Thursday, August 25, 2011

New Jersey Supreme Court Makes Ground Breaking Decision Regarding Eye Witness Identification Testimony.

On August 24, 2011, two cases that will have national implications, the New Jersey Supreme Court in the cases, State v. Larry R. Henderson, and State v. Cecelia X. Chen, held that eyewitness identification is inherently unreliable, and the court issued sweeping reforms to protect defendants from wrongful convictions.

Prominent legal scholars and law professors have held that the New Jersey Supreme Court is the most prominent and trailblazing State Supreme Court in the United States in the area of criminal law and procedure, and these two cases again confirm that fact according to the New York Times. (Headline Article, August 25, 2011)  More than seventy-five percent of the convictions overturned by the Innocence Project by DNA evidence involved erroneous eyewitness identification.

Because of the strong possibility of mistaken identification the Supreme Court has ordered that the Committee on Model Jury Charges for New Jersey modify the existing charges to educate jurors that factors such as, stress on the eyewitness, distance and lighting, memory decay, speed of identification, witness characteristics, length of interaction, the presence of visible weapons, cross-racial identification, the eyewitnesses interaction with non-State actors, or interaction with State actor, among other things can seriously effect whether the eyewitness is making an accurate identification.

As the Supreme Court wrote, "That evidence offers convincing proof that the current test for evaluating the trustworthiness of eyewitness identification should be revised ... the record proves that the possibility of mistaken identification is real.  Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country."

The court in its 134 page decision also rejects the United States Supreme Court formal for eyewitness identification under the seminal federal case Manson v. Brathwaite, 432 U.S. 98 (1977), and affords New Jersey criminal defendants greater protection.  Again, this is not the first time that our State court has given greater protection to its citizens under New Jersey law.

Because the case only applies to future cases, those which are tried 30 days after the revised model jury charges are approved by the Supreme Court it is essential that any pending trials in which eyewitness identification is a key issue, that those trials be stayed.  This criminal defense attorney would argue that the new jury instructions are of such importance that any trial that went forward without these new instructions would be a denial of the defendant’s Fourteenth Amendment to procedural due process and would amount to ineffective assistance of counsel.

Thank your New Jersey Supreme Court for again showing the rest nation the way in the protecting the rights of the accused, and seeing to it that a defendant has a fair and impartial trial.

Law Office of Vincent J. Sanzone, Jr.

Elizabeth, N.J.
Dated: August 25, 2011

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Monday, August 8, 2011

How to Win Your Criminal Case; Use of Social Networking Sites.

In one of my recent cases a young (pusher-addict) defendant was charged with distribution of heroin to his friend who overdosed and died.  The charge a first degree strict liability drug induced death offense  carried a sentence of 10 to 20 years with an 85% period of parole ineligibility.  In that case the Somerset County Prosecutor’s Office was quick to copy a photograph from the defendant’s public Facebook page, which they quickly disseminated to all the major New Jersey newspapers in the State along with a press release on the day of his arrest.  The photograph was a picture of the defendant taken two years before with his shirt off and laughing.  The picture was unfair prejudicial and extremely damaging, and the prosecutor’s office knew exactly what they were doing by posting this photo.  The photograph of the defendant had absolutely no connection to the case.  The purpose for releasing the photograph was to prejudice the defendant and taint the jury pool with the subtle and unfair essage that the defendant was living the high-life and laughing about it, while selling drugs.  Nothing was further from the truth.

In recent years law enforcement has used social media sites to obtain inculpatory evidence against defendant using these sites.  However, not as well known, or used by many defense attorneys is the use of these sites to benefit the defendant.  For the defense social media sites can be a treasure trove of exculpatory evidence, impeachment material, and other helpful information for the defense.

All of us have heard incidences reported in the media in which rogue cops have posted information on their social media sites as "rogue cop", or "I pick up garbage for a living".  These statements of course are impeachment material under Giglio.

In one of my recent cases which resulted in my obtaining a  dismissal of all criminal charges against the defendant my client was able to obtain some very interesting information regarding the officers bias.  In that case a municipal patrolman was called to a nightclub at the bequest of the manager when the defendant complained about the bar bill and the poor quality of the drinks.  When the patrolman arrived he immediately took the side of the manager of establishment and arrested the defendant when she questioned the patrolman obvious bias.  The defendant did absolutely nothing wrong and it was clearly a bogus arrest.  Prior to trial the client, a person with some expertise in computers was able to ascertain and printout some very damaging information regarding the police officer and his connection to the nightclub.  Among other things she obtained proof and printouts that the manager and owner of the nightclub were friends of the officer on Facebook, that the office had one of his personal parties hosted by the nightclub, and that he had listed the nightclub as one of his favorite places.  Needless to say this information would have been very damaging to the officer as to credibility and motive for the arrest if the matter had gone to trial, but because of the officers fourth failure to appear for trial (for obvious reasons that it was a bogus arrest), the matter was favorably resolved in the defendant’s favor with no criminal record.  The officer if honest should have recused himself from the call or at a minimum take undue caution to be fair based on his personal friendship with the manager and owners of the nightclub.

When relevant defense counsel should not hesitate to use its subpoena power to obtain social media information for all of the prosecution’s witnesses for information that exculpates the defendant or can lead to impeachment evidence for the defense.  This information is clearly discoverable under the seminal federal cases Brady and Giglio.  Further, during the pendency of the case defense counsel should monitor all public available social website information to determine whether major charges to the site have occurred which might tend to show that the person is attempting to hide or delete information because of the case.

Lastly, defense counsel should not hesitate to mine social media sites for any public information regarding potential jurors in any given case and any possible biases or prejudices that they might have but fail to disclose to the defense.

