballot is a Public Question that, to my knowledge, has received much less coverage. In a nutshell, this ballot initiative asks voters either to approve or reject $400 million in state funding for the New Jersey Green Acres Program. Seeing the number $400,000,000 and knowing nothing about this program, I wanted to find out more.

I found paltry information about the public debate over this. Unsurprisingly, according to one side New Jersey must devote finances to sustain and develop the State's ecology. Predictably, according to the other side allocating $400 million is fiscally irresponsible. Needless to say I kept searching.

Eventually I found the web site for the Green Acres Program. Established by N.J.S.A. 13:8C-24, this Office works with municipalities and non-profits by providing funds to acquire lands for public recreation and conservation. The Garden State, it turns out, still has 70% of the land either preserved or undeveloped. Comprised of 4.8 million acres, about 1.3 million acres are permanently preserved, 1.4 million acres are developed, and 2.1 million acres are undeveloped.

The statute that created this Office also requires Green Acres to adopt application procedures for grants and loans and develop criteria and policies for evaluating and ranking projects, which appear in N.J.A.C. 7:36-1.1 to -21.4. This achieves two purposes. First, and most obviously, applicants must follow these rules either for either loans or for grants, providing them with the objective criteria that Green Acres will consider. Second, this bolsters the appearance of regularity in government conduct. The agency could hardly be faulted for following its own administratively approved rules.

Indeed, I witnessd the evolution of one Green Acres project, Johnson Park. This park is between the Rutgers-Camden campus and the Delaware River. Interestingly, Johnson Park features a statue of Peter Pan that is strikingly similar to one in London's Kensington Gardens.

The Green Acres web site describes the Office's four divisions: (1) State Park & Open Space Acquisition, (2) Local Governments and Nonprofit Funding, (3) Stewardship - Keeping It Green, and (4) Planning & Information Management.

As I began to understand more about Green Acres, I wondered why Green Acres relies on public funding instead of private sector activities to raise capital. Speaking engagements, for example, can provide a revenue stream. I wondered whether Green Acres, since its inception, had developed or implemented any innovative solutions in its field. There might be audiences that would like to know about Green Acres' history and achievements. On a more aggressive scale, given the importance of environmentalism nowadays, why does Green Acres not provide environmental consulting services to New Jersey corporations? Instead of turning to voters for funding approval, Green Acres could take at least partial responsibility for its budget.

One objection, however, is this could lead to appearances of impropriety based on business relations with a government office. This is an understandable concern where agreements involving land use are concerned, especially because New Jersey government has a less-than-squeaky-clean reputation. For that matter, the same regulations that set forth the application procedures for municipalities and non-profits provide, "These rules shall be construed liberally to effectuate the purposes and objectives of the Green Acres laws." N.J.A.C. 7:36-1.3 (emphasis added). On the one hand, this probably allows Green Acres to foster and maintain positive relations with applicants and approved entities. It is conceivable, however, that this discretion could undercut the regularity of conduct mentioned above. As long as that possibility exists, it seems Green Acres might have to refrain from engaging in private sector activities to raise capital, and instead rely on voters.

Whether to vote "yes" or "no" on November 3 is a personal decision. Even so, this research provided me with a better understanding about New Jersey and some of the issues involved in Public Question #1.

Confrontation Clause and Prior Criminal History

"In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. The right of the accused to cross-examine derives from the Confrontation Clause. Bruton v. United States, 391 U.S. 123 (1968). The Anglo-American tradition relishes live in-court testimony "by testing in the crucible of cross-examination." Crawford v. Washington, 541 U.S. 36 (2004). Only by cross-examination can a defendant expose falsehood and bring out the truth in a criminal trial. Pointer v. Texas, 380 U.S. 400 (1965).

In a criminal trial, when it comes down to it, cross-examination is all the defendant really has. It is the one thing standing between the truth and the government's case in chief. This hallmark of great trial lawyers alerts the jury to holes the government might want to conceal.

But this right has limitations. The issue in the following case is whether the Confrontation Clause allows cross-examination to get into an adverse witness' criminal history. The Appellate Division held in this case that it does not. This was because the adverse witness was fully cross-examined in front of the jury about inconsistent statements, and his testimony was corroborated by evidence linking the defendant to the crime.

