Author Archives: TCLAW202
Mitigation is sometimes the best defense
You can only play the cards you are dealt and as a criminal defense attorney, some of your clients will in fact be guilty. Of course, the State has to have the evidence to prove that. It is only when your client is in fact guilty and the State has overwhelming evidence that makes a trial impossible does the primary defense shift to 100% mitigation. While top notch defense attorneys want to win every case, sometimes scoring an amazing plea bargain is the next best thing given the circumstances. What separates the great defense attorneys from the good ones is how they handle the mitigation.
There is no one way to work on mitigation evidence; like anything else, it starts with the facts of the case. However, mitigation evidence has to be developed. You cannot just ask nicely for a good plea. You have to explain why you should get it. The mitigation evidence should focus on why the crime happened and why it won’t happen again. When it comes to sex crimes cases, a psychological evaluation with a risk assessment aspect is very important. However, this should be followed up with treatment. Contrary to popular opinion, not all sex offenders are monsters in the sense that they are actively plotting to harm children. Instead, they often have some serious mental health issues and may have been abused themselves.
One example is the defendants charged with Internet child luring. Most of my clients reported severe depression and other mental health issues. Most also had no prior record or accusations. Clearly, something caused them to engage in this offense. With these cases, thought should be given to distinguishing between using a computer to engage with a purported child versus doing it in real life and how the client’s mental health might have blurred their judgment. If the client has a prior history of mental health issues, this could certainly help. However, just because the client does not have a history, does not mean that they do not suffer from any problems. Either way, an updated evaluation needs to be performed to see how the mental health issues helped lead to this conduct.
The age of the victim or purported victim is also important as is the age of the defendant. A 22 year old looking to have sex with a 14 year old may be looked at more favorably than a 44 year old. This fact needs to be emphasized. Again, an evaluation will help determine if the client is a pedophile, hebephile (someone into older children) or if the person is merely an opportunist who is not necessarily obsessed with children but will have sex with them if given the chance.
Regardless of the client’s personal situation, the prosecutor needs to feel comfortable that the client has identified their problem and is seeking treatment. This will seriously help recidivism which is one of the most important issues for the State.
The planning of a meeting is enough for an Internet Luring case in New Jersey (attempted sexual assault)
Sometimes, men will talk to an undercover detective posing as a child and plan a meeting. However, the defendant will sometimes get cold feet and thus not show up. At this point, the defendant may think that he has done nothing wrong and if arrested, will continue to plead this defense. The Appellate Division dealt with this very issue in State v. Davis, 390 N.J. Super 573 (App Div.) cert denied 192 N.J. 599 (2007). In that case, the court held that the very planning of the meeting was a substantial step and thus, the crime was committed already at that point.
Of course, this doesn’t mean that there aren’t other defenses available such as entrapment, mistake and identity. Furthermore, even in cases where the defendant is clearly guilty and there are no defenses present, we have been very successful in keeping our clients out of prison. If you are charged with attempted sexual assault in New Jersey, call us today.
Having a client evaluated for a risk assessment in a New Jersey sex crimes case
One of the most difficult decisions for a defense attorney to make at the early stages of a case is whether or not the defendant should submit to a risk assessment. A risk assessment can help the defendant get out on bail and obtain a better plea agreement. However, some experts will not perform a risk assessment on a defendant that denies the allegations against him. A psychological evaluation is not to determine if something occurred. It is simply to determine if the defendant is at risk of committing a future offense and therefore how he will do on bail, what treatment is recommended and if he is repetitive and compulsive.
Clearly, if the defendant admits to the accusations, this analysis is much easier. However, some defendants are very reluctant to admit guilt, especially in the beginning of the case. Of course, some clients are actually innocent! Thus, the long term strategy needs to be discussed with the client and/or the client’s family to determine where this case is going. Are we looking to get a good plea or are we looking to go to trial. An early evaluation can lead to early treatment and thus, a better plea bargain down the road. If the defendant maintains his innocence, he has be be prepared both emotionally and financially to possibly go to trial. Once charged, it is rare (but not impossible) for these cases not to end in either a plea or a trial.
