Challenging Forensic Identification Evidence At Trial: Best Practices to Win Your Criminal Trial and Obtain A Not Guilty Verdict.

Part I  The Use of Bullet Lead Analysis (“CBLA”) Evidence

The claims that forensic expert witnesses make at trial for the prosecution often cannot stand close scrutiny and competent cross-examination by defense counsel.  CriminalDefenseNJ.com

There is no doubt that this type of testimony is powerfully persuasive to the jury hearing it especially in the age of television shows such as CSI.  Unfortunately, this testimony is not always reliable and such testimony will often lead to a guilty verdict.

There is much evidence to support the proposition that such evidence is often under-researched and often oversold.  The truth is forensic evidence is not infallible.

One such troubling example of junk science forensic evidence was the FBI use of lead alloy evidence or comparative bullet lead analysis (“CBLA”).  For forty-five years FBI forensic bullet alloy experts testified throughout the country claiming that they could match the lead in the bullet or fragments recovered from the defendants unused box of bullets found in his possession.  On September 1, 2005 the FBI admitted that the science was not reliable and discontinued this testimony.  How many innocent people were convicted on such testimony no one will ever know, and I do not thing anybody cares to find out. Like the fallacious CBLA forensic evidence, what other fallacious forensic evidence is still be peddled as the magic bullet for the prosecution?

In addition to junk science forensic testimony, there is also much historical evidence that prosecution expert forensic witnesses intentionally falsified the truth. In some cases they have been caught fudging numbers, exaggerating the truth, or outright lying. 

One continuing trouble problem is the use of the so-called intent to distribute experts, who testify in simple possession cases that the defendant possessed those drugs with the intent to distribute.  What crystal balls do these so called experts have to make these outlandish statements?  Troubling, however, that some juries will accept such testimony as gospel truth and convict on that junk testimony

Prepared for the People as a Public Service by the Law Office of Vincent J. Sanzone, Jr., Esq.

277 North Broad Street

P.O. Box 261

Elizabeth, N.J. 07207

Telephone: (908) 354-7005

YourCivilRights@gmail.com

Dated: December 14, 2013

Tips Strategy and Best Practices in Trying Your Criminal Case In New Jersey

Prepared as a Public Service by the Law Office of Vincent J. Sanzone, Jr.

The first thing every New Jersey criminal defense attorney must think about before he presents his case to the Jury is how will he present the defendant’s theory of the case.  This is not a simple question and requires must thought and preparation.

The first thing that the criminal defense attorney must do is known each and every fact of the case.  Also, the attorney must spend a considerable amount of time with the client to understand facts which are not revealed in discovery and only the client knows about.  Remember, the client does not know which facts are important, therefore, you must stress to the client that every fact know to the client, good of bad, must be revealed to the attorney.

It is well settled both in federal and New Jersey state law that the defendant has the absolute right to present his side of the story to the jury, or otherwise known as his theory of the case.  In Washington v. Texas, 388 U.S. 14 (1967), our United States Supreme Court held that under the Sixth Amendment to the United States constitution, the defendant has the sixth amendment right to compulsory process to have witnesses testify on the defendant’s behalf.  See also, Davis v. Alaska, 415 U.S. 308 (1974). Further, the defense has the right to present a meaningful defense. Holmes v. S.C., 126 S.CT. 1727 (2006)  The right of the defense to present its theory of the case is so strong, even to the point of allowing the defense the opportunity to present hearsay, i.e., declaration against interests, “I killed the cop”, Chambers v. Mississippi, 410 U.S. 284 (1973)

The Defendant is denied a fair trial if he cannot present his theory of the case.

In essence there are basically three types of defenses.

1.   She did not do it.

2.   She did it but government cannot prove it.

3.   She did something but what she did is not a crime.

In assessing the Government’s or State case the question must be asked.  What is the Government Ignoring?

Points to Remember:

1.   What has the government neglected?

2.   What has the government ignored?

3.   What has the government refuse to recognize?

4.   Which are also known as negative evidence and an acceptable means of disproving a criminal case?

5.   Negative evidence is important.

Accordingly the defendant has the absolute right to present our defense, and the Government cannot prevent or tell us how to proceed.  Cast shadows on innocence’s. 

6.   If the Government attempts to prove intent by circumstantial evidence, why isn’t the defense entitled to show that circumstantial evidence which does not show intent?

7.   Absence of evidence when it should be there.

8.   Deconstructing evidence what the government wants to show-prove.

9.   What are they not saying?

10.  What are they ignoring?

11.  What is lacking?

12.  Idea of deconstruction. 

13.  Put it into proper form for the jury to understand.

14.  Use demonstrative evidence to show the negative evidence.

15.  What about the government’s theory doesn’t make sense?

16.  Have they used any resources to find the truth?

17.  To find this negative evidence?

18.  Evidence that they don’t have, which would prove that he is guilty of the crime?

Law Office of Vincent J. Sanzone, Jr.

277 North Broad Street

P.O. Box 261

Elizabeth (Union County), New Jersey 07207

Tel: (908) 354-7006

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The Need to Keep Quiet When Questioned By Police

Although I have written previous blogs on the need for defendants to keep quiet when being questioned by police, I do so again.

The New Jersey Supreme Court in a recent decision affirms that scared Fifth Amendment right when it scolded a municipal court judge’s decision who took into account the defendant’s silence in its decision finding the defendant guilty.