State v. Raafiq Leonard (App. Div. 2009).

"You don't look so bad, here's another" - Bernie Goetz

The Second Amendment does not apply to the states, at least not yet. Unless and until the Supreme Court selectively incorporates it into the Fourteenth Amendment (litigation is pending), states are free to determine how to regulate gun ownership. Some states have provisions in their own constitutions, others do not. In New Jersey, there is no state constitutional right to bear arms. Instead, it derives entirely from statute.

Indeed, New Jersey law heavily restricts gun ownership. Some support this, others oppose it. Without exploring that debate, suffice it to say this is the state's law and policy. Though regulated, obtaining a permit to purchase a weapon, as provided by N.J.S.A. 2C:58-3, is less burdensome than getting a permit to carry, as provided under N.J.S.A. 2C:58-4.

An applicant for a permit to purchase usually applies with the police in the town where he lives. Following an investigation, state law vests the police chief with the authority either to grant or to deny the application based on a grid of factors set forth by the statute. If denied, the police chief is required to send a letter with the reasons for the denial. Upon receiving the denial letter from the police, the applicant has thirty days to request a full hearing in court. Assuming the applicant submits a timely appeal, he is entitled to this hearing no more than thirty days after the court receives the request.

Before the hearing, the applicant has the right to meet with the police chief to discuss the reasons for the denial. This might provide a useful discovery tool for the applicant. But where the window of opportunity is only thirty days, time is clearly of the essence. Therefore, applicants might skip the meeting. At the court hearing, the parties develop a record with testimony from witnesses, and the court may either affirm or reverse the police chief's denial.

Although this post began with a few words about the Second Amendment, the steps described above trigger other constitutional guarantees, namely Procedural Due Process. Generally speaking, Procedural Due Process provides an individual (1) will be provided with notice of pending litigation where he is an interested party, and (2) an opportunity to be heard. New Jersey Rules of Court embrace this. Surprisingly, the opinion below involves a handgun applicant who was denied the opportunity to be heard.

In The Matter of Anthony Dubov (App. Div. 2009).

"Thank You America, You Were the Beacon of Freedom for the World."

The debate between the right and the left about the environment is simple enough to understand. Conservatives favor limited government, and so they prefer free market solutions for the greater social good. Modern liberals, however, favor expanded government and broader regulation. This basic framework makes sense for understanding the political divide on the environment. Guided by these principles, conservatives historically have embraced lenient environmental policies, while liberals have endorsed stricter regulatory agendas.

But is there more to "the environment" than appears? Below is a clip from a lecture by Lord Cristopher Monckton. Speaking on October 14, 2009, Lord Monckton characterized the forthcoming Copenhagen Treaty as a tool for the redistribution of wealth.

On that basis, Lord Monckton claims it is a tool of communism. Most likely I would be skeptical were it not for the material I have read about another major measure dealing directly with the environment, "cap-and-trade." Briefly, cap-and-trade imposes emissions limits ("cap"), and allows producers with excess credits to sell their credits to producers with excess emissions ("trade"). Critics, on the other hand, view it as a tax on consumers because the cost is passed on to them. More significantly, they deride it because it stifles the free-market economy.

There is, of course, much more to say about cap-and-trade. As to the more general issue here, this might be another instance where it pays to question the motives of our elected officials. Without personally claiming communism, because that is a very slippery slope, the politician's hallmark has never been honesty.

Snow Job

The State of New Jersey likes staying ahead of the curve. But motorists are probably not ready for this curve ball! Gov. Corzine and the Legislature are hailing a new bill requiring drivers to make all reasonable efforts to remove snow or ice from their vehicle, including the roof, hood, trunk and windshield.

Clearly automobiles with frozen ice and snow pose safety risks, especially on the highway. But this regulation, apparently the first of its kind in the nation, raises more questions than it answers. First, what is the definition of "all reasonable efforts?" Second, is a police officer to be trusted with fair decision making of this sort at the side of the road? Third, at what point will the police have the authority to issue a citation: even before or only after observing ice fragments fall from a car? Fourth, will the execution of this law provide a pretext to stop motorists? Finally, in the absence of physical evidence, how will courts fairly weigh an officer's claims against a driver's denials? This regulation does not provide an adequate solution.

