Category Archives: The Trial Process

Sex Crimes Trial Process

Child testifying by closed circuit TV in NJ sex crimes cases

The use of shadow juries in child sex cases

Is a child competent to testify as a witness in a New Jersey child molestation case?

Jury selection in a child sex case in New Jersey

Child testifying by closed circuit TV in NJ sex crimes cases

I’ve never encountered a case where the issue of close circuit TV was even a thought. Thus, it seems to be more hype that reality although it has happened and thus, is a remote possibility (no pun intended). The statute governing this is NJSA 2A:84A-32.4. There are a few requirements: 1) the crime has to fall under one of the enumerated offenses (which lists most of them), 2) the victim is 16 years old or younger and 3) there is a substantial likelihood that the witness would suffer severe emotional or mental distress if required to testify in open court.

 

Interesting enough, the motion could be filed by just about anyone connected to the case including the State, the victim, the victim’s attorney, parent or legal guardian, the defendant, the defendant’s attorney or even the judge. Pursuant to State in the Interest of B.F., 230 N.J. Super. 153 (App. Div. 1989) if the defendant objects to such a motion, the burden of proof on the moving party is clear and convincing evidence.

 

If the victim indicates that the fear is of the defendant and the defendant waives his or her right to be present in court, then the trial court should deny the motion to testify via CCTV. State v. Crandall, 120 N.J. 649 (1990). Clearly, the jury cannot be told that the victim is so afraid of the defendant that he or she had to leave the court room. There will rarely be a point to finishing out the trial in that scenario. Does the court flat out lie to the jury then at this point? Surely such a scenario will make for some interesting discussions with the judge. Luckily, most attorneys will probably never encounter this in their careers.

The use of shadow juries in child sex cases

Shadow juries are a group of people that sit in the courtroom and watch the trial (or parts of it) and then are debriefed at the end of each day. It helps the defense to tailor its strategy, especially in a long trial or to pick up on issues that only a jury would notice. Any defense attorney who has kept a jury out for four days on a rather simple case knows that feeling of “what did they miss” or “what are they thinking”. Clearly, your perception of the case is not their perception. Besides being biased, you as the defense lawyer is not like the average juror. Your intelligence and experience is far beyond what they possess. Remember the show, Are you smarter than a 5th grader? Those people are your jurors.

 

Thus, it may be helpful to have a shadow jury. Of course, this does not come cheap as these people will not likely give up their lives for free just to help you out. Nevertheless, websites like Craigslist can help find people that are willing to be a shadow juror for a small amount of compensation. I would want at least three but no more than six. Anything more than six would be too expensive and there is the law of diminishing returns.

 

The next question is who is going to organize these people and debrief them? Clearly, you as the defense lawyer have enough to do then to hire people, organize them, debrief them, pay them, etc. Someone from your office staff can do all of this but if they are not a lawyer, how will then know how to debrief these people? The other problem is that if they know they are working for the defense, they may be a bias towards your case, especially since you are paying them. Furthermore, it may be hard for them to critique you if they know they are speaking to a member of your office staff. Thus, you may want to hire a criminal defense consultant to handle everything for you. The consultant should not identify which side they are working for, if any side at all. The consultant can then meet with you and help you alter your strategies or hone in on which ones are having an impact. This is the best way to ensure you are getting an honest answer from your shadow jurors.

 

Because the cost of running an effective shadow jury could run from $1,000 to $1,500 per day on the low end, you may want to only bring them in for the critical parts of the case to minimize expenses. Of course, if money isn’t that much of an issue, you want them there the entire time.

Is a child competent to testify as a witness in a New Jersey child molestation case?

One of the first issues that arises with the testimony of a child witness is competency. Clearly, children incapable of verbal expression are not competent witnesses. Beyond that however, the defense may have a tough time convincing a judge that the child witness is not competent to testify. However, this doesn’t mean the issue should not be challenged.

 

The specific rule of evidence on competency is found at N.J.R.E. 601. However, it is the case law that really damages the defendant’s rights here. For example, in State v. G.C., 188 N.J. 118 (2006), the New Jersey Supreme Court held that the trial court properly determined that the child victim was competent to testify. After asking a series of questions, the child told the judge that it was good to tell the truth and that she was not going to tell a lie. Despite the fact that this doesn’t indicate anything about the child’s understanding of what a lie is, the New Jersey Supreme Court found that this was enough.

 

Of course, a defense attorney should insist upon more. A common test is asking the child victim questions about what is going on right now. If a judge picks up a pen and says, if I say that I am not holding a pen, is that the truth or a lie. Almost every child will say its a lie. However, this is a rudimentary understanding of truth and lies based upon direct perception. Instead, the defense attorney should submit questions that focus more on the defense them of the case such as “if your Mommy told you that (fill in the blank) happened and it really didn’t, would you say it was the truth?”. The child can also be asked to come up with some examples of a lie, especially ones that the child may have told before.

 

I don’t expect most judges to rule that a child is not competent to testify on the eve of trial but that doesn’t mean you shouldn’t make a record. However, if there is something in the child’s school records or medical records to indicate that there may be serious competency issues, then this motion should be made way in advance of trial. This may make it easier for the judge or the State to resolve the case in some other fashion such a plea or dismissal.

Jury selection in a child sex case in New Jersey

This is perhaps the most difficult case for a jury selection process that a defense attorney can face in New Jersey. The vast majority of jurors may disqualify themselves as soon as they hear about the case. Luckily, a good judge with a lot of trial experience will take this into account. However, the defense attorney has to be ready to have ideas in case the judge looks to them for guidance or suggestions. After all it is your defendant whose freedom is on the line.

 

Before jury selection even begins, the defense attorney should have submitted a long list of questions for the jury. I always prefer a long list because many of these question will not be asked. Instead, there will be debate over which questions to ask and why. Be sure to make a record of what questions will not be asked and why. This is easily overlooked in such a trial especially if discussions are held in chambers. One way to make the process easier for the panel of prospective jurors is to only focus on the time commitment and the nature of the charges. Everyone that has an issue raises their hand and then forms a line to discuss the issue at sidebar. Most jurors will be excused and you could be left with a quarter of the jury panel or less.

 

Some jurors want to serve but are conflicted about their duty to serve versus their personal feelings about the allegations. Some judges can guilt trip these jurors into remaining on the case. The defense attorney must be able to get this potential juror to commit 100% to being fair and impartial. Most people cannot do so and thus, they should be excused.

 

Care should also be taken to listen to how the jurors respond and not just what they say. Some people seem too eager while other people seem too reluctant. Other people are hardly on the same planet with the rest of us despite correct answers to the questions. Hopefully, the judge will allow both attorneys to ask some follow up questions. This process should not be abused. It is not an invitation to interview the prospective juror at length.

 

During jury selection, remember to be polite to every possible juror, even those that will be leaving. Some of the people in the courtroom may be on the jury and you are just as much on trial as your client. If they have a negative opinion about you, they may have a negative opinion about everything you say.  If you need help with your case, call the NJ Child Sex Crimes Lawyers today.