Category Archives: The Pre-Trial Process
Sex crimes, such as child molestation rarely have witnesses. If the defendant denies his or her guilt, there will be no actual witnesses since nothing occurred. Furthermore, alibi defenses may be difficult because children do not have a great sense of time. Earlier in the year may be “a long time ago” to a five year old. Thus, defense attorneys in child abuse cases must get creative when taking statements.
As always, its tough to take a statement in a vacuum. Knowing as much about the case as possible is vital to identify who should be interviewed, when and what questions to ask. Of course, timing is everything and you want to strike while the iron is hot. People have bad memories and loyalties may change as the case develops. Once sufficient information is developed, the statements taken may focus on a wide variety of issues such as alibi, character of the defendant, character of the accused, interaction with other children, character of others who may have coached the child, mental health issues of all parties involved, attacks on possible State’s witnesses, etc.
The attorney should avoid interacting with the witness as much as possible, especially without witnesses present. A good private investigator will need little to no help from the attorney during the interview. However, input from the attorney is vital to helping the private investigator draft the appropriate questions. I prefer to use former police officers for big cases such as child molestation. They have a better understanding for what the State is looking for and how to set up the questioning.
Most private investigators start with a pre-interview to see if the witness has appropriate testimony to give. Once the statement is established, it should be typed out and signed by the witness. This will help prevent the witness from wiggling out of it in the future. For multiple page statements, each page should be initialed. Some investigators have the witness initial each line. This way, there can be no claim that the statement has been altered.
The attorney should advise the witness that they may be contacted by investigators from the State and that they have the right not to answer questions. However, they cannot be told not to answer questions. Furthermore, the defendant needs to be reminded that he or she should not even discuss this issue with the witness. The last thing anyone here needs is a charge of witness tampering.
Now the question becomes when to release the statement to the State. If it is clearly exculpatory, strong consideration should be given to sending it to the State pre-indictment has Hogan evidence. If it is Hogan evidence, the State must present it to the grand jury. However, most of the time, the State will just dismiss or remand the case instead of wasting time at the grand jury.
If the statements are handed over after indictment, be sure not to violate any discovery rules. Instead, review the rules carefully. In general, the State has to hand over the entire file. The defense attorney only has to hand over that which it intends to use.
As we have previously indicated, there is no one way for a lawyer to defend a client charged with a sex offense in New Jersey. Thus, taking the position that the defendant will never testify in front of the grand jury is ridiculous. However, such a tactic is very, very risky. Only an experienced sex crimes defense lawyer can make a proper determination as to whether or not this is the right move. There are a number of considerations.
The first of which is the facts of the case as presently known by the defense. Its not always easy to get a good picture of the State’s case pre-indictment. If plea discussions are underway (and they should be in every case regardless of the Defendant’s position) the defense attorney should have at least some pre-indictment discovery. This may take a while to get if it is ever received. Thus, one early source of information is a bail motion. The State will likely divulge at least a few facts about the case. While the defendant is another source of information, it is not always the most reliable source of information.
Knowing your prosecutor is very important. Of course, that doesn’t mean that you have to deal with this person every day. In fact, some of our best wins came from prosecutors that we had just met. Like any other group of people, there are many different types of prosecutors. If the prosecutor is the type that will stop at nothing to convict the defendant, than you might not want to put the defendant up in front of the grand jury. However, if the prosecutor has actually suggested that the defendant testify, then there is a much better chance for a no-bill (i.e. the grand jury will not indict the defendant). Of course, not every prosecutor is so overt. Most may fall somewhere in the middle. Thus, an experienced sex crimes defense lawyer knows that you have to not only size up the case but size up the prosecutor as well.
Before the client testifies in front of the grand jury, a dry run should be conducted. Even if the defense lawyer is a former prosecutor from many years ago, I don’t suggest that the defense lawyer conduct a mock examination of the defendant. The prosecutor is a stranger to the defendant that should be feared. Its hard to fear the person that has been paid to protect you. Thus, my preference is to bring in a recently retired former prosecutor to do the mock examination without any prior introduction. It would also help to have a few mock grand jurors to evaluate the performance of the defendant. If the defendant does not perform well, the same will likely be repeated in front of the grand jury.
If the defendant does testify, he or she still has a 5th amendment right at all times. Thus, the defense attorney should insist on being present outside the grand jury room. At any point, the defendant should be permitted to consult with the attorney prior to answering the question. Of course, this will agitate all involved so it should only be done in the most extreme circumstances. However, I’ve never seen a client have to actually come out and use this option. Sometimes the mere availability of such an option presents the necessity of using it.
While this isn’t a common option in most cases, it has been successful in every time this firm has utilized it. However, that is only due to the work that gets put into the decision making process itself. If you need help with any sex crime, call our team of New Jersey Sex Crimes Attorneys today.
Every defendant sitting in jail is looking to get out at all costs. However, this rush can be to his or her detriment. The first focus should be on hiring an aggressive sex crimes defense lawyer and budgeting properly for a possible trial. This will leave most families with little to no money to bail out the defendant. Unfortunately, many people are in such a rush to get out of jail that they wind up spending a long time in prison because they have their priorities out of order. After spending a ton of money on a bail bondsman (money that they will never get back), there is no money for a top defense lawyer.
If there is money left over after the lawyer is retained (and then budgeted for properly) the next step is to determine if the bail can be lowered by the lawyer filing a bail motion. Most bails for sex offenses are set very high. Despite the fact that bail guidelines are in place, most judges will point out that these are just guidelines and not rules. Thus, they will usually go above them. Thus, a bail motion could help lower this figure to make it more manageable for the family.
As part of the bail motion, the lawyer will want to address all of the factors that court must consider. The age of the defendant and the lack of criminal record are always important to highlight but don’t expect that to carry the day. Many sex offenders are first time offenders so this will likely not move the judge. Instead, consider character letters and a risk assessment done by an expert that the judge respects. Our team of aggressive sex crimes defense lawyers work with some of the best experts in New Jersey.
Once all of this is assembled into a motion, it could like quite impressive. A quality presentation like this may set your motion apart from the pack and thus result in a lower bail. The defense attorney can also propose a number of bail conditions such as surrendering of passport and a monitoring bracelet to help this go down easier for all parties involved. However, that is not the end of the analysis. When to bail out is just as important as if the defendant should bail out.
Sex crimes investigations in New Jersey take time to develop. There is a good chance that the investigation will continue after the defendant is arrested. Our team of NJ defense lawyers have seen defendants bail out only to be arrested again just a few weeks later as the investigation leads to additional charges. A new bail will then be set and with no additional money, the family has lost the money they put up for bail and the defendant is still sitting in jail with no hope to get out.
If your loved one is sitting in a jail in New Jersey for a sex offense or any other crime, call us to see how our team of NJ Sex Crimes Lawyers can help you.