In State v. Stas, Mr. Stas and his friend (Mr. Putz), were involved in a motor vehicle accident in which Mr. Stas’ friend claimed he was the driver.  While Putz was claiming he was the driver of the vehicle, Stas said nothing.  After failing field sobriety tests, Putz was arrested for DWI, and Stas was charged and arrested for allowing an intoxicated driver (Putz), drive a vehicle in which he had custody and control over in violation of N.J.S.A. 39:4-50(a).

A joint trial was held in which both Stas and Putz were found guilty: surprised?  However, at trial, Stas said that he was the driver of the vehicle and not Putz, and Putz stated that he had lied to the police and was not the driver.

The municipal court judge found that Stas was not credible because he had remained silent while Putz lied to the police, and said nothing.  Both the law division judge in the trial de novo, and appellate court on appeal, held that the municipal court committed no plain error in using Stas’ silence against him.

The Supreme Court reversed and held that every defendant-suspect has the absolutely right to remain silent and that silence cannot be used as substantive evidence against him or her in determining quilt.  The Supreme Court reversed the conviction and ordered a new trial.

This case is another good example of the need for a suspect in a criminal or traffic investigation to remain silent when being questioned by police.  It is not even necessary for the defendant to state that he wants to speak to a lawyer or has consulted with a lawyer; it is none of the cops business.  The suspect should simply remain silent and says that he has nothing to say at this time.  As fisherman say, “A fish doesn’t get caught until it opens its mouth.” 

Law Office of Vincent J. Sanzone, Jr.

October 2, 2012

CriminalDefenseNJ.com

P.O. Box 261

277 North Broad Street

Elizabeth, New Jersey 07207

Office Phone No. (908) 354-7006

Cell Phone No.   (201) 240-5716

YourCivilRights@gmail.com

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How to Win Your Criminal Case; and What Makes the Best Criminal Defense Attorney.

It is often asked of me by prospective clients and young attorneys what is the secret of your success and how do you obtain such a large number of cases being dismissed, extremely favorable plea agreements, and jury acquittals for the cases that ultimately go to trial.

     Over twenty-five years ago while attending a criminal law seminar while still in law school I was privileged in listening to an experienced criminal defense attorney whose words I have never forgotten.  His key to success was simple and direct, that criminal cases are not won in the court room but in the office.  To this day my philosophy with ever criminal case is that pretrial preparation is the key to success.  You win criminal cases by doing extensive criminal trial preparation with every case.  That includes the relentless request from the prosecutor for every piece of discovery which may be relevant to, or lead to relevant discovery in the case.  If the prosecutor refuses to turn over the evidence use your subpoena power, OPRA request, or file a motion to compel.  Normally, when important information or evidence is not turned over to the defense attorney during the initial exchange of discovery, it is because the prosecutor simply and honestly does not have the discovery in his or her file.  However, the search should not end there.  The question that a good criminal defense attorney must ask, who is concerned in winning his case, is why did the police fail to turn-over to the prosecutor evidence which is clearly relevant to the guilt of innocence of the criminal defendant?  The answer is simple but not obvious to the inexperienced criminal defense attorney.  When a piece of evidence is not turned over, and it appears that the police have overlooked it, the majority of the times it was not innocently overlooked, but rather, not obtained, not preserved, or not turned over, because that particular evidence DID NOT FIT INTO THEIR THEORY OF THE CASE.  Stated differently, the evidence that they conveniently over-looked, helps your client’s defense and is fodder for reasonable doubt, or in some cases proves that the defendant is completely innocent.

Therefore, it is essential that an extensive and complete investigation of the file and evidence be reviewed by the criminal defense attorney, and to begin with the goal and mind-set, not only what the evidence that was furnished by the prosecution says, but what it doesn’t say, and left out, and why was it left out?

The best criminal defense attorney should with ever case than begin to decide what pretrial motions need to be filed.  Remember, the best criminal defense attorney does not stop with the typical motions, such as motion to suppress, but rather, he must be as creative as possible, to think outside the box.  Only than will the attorney be able to obtain a wealth of information which will ultimately lead to a complete dismissal of all charges, very favorable plea agreement, or acquittal at trial.  Remember, with all cases the first opportunity to win your case is before you even step foot in the court room with your client. 

In the final analysis, fancy words or dramatics, begging with the prosecutor, judge or jury will benefit your client little if you are not prepared to do the hard and tedious work pretrial.

Sanzone Firm

Law Office of Vincent J. Sanzone, Jr.

P.O. Box 261

277 North Broad Street

Elizabeth, N.J. 07207

(908) 354-7006

YourCivilRights@gmail.com

CriminalDefenseNJ.com

Dated: December 14, 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. http://www.innocenceproject.org.

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.

CriminalDefenseNJ.com

Elizabeth, N.J.

Dated: August 25, 2011

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Excerpts of Criminal Jury Summations by New Jersey Attorney Vincent J. Sanzone, Jr.

Excerpts of criminal jury summations in State v. Ngyuen, Morris County, N.J., by attorney Vincent J. Sanzone, Jr. The actual summations lasted 2 1/2 hours. The Defendant was found not guilty of all second degree charges, and the defendant did not spend one day in State Prison. The case tried by the the Office of the New Jersey Attorney General's Office Organized Crime Division. The State offer before trial was a five year state prison sentence.  Watch at https://www.youtube.com/watch?v=OdTXwkxFsZE

Law Office of Vincent J. Sanzone, Jr.

A New Jersey Criminal Defense Attorney, Elizabeth, New Jersey (908) 354-7006

CriminalDefenseNJ.com