Safer roads are a great idea but this law compromises too much, leaving New Jersey residents with little reason to rejoice. Not so obvious are drivers coming from other states who traverse New Jersey's all too famous roadways. They are the more likely targets.

Read more about New Jersey's latest snow job.


Many people do not like planning for "the inevitable," but most know it is important. A good ‎estate plan covers all the contingencies.‎

My brother-in-law, Jason, is a lawyer. Among other talents, he helps clients with estate planning. I studied this subject in ‎law school, ‎but he explains the practical importance of estate planning better than anyone I have ever heard. ‎A "will contest" usually means the parties either will wind up in court or will spend significant resources disputing the intentions of the testator. For better or for ‎worse, the ‎court has to make a best-guess at the intentions of any unclear terms in the will. ‎As Jason explains, this is because the star-witness is six feet ‎under and not available to testify or clean up the “messy” documents that are being challenged and reviewed.

Imagine the people in your life. When you “permanently retire,” your survivors will carry memories of you. Imagine the people you know and love going to court to decide where you should be buried or what you meant to do with your estate’s assets. Although it could have been avoided with good planning, this is the gist of what happened in Marino v. Marino (N.J. 2009).

Protecting Your Privacy

If you canned MySpace and are now hopelessly devoted to facebook, this information is crucial.
Hiding your "virtual tracks" is important nowadays because anyone with an opinion has a blog (ahem), "social networking" is more popular than "in person networking," and google searches are ubiquitous. If for no other reason, consider managers, co-workers, or prospective employers discovering your personal business. Abandoning an account leaves this sensitive information vulnerable. Without a doubt you can think of other possibilities.
How to Delete Accounts from Any Website

Res Judicata

In order to prevail on res judicata, a defendant must demonstrate:
  1. a final judgment on the merits in a prior suit;
  2. involving the same parties or their privies; and
  3. a subsequent suit based on the same cause of action.
Elkadrawy v. Vanguard (3d Cir. 2009).

Deportation: A penal or collateral consequence?

In this article the issue before the Court is whether the Sixth Amendment requires a lawyer to advise clients of the deportation ‎consequences of a guilty plea. The Court has not rendered a decision yet, so right now it is only as a collateral consequence. Therefore there is no Sixth Amendment duty to give this advice. The Court may change directions.

Practically speaking, the New Jersey Plea Form covers this point in Question 17. The client reviews this form with his lawyer, signs it before entering the guilty plea, and the judge admits this evidence during plea hearings. So in New Jersey it seems that unless a lawyer completely skips ‎this question, it should be less of a concern.‎

"Happiness is a Warm Gun."

There is powerful historical evidence that a right to bear arms would have empowered citizens to protect themselves against government tyranny. Instead, these people were annhilated. Alternatively, gun ownership is a tremendous responsibility because they are deadly. See McDonald v. Chicago, 561 U.S. 3025 (2010).

"Three Felonies a Day"

Harvey Silverglate gave this interview to the Cato Institute. During the conversation, he made points about the balance of power between the Federal Government and the States similar to what I wrote here.

Trial By Jury - A Cherished Right

It is hard to feel badly for William Oscar Harris. While under indictment for fraud Mr. Harris sent phony financial documents appearing to create liens and judgments against the judges and prosecutors involved in the trial.

When he refused to obey the court's order to stop, Mr. Harris was held in civil contempt and confined. This has not deterred Mr. Harris.

He was tried, convicted, and sentenced for the fraud charges. But the criminal sentence has been held in abeyance because Mr. Harris has not stopped his harrassing conduct. Under these facts his continued and indefinite incarceration for civil contempt is not unjustified. After all, he holds the keys to his prison cell.

That the prisoner challenged the contempt order reminded me of a child who would kill his parents and then plead for mercy as an orphan. In that regard, based on the facts of this case I understand the majority's absence of sympathy.