Megan’s Law Tier Hearings in New Jersey
Once a person is placed on Megan’s Law, there needs to be a tier hearing. The tier that they are on impact the level of community notification. The goal of the defendant is to be on the lowest tier possible. In order to determine the tier level, the prosecutor will use the Registrant Risk Assessment Scale or RRAS for adult or the Juvenile Risk Assessment Scale or JRAS for juveniles. After going through each box on the scale, the score is totaled up and depending on where the person falls, it will determine the tier.
There are two ways to attack the proposed tier at the tier hearing. The first is to argue that the State scored the defendant wrong by not applying one factor or another appropriately or because a fact relied upon is disputed. Of course, this attack only has a chance for success if it would actually bring the score down a tier. Shaving a few points but keeping the defendant in the same tier as proposed by the State is hardly a win.
The other way to attack the proposed tier is to argue that the RRAS or JRAS does not apply to the defendant for one reason or another. Oddly enough, experts in the field have argued that these models are outdated and that new scales may be a better predictor of recidivism and therefore, impact the tiering of the defendant. This requires the defendant to work with an expert in this field which of course, costs money for the defendant. As a result, tier hearings can be a little costly and thus out of reach for some defendants. However, if the defendant does have the resources available, it may be possible to defeat the State’s motion for a higher tier.
Dealing with Other Crimes Evidence 404(b) in New Jersey Sex Crimes Cases
Nothing strikes fear in the hearts defense attorneys like a case involving both 803(c)(27) issues as well as 404(b) issues. They are a deadly combination and therefore, very difficult to overcome. Of course, the primary defense is to keep them out of the trial all together. Again, it is the skill used during these pre-trial motions that sets the experienced criminal defense attorneys from the pretenders. Its also the reason why these cases are more expensive than almost all other cases.
404(b) evidence otherwise known as other crimes evidence is just that, evidence of some other crime. While it cannot be used to prove that the defendant is more likely to be guilty because he did something bad at another time, that is the essential impact it has on the jury. Whether this evidence comes in or not depends on a variety of factors including who the judge is and what the defense is. If the defense is consent, then it will be more likely to come in. Of course, if there is 404(b) evidence that resulted in a conviction, the consent defense may be a long shot at best. If the defense is something other than consent, then the analysis will depend on the specific facts of the current allegations and the prior bad acts.
The first step to dealing with these issues is to see if there is even an issue at all. Not all defendants are honest with their attorneys because they don’t want to admit that they are bad or even have the defense attorney think that they could be a bad person. There is a perception that the attorney will not fight as hard for them if they are guilty. Thus, you have to get the defendant to tell you if anything may come up from anyone about any past issues regardless of whether or not they actually happened. You could also advise the State that your client is a first time offender (at least with regard to these issues). Either the prosecutor will agree with you or they will tell you about what their investigation uncovered.
The next issue to deal with is how much of your defense you give up to the State. Of course, pre-trial motions and reciprocal discovery can make keeping your defense under your hat quite difficult. However, there are at least some cases where only cross examination and an artful summation will win the day and thus, you can keep the prosecutor in the dark, at least officially. Most sex crimes prosecutors are quite skilled and thus, can sniff out your defense anyway. While the secret defense strategy may not advisable in most cases, it should at least be a consideration.
If a 404(b) motion is filed, the State must meet the four part test articulated in State v. Cofield, 127 N.J. 328 (1992) which is 1) the evidence is relevant to a material issues, 2) the other crime is similar in kind and reasonably close in time, 3) there is clear and convincing proof of the other crime and 4) the probative value is not outweighed by the apparent prejudice. While the defense should obviously attack all four factors, the key to victors will likely be factors 3 and 4. Factor 3 will require a hearing in which a mini-trial will be conducted. The clear and convincing burden is quite high which is both good and bad. While it may be difficult to get the evidence in, if it does come in, it may be readily believed by the jury because it already withstood a powerful test. At least the defense attorney can order the transcript and prepare accordingly to battle the witness again.
