The Filing of a New Trial Motion Based On Newly Discovered Evidence

Of course not all jury trials result in a not guilty verdict.  In fact, depending on the county in which the trial takes place, not guilty verdict as to all counts are rare.  In federal court the chances of an acquittal are even more rare.  Stating this truth is not meant to dissuade a defendant who decides to exercise his constitutional right under the Sixth Amendment to the United States Constitution.  Even after a guilty verdict the sentence imposed by the judge at the time of sentencing might even be lower than the plea offer of the prosecutor.  This is often the case in counties in which there is an extremely high conviction rate, and the county prosecutors believe that they run the courtrooms with their draconian plea offers.  Unfortunately, in some cases they actual do.  In those cases there is less downside risk of going to trial and taking your chances in having the jury make the call as to whether the State or Government has proved its case beyond a reasonable doubt.  In a recent case in Ocean County the defendant actually received four years less than the plea offer by the Ocean County Prosecutor’s Office after losing at trial.

Another avenue for the defendant is the filing a new trial motion after the verdict based on newly discovered evidence.  Although this motion is rarely granted, the defendant and his/or her attorney must be cognizant of discovering, if possible, any new evidence, if presented to the jury during trial, would have likely altered the verdict if known to defense counsel prior to trial.

Today, AttorneySanzone was granted a new trial motion in the Superior Court of New Jersey, Gloucester County.  In that case, defendant’s prior attorney was unaware that an essential witness withheld important evidence from the parties.  After reviewing the transcripts for appeal, it became clear that this witness appeared to know more than she had disclosed.  After a tape recording of her conversation with the defendant’s wife it was clear that her testimony if known to the jury, and if believed, would have acquitted the defendant since her testimony was convincing evidence that the alleged victim and lied, and had a strong motive to do so in this case.

A new trial motion based on newly discovered evidence as no statutory time limits and can be filed at anytime.

If you are charged with a serious crime you owe it to yourself and family to retain the legal services of an experienced NJ criminal defense lawyer.

Law Office of Vincent J. Sanzone, Jr.

P.O. Box 261

277 North Broad Street

Elizabeth, N.J. 07207

Office No. (908) 354-7006

Cell No.   (201) 240-5716

CriminalDefenseNJ.com

Dated: December 24, 2012

Best N.J. Criminal Defense Techniques: How to Win Your Criminal Case At Trial.

It is often asked of me, how does a criminal defense attorney win his or her criminal trial?  The answer to that question is obviously not easy to answer, because many factors and variables contribute to a not guilty verdict.  Unlike a sporting event, the best team does not always win.  In fact a criminal defense attorney can do everything legally possible and still lose the case.

However, having practiced criminal defense for 23 years I have come to learn that one of the most important factor in wining your case is preparation.  In reality criminal jury trials are not won in the courtroom, but rather, in the office.  What I mean by that is only by a thorough and complete preparation of the case prior to trial does one have a chance of wining his or her case.  This of course is no easy task because it means that the criminal defense attorney must devote countless hours in learning the discovery, the law, and the theme of your case.  Most importantly, one must devote countless hours thinking about the case and how best to defend his or her client within the legal and ethical confines of the law.

The second most important aspect of wining your criminal case is selection of the jury, and the aspect in which the criminal defense attorney has the least control is the selection of the jury.  It matters little at the end of the day, and it matters little in how much you have prepared your case, when you have selected a jury which is closed minded, prejudice or biased against your client.  If a jury is not open to the concept of reasonable doubt and the high standard which must be met by the government before they can find someone guilty, it matters little and there will be guilty verdict.  Unfortunately, although the selection process in the Superior Court of New Jersey is very arduous process often jurors that are biased and prejudiced do slip-by and are empanelled into the jury.  Sometimes potential jurors in the voir dire process will disguise their true feelings.  From my experience I am always cautious of a potential juror who seems to anxious to sit, and seems to willing to say the “right thing.”  These types of responses usually come from someone that has an agenda and wants to sit for a “reason.”  More often than not it is not to acquit your client.  Although of course the reverse can be true.  That is why it is important that someone looking to hire the best New Jersey criminal defense attorney for his or her case must choose an experienced criminal defense attorney who has tried enough cases to get the feel as which juror would be right for his or her case.  This skill only comes about with experience in picking many juries and listening to hundreds of potential jurors telling their stories and why they believe they would be fair and impartial juror and by carefully gauging their responses.  

I hope you have found my insights to helpful and of course, I wish you good luck, and that justice be done with your not guilty verdict.

Law Office of Vincent J. Sanzone, Jr., Esq.

CriminalDefenseNJ.com

P.O. Box 261

277 North Broad Street

Elizabeth, New Jersey 07207

Office:  (908) 354-7006

Cell:    (201) 240-5716

The Increasing Power of State and Federal Prosecutors.

