Criminal Court Rule Changes for 2013

            As of January 1, 2013, new changes to criminal practice Court Rules in NJ will become effective. With the exception of issues relating to indictments and pre-arraignment conferences, the changes that apply to Superior Court practice apply to Municipal Court practice. Though this is not intended to be a blow by blow of each deletion and addition, the highlights are as follows:


  • Defense counsel can now only substitute in if the substitution certifies that they are in receipt of discovery from the prosecutor. R. 1:11-2(a)(3).


  • The State must now turn over copies of warrants and accompanying papers to defense counsel instead of just making them available for inspection and copying. R. 3:5-6(c).


  • The State must now make the Indictment and discovery available to defense counsel or transmitted to the Criminal Division Manager’s office following the return or unsealing of an indictment within 7 days instead of 14. The Defense has 28 days after return or unsealing to obtain the discovery. R. 3:9-1(a).


  • For private defense counsel, waiving pre-arraignment conference now needs only certification that discovery has been requested, or that it will not be requested. The public defender’s office still needs to certify that they have discovery in hand. R. 3:9-1(a).


  • Prior to the arraignment, the state and defense must reach out to each other and either resolve or agree to disagree on any discovery issues, including all the tech issues. R. 3:9-1(b).


  • Pre-indictment discovery now includes only that which would be available to the state at the time of indictment and only if the defense attorney requests it. However, if the State believes disclosure would hinder or jeopardize the prosecution or investigation, they need only inform defense counsel that discovery is incomplete. If delivery would impose an extraordinary administrative burden, then it only need be made available. Regardless of these restrictions, the state must turn over whatever exculpatory information it has at that time. R. 3:13-3(a).


  • Post-indictment responsibilities are the same, except when it is only made available for review as opposed to delivered to defense counsel, it must demonstrate good cause as to why the “circumstances in which the nature, format, manner of collation or volume of discoverable materials would involve and extraordinary expenditure of time and effort to copy”. R. 3:13(b)(1).


  • Both parties must provide the other with a list of the discovery materials provided. R. 3:13-3(b)(2). This includes any electronic data, and if spanning multiple disks, on which disk each item can be located. R. 3:13-3(d). If items have not been provided, they must provide what it is and why it has not been turned over. Defense counsel is supposed to turn over “discoverable materials” along with a list of materials at least 7 days prior to arraignment, or with an explanation of why they have not been supplied. The remainder of the defense obligation is essentially the same as the State’s. 3:13-3(b)(2). *But pursuant to ___, discovery need not be turned over until defense counsel intends to use it at trial.*


  • As long as defense counsel gets a letter of representation out prior to pre-arraignment conference, the State has to get discovery over to defense counsel within 3 days of receipt of the discovery demand. Though this demand now must include defense counsel’s preference for transmission by email or snail mail, the state has the discretion. *Assuming printing the discovery costs out at less than the postage, a preference for email would be advised. This would also cut down on time spent scanning items for those who do so.*


  • Defense attorneys may now request discovery in email form when entering their appearance. R. 3:3-13-3(b)(2).


  • When a defendant does not appear at pre-arraignment, or if he is unrepresented at pre-arraignment conference, the arraignment will be scheduled for 28 days after indictment instead of 50. R. 3:9-1(c). *This may or may not exclude those defendants whose appearances were waived by counsel. However, due to the time requirements for transmission of discovery by the State following waiver by counsel for pre-arraignment, there should be no issues that result from the non-appearance, so they really should not have to appear so early.*


  • Discovery now includes all of the following items: “books, tangible objects, papers or documents obtained from or belonging to the defendant, including, but not limited to, writings. Drawings, graphs, charts, photographs, video and sound recordings, images, electronically stored information, and any other data or data compilations stored in any medium from which information can be obtained and translated, if necessary, into reasonably usable form.” *This change is essentially the same throughout the Rules, including depositions when appropriate, criminal chapter and municipal chapter pertaining to defense and prosecutor.* R. 3:13-1(b)(1)(A).


  • State and defense must exchange “transcripts of all electronically recorded statements or confessions by a date to be determined by the trial judge”, but no later than 30 days prior to the trial date. R. 3:13-3(b)(1)(G) & (2)(D).


  • Transcripts of codefendants or any other statements only need to be turned over if the State intends to call that witness at trial. R. 3:13-3(b)(1)(G) & (2)(D). *The changes seem to apply only to the State.*


  • Motions to compel discovery cannot be filed “unless the moving party certifies that the prosecutor and defense counsel have conferred and attempted to reach agreement on any discovery issues.” R. 3:13-3(c).


  • Parties may provide discovery pursuant through the use of CD, DVD, e­mail, internet or other electronic means, as long as it is in .pdf format (files that would open in Adobe Acrobat). R. 3:13-3(d).