Then again when the facts are against you then argue the law, and here Mr. Harris argued the indefinite confinement violates due process. On that note, I could not help but think bad facts make bad law. Here the facts about Mr. Harris are certainly bad. But judges and courts are not above the law. This defendant has been incarcerated for over five years without a trial by jury. If this incarceration is to continue, it should only be upon the judgment of his peers.

United State v. Harris (3d Cir. 2009)

Federalism - The Tenth Amendment.

I blogged before about standing under New Jersey law here (statements) and here (search and seizure). This post deals with standing to raise a claim under the Tenth Amendment. Notwithstanding a split among jurisdictions, the Third Circuit will not address the merits of whether the federal government has overreached its constitutional authority and impinged on state sovereignty without first addressing standing. In short, standing requires the involvement of the state or their officers as a party or parties (Tennessee Elec. Power Co. v. Tennessee Valley Auth., 306 U.S. 118, 143–144 (1939)). United States v. Bond (3rd Cir. 2009).

Strikingly the government pursued a theory at trial under the Chemical Weapons Convention Implementation Act of 1998, a statute enacted pursuant to the Chemical Weapons Convention of 1993. In other words, this statute was the product of an international agreement.

Notably, the Third Circuit explains this Convention was intended to prohibit "the development, production, acquisition, stockpiling, retention, transfer and use of chemical weapons . . . .” OK, so in the context of an international Convention, is it more likely the parties contemplated national security threats or actions taken by an enraged wife against her husband's paramour?

Yes, Congress intended to "[p]rohibit natural and legal persons anywhere on its territory . . . from undertaking any activity prohibited . . . under this Convention . . . ." Yes, there is evidence that this defendant did something wrong by stealing chemicals from work. And yes, there is evidence that she is blameworthy for using the chemicals to try to hurt the victim. But both the government and the court are reading the plain text and legislative intent much too broadly in applying the law to this defendant. I cannot help but wonder why the feds did not decline to pursue this, and instead leave this to the State authorities.

Update: This piece about the Tenth Amendment in politics appeared today at the WSJ Law Blog. The Law-N-Politics Neologism of the Day: ‘Tenther’.

Peremptory Strikes - The Impartial Jury Right

Sex-based and race-based peremptory strikes are prohibited by the Equal Protection Clause of the U.S. Constitution. Batson v. Kentucky, 476 U.S. 79 (1986) (prohibiting race based strikes); J.E.B. v. Alabama, 511 U.S. 127 (1994) (prohibiting sex based strikes).

New Jersey law prohibits them primarily as a violation of the right to an impartial jury under N.J. Const. art. I ¶¶ 5, 9, and 10. Thus, the New Jersey judiciary prevents the U.S. Supreme Court from exercising appellate review because there is no subject matter jurisdiction, so long as state law provides at least the same protection as federal law.

Here, the N.J. Supreme Court adopts a modification under federal law for purposes of state law analysis. State v. Osorio. See also Comment, Criminal Procedure - The Quintessential Exercise of the Peremptory Challenge: Denial of Peremptory Strike Possibly Violates Section One of the Kentucky Constitution. Rutgers L.J. 1485 (2007) (available at

Experienced New Jersey Criminal Defense Lawyer Michael Smolensky, Esquire, knows how to protect his clients. Mr. Smolensky can provide consultations on all cases regarding trials.

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Click "New Judicial Federalism," labeled in the post footer, for more examples and explanations about this topic.

Prisoners and Federal Civil Litigation

Repeal by implication is disfavored. Here, the Prisoners Litigation Reform Act does not repeal by implication Federal Rule of Civil Procedure 20. Accordingly, prisoners are not precluded from permissive joinder. Hagan v. Rogers (3rd Cir. 2009).

Standing - Right to Remain Silent

I blogged once before about standing here. That post dealt with standing under the New Jersey Constitution to suppress evidence seized during an unlawful search.

This post relates to standing to suppress statements.

The New Jersey privilege against self-incrimination, derived from state common law, is broader than the Fifth Amendment. But standing here is in lockstep with federal law.