Judges are always concerned with prejudice so factor 4 should be hammered home as well. Of course, if the other crime evidence is very similar to the crime at issue, prejudice may be difficult to show. However, if the other crime evidence is much more serious, then prejudice will be easier. The defense will argue that the defendant will be convicted on the more serious prior act than the less serious current accusation.
Please keep in mind that other crimes or other bad acts is separate and apart from res gestae. In State v. L.P, 338 N.J. Super. 227 (App. Div.) cert. Denied, 170 N.J. 205 (2001), the Appellate Division explained that res gestate evidence relates directly to the crime that is charged rather than separate bad acts of crimes. Nevertheless, the defense should still attack this evidence from every possible angle.
Any 404(b) evidence that is introduced is devastating because it forces the defense to conduct at least two trials at once. Furthermore, it is likewise difficult to establish a trial theme that can encompass both defenses. While each case has its own unique set of facts and therefore, its own defenses there are a couple of considerations when confronting a case with 404(b) evidence. One is to just switch defenses away from the one that the 404(b) evidence is seeking to undermine. This may lead to exclusion of the evidence or it can be argued that it is irrelvant and the State is seeking to tar and feather the defendant because they are desperate for a conviction. Another option is just ignore the 404(b) evidence and focus 100% of the attack on the crime the defendant is charged with. Of course, this is tough because the purpose of the 404(b) evidence is to undermine the defense itself and ignoring evidence is rarely helpful. However, you can maintain credibility with the jury if you don’t attack evidence that is clearly against you but instead, focus your attack elsewhere.
Yet still another option is to formulate a trial theme that covers both crimes. This can be difficult to do but there are scenarios where this is possible. If the primary accuser knew about the prior bad acts, this can be used to show motive for coaching the victim or the victim could be exploiting this for some reason. If the right facts are present, the defense can be the the two victims are involved in a conspiracy to frame the defendant. This requires either a direct link between the two victims, family members, friends, class mates etc or another link such as the same law enforcement officer DYFS worker investigating the case.
No matter what defense theme is chosen, the defense attorney must take the 404(b) evidence into account and be prepared to deal with it one way or another.
Fighting back against and 803(c)(27) motion in New Jersey post-Crawford
As if dealing with a child sex crimes case in New Jersey wasn’t challenging enough, N.J.R.E. 803(c)(27) makes life much more difficult for defense attorneys. Throwing the Constitution out of the window for these narrow class of cases, this rule states that the victim’s out of court statements to others is admissible. Thus, instead of the jury just hearing from the victim, the jury gets to hear from a a parade of witnesses about the alleged abuse. This can include any number of people including family members, medical personnel, teachers, DYFS workers, law enforcement, etc. Having these allegations repeated over and over again is devastating to the defense.
Luckily, there is some measure of sanity in the defense attorney’s best friend – Crawford. Crawford v. Washington changed criminal defense forever. Moving forward, all hearsay that is testimonial in nature is barred. This can have a big impact on an 803(c)(27) analysis. In deciding such a motion, the court will first determine if the statement is trustworthy. If it is, the analysis will then shift to determine if the statement is admissible pursuant to Crawford. The post-Crawford case law is extensive and cannot be reviewed here. However, the analysis should clearly start with whether or not the statement is testimonial and whether the victim will testify to the initial allegations.
Defense attorneys should review State v. Nyhammer, 197 N.J. 383 (2009) to see how not to confront one of these cases. That case involved the introduction of the child victim’s videotaped statement. Oddly enough, the defense did not argue that is was trustworthy. Thus, the first part of this analysis was rather easy. The victim testified but was apparently reluctant to get into the details of the allegations. On cross, the defense asked safe questions apparently scared to engage in vigorous cross of the victim. As a result, the Court held that the defendant was not denied his right to confrontation when he chooses not to cross examine the victim.