Although most jurisdictions have not addressed the issue, defense counsel should be aware of the ethical considerations in not obtaining any personal information from any social media site through misrepresentation.

Law Office of Vincent J. Sanzone, Jr.
Elizabeth, New Jersey, New Jersey Criminal Defense Attorney, How to win your criminal case in New Jersey

Dated: August 8, 2011

How to Win Your Criminal Case: Jury Instructions.

One of the most overlooked areas in trying a criminal case is the jury instructions that the jurors will receive by the trial judge at the end of the case.

Most appellate reversals of criminal convictions are the result of jury instructions that deviate from the model charges or when the trial court misstates or reads to the jury instructions which are inaccurate.

The focus of this article however is not on errors by the trial judge but more importantly on the need by the defense attorney to insure that the jury understands the law and how it applies or does not apply to the facts of the case before the jury.  Only when the jury understands the law can they make an informed decision regarding the innocence of the accused resulting hopefully in a not guilty verdict.

As Professor Peter Tiersma recently observed, “There has been a substantial amount of research during the past decade documenting that jurors do not understand traditional instructions very well, especially when more difficult concepts come into play.”

To begin with most jurors do not understand the concept of reasonable doubt.  Research in this area by criminologists Lieberman and Sales, in their treatise, "What Social Science Teaches Us About Jury Instruction Process", estimates that 75% of jurors do not even understand that if they find reasonable doubt that they must acquit.

An additional problem and far more greater danger to the defendant is the danger that the jury will hear through other crime evidence, (Rule 404b evidence) that the defendant has a prior record.  In these cases the tendency is that the jury will take confront in convicting the defendant, even in a close case with reasonable doubt, if they believe that the defendant is a bad person, and should be punished.

Therefore with that in mind it is essential that defense counsel use every possible legal means to convey the jury instructions in language that the jury will understand.

First, in regards to reasonable doubt it is important that the defense counsel in concrete terms through stories, analogies, metaphors and parables, convey to the jury what reasonable doubt is and is not.  One helpful tool is a chart, which I use (if allowed by the trial judge), which explains different concepts of reasonable doubt.

Second, it is important in a circumstantial case that the jury is told a story in which circumstantial evidence wrongly accused someone of a crime or wrong that they did not commit.  I use the story of the poor farm boy who was afraid of getting beaten by his father for eating the blueberry pie before supper, covered his little dog (his only possession which he loved dearly) with blueberry pie thinking that the father would blame the dog.  The father, poor, overworked and uneducated beat his son’s dog to death in front of his son.  This is a powerful story which conveys how circumstantial evidence without more can lead to the wrong conclusion.

Third, it is most important that the jury instructions are explained to the jury to explain in plain language how the law can not sustain a conviction based on the facts proven or not proven in the case.  This is extremely important, and the judge will give defense counsel greater leeway, with crimes in which there is little or no case law, or there are no specific model charges for the offense in which the defendant is charged.  In the case in which there are no model charges, it is essential that defense counsel begin to craft a charge at the beginning of the case.

In conclusion as with all criminal cases it is essential that defense counsel does not overlook one of the most important part of a criminal jury trial, that being the jury instructions and defense counsel making the jury understand how the charges can only lead to one honest and fair conclusion, that being, a not guilty verdict as to all charges.  It is irresponsible to expect the jurors to figure out for themselves their most important function.

Law Office of Vincent J. Sanzone, Jr.
Elizabeth, New Jersey, New Jersey Criminal Defense Attorney; How to win your criminal jury trial, NJ best criminal defense attorney
Dated: August 8, 2011


Pleading to a Megan’s Law Offenses and Community-Supervision for Life Conditions.

Most defendants do not learn of the draconian conditions and requirements of the community-supervision for life (or life time parole) which are mandatory for all defendants convicted of a sexual offense in New Jersey, pursuant to N.J.S.A. 2C:43-6.4.  Under community-supervision the defendant may be required to wear an ankle bracelet for 24/7 monitoring by the defendant's parole officer. It also includes, among other things, lifetime monthly meetings with the parole officer, prohibiting travel outside New Jersey, residency and employment restrictions, unannounced home visits and inspections, curfews and urine screenings for non-prescription drugs.  These are the basic restrictions and can be even more oppressive depending on the individual parole officer and his or hers individual predilections.

That is why it is extremely important that all defendants subject to community-supervision for life be advised by defense counsel exactly what “community-supervision” for life means. 

In fact in a recent case State v. Villanueva the appellate division remanded a PCR appeal back to the trial court to determine through an evidentiary hearing whether defense counsel was ineffective for not advising Mr. Villanueva of the community supervision for life requirements.

The appellate division citing State v. Jamgochian, 363 N.J. 220 (App. Div. 2003) which held that a prima facie case of ineffective assistance of counsel was made when defense counsel failed to advise the defendant of his travel restrictions for life.

Mr. Villanueva plead guilty to one third-degree count of child endangerment.  In that case Mr. Villanueva admitted that as the school basketball coach he required that his 12-14 year old players be weighed in the nude.  Mr. Villanueva’s defense was that he did not believe that his conduct was sexual in nature.  In that case Mr. Villanueva alleged in his post conviction relief petition that he did not understand the gravity of the lifetime supervision program until he was notified the 22 restrictive conditions by his parole officer. 

In conclusion every defendant charged with a sexual offense must understand that pleading to such offenses with a sentence to probation does not end the defendant’s nightmare, and that with such draconian conditions of life time community supervision for life, an innocent defendant must seriously consider going to trial, even with the threat of imprisonment hanging over his or her head.

Law Office of Vincent J. Sanzone, Jr., Esq.
New Jersey Criminal Defense Lawyer 
Elizabeth, New Jersey 
Dated: August 8, 2011