Unlike search and seizure, standing to object to statements is strictly a personal right. State v. Baum.

Supervised Release Revocation & Due Process

Hearsay is not admissible in supervised release revocation hearings unless the government shows good cause to deny the releasee's Due Process right to cross-examine adverse witnesses.
To determine good cause, hearing officers must consider:
  1. the reliability of the hearsay, and
  2. the cause why the witness is not produced.
United States v. Lloyd (3rd Cir. 2009).

Gang Violence and Criminal Law

This case involves the VICAR statute and addresses:
  1. voir dire as related to Fifth Amendment due process and Sixth Amendment impartial jury rights,
  2. proof of guilt beyond a reasonable doubt,
  3. federal rules of evidence 401 and 403, and
  4. sentencing.
United States v. Preston Jones a.k.a. Death (3rd Cir. 2009).

Malicious Use of Process

The elements of the common law tort malicious use of process are:
  1. filing a complaint,
  2. without probable cause,
  3. that was actuated by malice,
  4. that terminated in favor of the party now seeking relief,
  5. that caused the party now seeking relief to suffer a special grievance.
LoBiondo v. Schwartz.

Rational Basis Review - "Lovely as a Tree?"

This case presents another Big Government Bonanza, subjecting private property owners to yet another regulation.

Tree removal ordinance is valid exercise of police power because the details of the ordinance are rationally related to broad environmental goals.

Private property owners who remove a tree must either plant a new one on their private property or pay a fee to plant one on public property.

NJ Shore Builders Assoc. v. Twp. of Jackson.

Ex Post Facto Clause

The Ex Post Facto Clause prohibits:
  1. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action;
  2. Every law that aggravates a crime, or makes it greater than it was, when committed;
  3. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed;
  4. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender.
State v. Fortin.

Tender Years Hearsay Exception and Confrontation Clause

A child's statements to her mother as to a sexual assault fell within the tender years hearsay exception and did not violate the right of confrontation. State v. Coder.

Rules of Court - Personal Jurisdiction

This case illustrates the ins-and-outs of civil procedure as prescribed by the Rules of Court. NJ Cure v. Estate of Robert Hamilton.

Malicious Prosecution

The elements of the cause of action for malicious prosecution are (1) the criminal action was instituted by the defendant against the plaintiff, (2) it was actuated by malice, (3) there was an absence of probable cause for the proceeding, and (4) it was terminated favorably to the plaintiff. Brunson v. Affinity Fed. Credit Union.

Exculpatory Clause Enforcement

Exculpatory contract clause may excuse negligence, but only if:
  1. enforcement does not adversely affect the public interest;
  2. the exculpated party is not under a legal duty to perform;
  3. the contract does not involve a public utility or common carrier; and
  4. the contract does not grow out of unequal bargaining power or is otherwise unconscionable.
Marcinczyk v. N.J. Police Training Comm'n.

Sex in the Courtroom???

Due Process--Traditional Notions of Fair Play and Substantial Justice

The Due Process Clause of the United States Constitution governs a State's exercise of jurisdiction over a nonresident defendant. Thus, a "defendant's contacts with the forum State must be such that maintenance of the suit does not offend traditional notions of fair play and substantial justice."

Minimum Contacts Test

The "minimum contacts" with the forum State required to exercise jurisdiction over a nonresident will be found only if a defendant
  1. "purposely avails [himself] of the privilege of conducting activities within the forum State" and
  2. his contacts with the State are of a nature that "he should reasonably anticipate being haled into court there."

Categories of Personal Jurisdiction

The United States Supreme Court distinguishes between causes of action directly related to the defendant's contacts with the State, and causes of action that are unrelated to those contacts:

Specific Jurisdiction. Courts exercise specific jurisdiction over nonresidents where the cause of action directly relates to the nonresident's contacts with the forum state

General Jurisdiction. Courts exercise general jurisdiction over nonresidents where the cause of action is unrelated to the nonresident's contacts with the forum state
C.L. v. W.S., 406 N.J. Super. 484 (App. Div. 2009)

New Hearsay Exception

This case introduces a new hearsay exception in New Jersey - Forfeiture-By-Wrongdoing. It applies when a statement is offered against a party who has engaged, directly or indirectly, in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. State v. Byrd

Interstate Agreement on Detainers

This involves the transfer of a prisoner between jurisdictions. The Interstate Agreement on Detainers does not apply when the State has not lodged a detainer in the sending state.State v. Forrest Baker.