The balance of powers between our legislative, executive and judicial branches of government is increasingly shifting to the power of the executive branch of government.  This is increasingly evident in the power of the executive branch when it comes to criminal law.  Increasing our legislative elective officials who continue to pander to themselves in the hope of getting re-elected continue to pass criminal laws which continue to give more and more power to prosecutorial authorities, which is part of the executive branch.

In New Jersey for example, the county prosecutors, through the largess of our elected officials, wheel tremendous amount of power in almost every aspect of criminal prosecution and procedure. 

Because of these powers the judicial branch of government, the role of our judges in the system is increasingly abrogated.  Accordingly, to a large extend the hands of the judges to dispense justice is thwarted by the decisions of the prosecutors.  Many legal scholars agree that under the current system prosecutors have more power than the judges themselves.

For example in New Jersey the decision to grant or deny a defendant’s admission into the pre-trial intervention program exclusively rests with the prosecutor.  Under New Jersey State law unless the defendant can prove that the prosecutor abused its discretion in denying admission (and almost impossible burden), the judge hearing an appeal for denial of admission cannot overturn the prosecutors decision.

Even more frightening is the power of the prosecution to extract guilty pleas from defendants who for many reasons should be having their cases decided by an impartial jury.  However, because of legislatures desire to pass more and more get tough on crime laws, such as mandatory sentencing, extended terms, eighty-five percent period of parole disqualification, and other harsher penalties, many defendants have no choice but to plead to a crime which they have not committed, because the risk of losing a trial is just to great. The implicate warning to defendants; if you dare to go to trial and lose, you will pay the consequences.

In New Jersey like most States this is referred to as the “trial penalty”, an unspoken word in the criminal justice system which defendants understand all to frequently.  If you have the nerve to go to trial and lose you will receive the trial penalty which is the high costs of going to trial and lose.

It is no secret that legislatures starved of money to fuel the criminal justice costs are quick to make it easy for prosecutors to obtain convictions without the costs of having defendants to go to trial. In affect it matters little if the person charged with a crime is innocent or guilty.  What matters instead and is often the most controlling and deciding factor; does the defendant have the courage to spend many years in prison to prove their innocence, when they can receive a probationary term or flat sentence of a few years?

In many cases because of mandatory extended term sentences an innocent defendant will spend many decades or life imprisonment for relatively minor offenses, or more serious crimes, if they opt to go to trial, as opposed to taking a plea of a few years.

These mandatory sentences are universally imposed on defendants charged with offenses involving handguns, drugs, repeat offenders, and intent of distribution near a school zone, park, or public housing complex.

The danger in a democracy which relies upon the balance of powers to check the tyranny from any one branch of government is that increasingly more and more power is given to prosecutors which often lead to abuse, unfairness, and arbitrary decisions.

In New Jersey jurors are told during the trial that they are to decide guilt or innocence’s, and it is the judge that decides the sentence.  However, in reality that is not true, because in many respects it was the prosecutor and legislative branch that decided the sentence long before the trial even started. Accordingly, in New Jersey jurors should be told of these mandatory minimum sentences that the defendant faces with a verdict of guilty.

Another way that prosecutors unfairly extract pleas in New Jersey is to overcharge the defendant and to indict him or her on charges which simply do not fit the facts of the crime, in other words over charge the defendant with more serious crimes. For example charging a defendant with intent to distribute a controlled dangerous substance when the defendant is only carrying a few grams of the substances.

Because of this imbalance in the criminal justice system in New Jersey fever and fever defendants risk the uncertainty of a trial.  New Jersey like most states do not publish the percentage of felony cases that go to trial but according to nine States that publish such information only one in forty cases go to trial.  In the federal system it is even less only three percent of the criminally accused decided to go to trial.  The United States Bureau of Justice Statistics found that between the years 1986 to 2006 the ratio between pleas and trials doubled.  This is no surprise because last year there was only one acquittal for every 212 guilty pleas and trials in federal court.  Thirty years ago there was one acquittal for every 22 cases.  There is no doubt that with those numbers that many innocent federal defendants are opting for a plea.

Because of these abuses prosecutors are quick to believe the police officers who initially investigate and bring and make the arrests.  Because of this power, that is, everything they say will be believed by the prosecutor, errant law enforcement officers are more likely to be involved in arrests of innocent people or be engaged in willful police misconduct and abuse.

It is time that our legislative elected officials stop pandering to themselves and their reelection hopes and start reining in the power of the executive branch and allowing the courts and judges to dispense justice. This unfair imbalance of power is also taking a toll on many criminal defense attorneys, who must languish and suffer with their clients over the decision as to whether or not to take a plea from a defendant which the attorney might seriously and honestly believe is innocent, but cannot afford the risks of going to trial.

Law Office of Vincent J. Sanzone, Jr.

Dated: October 5, 2011

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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

CriminalDefenseNJ.com

Dated: August 8, 2011