Thus, when attacking these issues, the defense attorney should consider each statement separately because the analysis for each one may be different. Unlike the defense in Nyhammer, the trustworthiness of the statement should also be hammered home. After all, if the statement is trustworthy, what is the defense? Next, a Crawford argument should be made as to each statement. Be mindful of cases that the State may use and have something ready to counter them. Also look to other states for guidance to support your arguments. Most importantly, don’t forget to raise these issues again at trial since something may occur that will chance the court’s prior ruling.
Filing a Michaels Motion for a Taint Hearing in New Jersey Child Sex Abuse Cases
Although it has been almost 20 years since the case of Kelly Michaels, State v. Michaels, 136 N.J. 299 (1994) one cannot assume that Michaels issues are a thing of the past. I recently won a case involving Michaels type issues so it is sadly still on going. There are still too many detectives and prosecutors who want nothing more than to convict the defendant. For example, my case involved a child initially indicating that her father never did anything inappropriate to her and then an hour later (after having access to her mother and a DYFS case worker) she gives a story that is 180 degrees different. Even a layperson who has never watched one episode of Law & Order would knows that the first thing you would want to do is find out what happened. But of course, in my case, the question was never asked. The detective was seemingly very happy with this disclosure and not attempt was made to determine if the child was coached. Luckily, the client was never prosecuted and the DYFS case was dismissed on my motion.
Thus, the above case indicates that taint hearings and the defense of coaching should not be limited to just law enforcement personnel. Anyone having access to the child can coach the child. In another case I had, the child victim’s teacher was actually the wife of the investigating officer. The victim made a brief disclosure to her mother who called the police. However, the child was not interviewed until the next day. The officer then went home and discussed the case with his wife. Meanwhile, the child went home and as she indicated, “discussed it a lot” with her mom. The next day, the child spoke to the teacher first and was only then interviewed by the police. At that point, the child had a lengthy conversation with her mother and then the teacher. By the time she had spoken to the police the next day, her conversation was clearly suspect. Thus, defense attorneys need to have a broad scope when they file a Michaels motion because the taint may not always arise from law enforcement sources. This is just another reason why DYFS records are important.
Also keep in mind that the Michaels hearing will usually take place at the same time as the 803(c)(27) hearing. Again, this is one of the primary issues that makes the defense of child sex crime cases so unique. For the less experienced practitioner, these cases may be too difficult. However, the battle hardened lawyer only views them as challenging and what’s the point of being a top notch criminal defense attorney if you don’t enjoy a good challenge?
Motion to disclose DYFS (DCPP) records relating to sex crimes cases in New Jersey
I find these motions to be particularly interesting. While the technical name of the agency is now DCPP, myself along with almost everyone else, still refers to them as DYFS. In general, DYFS records are confidential pursuant to N.J.S.A. 9:6-8.10a(a) and thus, even the State will likely not have any records from DYFS. However, DYFS records can be provided to the Court and then given to the defense pursuant to N.J.S.A. 9:6-8.10a(b)(6). Any motion for these records should be filed with DYFS and the Prosecutor’s Office.
The primary case on this issue is horrible. State v. Cusick, 219 N.J. Super. 452 (App. Div. 1987), cert. Denied, 109 N.J. 54 (1987) held that in that case, the defense could have obtained the same information through other sources and that the information in the records would not have changed the outcome of the trial. While it is difficult to know exactly what records DYFS has without seeing them, in a child sex case there will clearly be disclosures by the child to a number of people in addition to interviews with other people. The child will likely be examined and undergo a psychological evaluation and subsequent counseling. How all of this is not relevant to the defense is beyond me.