Dressed to the Nines

The Supreme Court of New Jersey exercises its supervisory powers under the State Constitution to impose a level playing field. As a general rule, corrections authorities should supply prison witnesses with civilian clothing and those witnesses should never appear in the courtroom in prison attire. State v. Paul Kuchera.

Probable Cause

Арест пропагандиста.
(Arrest of a Propagandist.)

Ilya Repin (1844 - 1930)
[Public Domain],
via Wikimedia Commons
Police-citizen enounters fall into three categories. Each tier requires a higher evidential threshold for justification. This entry will describe the most intrusive encounter, namely the arrest, and therefore the most burdensome encounter to justify.

The circumstances provide probable cause when the investigation consists of enough evidence to allow a prudent person to believe a suspect committed or was committing a crime.

Probable cause is less than proof beyond a reasonable doubt. It is, however, more than a mere hunch. First, probable cause is a well-grounded suspicion. Second, this belief must concern whether an offense is taking place or has taken place. Finally, it must relate directly to the suspect as a party to the offense.

The totality of circumstances control the outcome. Therefore, courts examine the facts and inferences. Judges determine whether a person of reasonable caution would believe that an offense was, is, or will be committed. Courts apply common sense and include reasonable inferences in the analysis.

Experienced New Jersey Criminal Defense Lawyer Michael Smolensky, Esquire, knows how to protect his clients. Mr. Smolensky can provide consultations on all cases regarding searches, seizures, and arrests. Call Now—(856) 812-0321.

Reasonable Suspicion

The spectacle-pedlar
[Public domain],
via Wikimedia Commons
The Fourth Amendment protects the individual from arbitrary police intrusion. The law prohibits the police from trampling unjustifiably on freedom of movement. Instead, police may do so only under suspicious circumstances.

The stop must be based on a particularized suspicion. This means the cops must provide observations seen, heard, smelled, or otherwise detected with their senses, that the person has been or is about to engage in a crime.

Courts consider the totality of the circumstances to determine whether they provided the requisite reasonable suspicion. The policy at play behind this is a balance between effective law enforcement and the individual’s right to move freely.

The facts determine the outcome, and courts apply common sense in these evaluations. An officer's knowledge and experience may be given weight, as well as rational inferences from the officer's perspective.

Experienced New Jersey Criminal Defense Lawyer Michael Smolensky, Esquire, knows how to protect his clients. Mr. Smolensky can provide consultations on all cases regarding searches, seizures, and arrests. Call Now—(856) 812-0321.

Field Inquiry

INTRODUCTION Police-citizen enounters fall into three categories. Each tier requires the State to establish a higher evidential threshold. This entry will describe the least intrusive and therefore the least burdensome encounter to justify.

With limited exceptions, a field inquiry may be conducted without grounds for suspicion. A field inquiry is the least intrusive encounter, and occurs when a cop approaches an individual and asks some questions. The person, however, need not answer any questions. Indeed, he may decline to listen to the questions and go on his way.

Cops train to prevent and detect crime. Events unnoticed by a layman ofttimes indicate to the trained eye that something amiss might be taking place or is about to happen. The cops would be derelict in their duties if they did not investigate such events. By that same token, judges are not required to exhibit naiveté from which ordinary citizens are free. Pennsylvania v. Dunlap, 555 U.S. ____ (2008) (Roberts, J., dissenting).

Essentially, cops may perform a field inquiry without reason to believe a crime already did, currently is, or soon will take place. But a cop who wants to investigate further will require greater justification. The principal issue is whether the police deny the individual the freedom to move.

Experienced New Jersey Criminal Defense Lawyer Michael Smolensky, Esquire, knows how to protect his clients. Mr. Smolensky can provide consultations on all cases regarding searches, seizures, and arrests. Call Now—(856) 812-0321.