Thus, the defense has to be prepared to argue that Cusick does not apply to this case. Instead, it should rely more on State v. L.P. Which ordered disclosure of the DYFS records. 270 N.J. Super. 429 (App. Div. 1994). Of course, in L.P., the defense was seeking evidence that the child recanted and it already had some evidence that this had occurred. Thus, it was far from a fishing expedition. In addition to arguing L.P. the defense needs to hammer home the right of confrontation which has changed dramatically since 1987. Furthermore, the research on coaching after the Kelly Michaels case has also changed the landscape of child sex crimes. Thus, for the Court to just hang its hat on Cusick is wrong but the defense also has to do its part as well.
If at least part of the defense theme relies upon coaching then just about everything DYFS did will be relevant. They are often intertwined with law enforcement and it must be argued that the defense cannot just have access to half the case. The child’s credibility can only be fully tested once all of the information from all sources is considered. What other ways can the defense possibly get access to DYFS case worker interviews, therapist’s notes and reports, psychological evaluations of the victim, etc? If the defendant in the criminal trial is also a defendant in the DYFS case then it must be shown that there is simply no harm in disclosure to a defendant who has already seen the records in the first place. The only one that is in the dark is you the defense attorney.
The other problem with Cusick is that it seems to focus more on admissibility than discovery. Of course, the discovery rules and the case law interpreting same indicates that there is not only a big difference but non-admissable discovery may lead to admissible discovery. Thus, this needs to be hammered home as well. A protective order can be entered to make sure that other than the defense attorney, no one else has access to these records. Thus, what is the real harm here? A number of attorneys in the DYFS case already have access to these records, what harm will one more do? Once the records are released to the defense attorney, the fight over their admissibility can be properly waged.
This same motion made in family court matters seems to be much more liberally granted. Of course, that is likely due to the fact that courts rely upon DYFS reports to make decisions as to custody and parenting time whereas the finder of fact in a criminal case, (the jury) will not be relying upon them.
Discovery of school records in child sex abuse cases in New Jersey
One possible way to attack the credibility of a child victim, especially an older one, is to gain access to school records. However, this presents a number of issues as the State does not have access to the records either. Thus, when filing a motion, the school board must be served in addition to the State. Especially these days, school records include records from many different sources including counslors and/or psychologists which thus involves a number of different issues. However, like any records that are sensitive in nature, the best way for a court to balance everyone’s interests is to have an in camera review of the records.
Of course, the defense should include a detailed analysis of what these records may show, why the defense believes that and how that is relevant to the facts of the case. Not only will this increase the odds of getting some or all of the records, it will allow the court to put everything into context and make it seem like you are not just going on a fishing expedition. Educating the court is always a good idea and motions are the best way to do that. This allows the court to better weigh in on plea negotiations, especially if the court was a skilled trial attorney or has seen some great legal battles play out in the courtroom.
Unless the primary defense theory involves the mental health status of the child victim, the defense may not have an expert on this issue. However, even if it does, one is not necessary for the court to review these records pursuant to State v. Krivacska, 341 NJ Super 1 (App. Div.) cert. Denied, 170 N.J. 206 (2001). The Court is more than capable of reviewing these records and figuring out what is relevant and what is not. Of course, this is where educating the court is helpful. Even if you had an expert on this issue, it may not be possible to get the expert to even write a general letter on this issue. Most do not like to get into hypotheticals. However, a letter summarizing findings in respected journals may be helpful from the court. This will of course alert the State that you have an expert.
If full access to these records are denied, the defense attorney should not assume that there is no way they will ever come up. Testimony during the trial may trigger a need for the court to examine these records. This was the issue in State v. VanDyke, 361 N.J. Super 403 (App. Div.). There, the defense attorney moved for an in camera review of school records during the trial and the court refused. The Appellate Division held that this was reversible error and that without these records, the defense was left with no ability to impeach the testimony of the victim’s mother.
The Sex Crimes Lawyers 