  • All non-scannable information must be “provided in an open, publicly available (non-proprietary) format that is compatible with any standard operating computer. If discovery is not provided in a PDF or open, publicly available format, the transmitting party shall include a self-extracting computer program that will enable the recipient to access and view the files that have been provided. Upon motion of the recipient, and for good cause shown, the court shall order that discovery be provided in the format in which the transmitting party originally received it.” *Remember that not all programs are compatible with all computer operating systems. Some programs that are designed on and/or for Apple, Microsoft, Linux, or Android machines may not run on one another*. R. 3:13-3(d).


  • “In all cases in which an Alcotest device is used, any Alcotest data shall, upon request, be provided for any Alcotest 7110 relevant to a particular defendant's case in a readable digital database format generally available to consumers in the open market.” *The Alcotest breath machine data contains more columns than the commonly used Microsoft Excel is capable of displaying. Quattro Pro from Corel WordPerfect is one program which displays all fields.* R. 3:13-3(d).


The second sea change is in discovery fees. Prior to these changes, there was little guidance as to what could be charged for discovery, other than that it be reasonable. The Rules now essentially mirror the Open Public Records Act:


  • $0.05 per letter size page or smaller and $0.07 per legal size page or larger, electronic records and non-printed material are free, but data discs will be at cost (these are usually $0.10-$1.00). However, if the actual cost of materials and supplies exceeds those rates, the prosecutor can charge a reasonable amount. R. 3:13-5(a).


  • “Whenever the nature, format, manner of collation, or volume of discovery embodied in the form of printed matter to be copied is such that the discovery cannot be reproduced by ordinary document copying equipment in ordinary business size, or is such that it would involve an extraordinary expenditure of time and effort to copy, the prosecutor may charge, in addition to the actual copying costs, a special service charge that shall be reasonable and shall be based on the actual direct costs of providing the copy or copies. [. . .] [D]efense counsel shall have the opportunity to review and object to the charge prior to it being incurred.” R. 3:13-5(b).


  • “If defense counsel requests an electronic record: (1) in a medium or format not routinely used by the prosecutor: (2) not routinely developed or maintained by the prosecutor: or (3) requiring a substantial amount of manipulation or programming of information technology, the prosecutor may charge, in addition to the actual cost of duplication. a special charge that shall be reasonable and shall be based on (1) the cost of any extensive use of information technology, or (2) the labor cost of personnel providing the service that is actually incurred by the prosecutor or attributable to the prosecutor for the programming, clerical, and supervisory assistance required, or (3) both. [. . .] [D]efense counsel shall have the opportunity to review and object to the charge prior to it being incurred.” R. 3:13-5(c).

Picking a Jury

I have provided below an interesting article on jury selection.  It is from the perspective of a civil practitioner, but the considerations that come into play are equally as applicable to criminal practice.  Of course, I don't necessarily agree with some of it, particularly since I don't think I would be struck correctly based on the  this article's pigeonholing (or so I think), it's worth a read.  A client of mine found it here at the Synchronics Group website:

"The body talks - loud and clear. If you can hear it, you will gain a winning edge in the courtroom - especially in the difficult task of jury selection.

For example, you have a case with the following facts: A 34 year old woman was riding in her friend’s car when the car was hit by oncoming traffic. The plaintiff suffered minor neck and back pains, but otherwise, seemed all right. Now, however, she is complaining of depression, lack of concentration and nightmares. She makes mistakes at work, is nervous, anxious and ill tempered. She says her life has changed dramatically since the accident and is suing for pain and suffering and loss of ability to work.

Generally - and we are talking in broad strokes, here - as plaintiff counsel, you want jurors who are nurturing and generous. These are not the only characteristics you are looking for, but they are almost generic plaintiff traits in cases where someone is hurt and is trying to get compensation.

Your ideal plaintiff jurors should be nurturing so that they will want to help the plaintiff and make her 'whole again.' They should be open and receptive to the fact of her suffering. They should be generous so they will give her a lot of money.

These kind of people are touchy-feeley; they are gregarious, socially oriented and often work in the helping professions, such as social worker, teacher, therapist, sales. They do volunteer work.

As defense counsel, you want jurors who are more restrained and disciplined, both with their feelings and their pocket book. They are more 'thinkers' than 'feelers.' They believe everyone should take responsibility for what happens to them and not blame others or look to others to get 'fixed up.'

These kind of people are uptight; they hold on to their preconceptions. They often fill responsible positions in those professions which require analytical thinking, such as engineers, accountants, computer programmers and managers. They are usually part of the 'establishment,' and are satisfied with the status quo.

If this is the extent of the jury profile you carry with you when you begin voir dire, you will make it through the process okay. But if you can expand upon that profile by adding some nonverbal indicators which can visually describe your ideal juror, imagine the cutting edge, the distinct advantage you will have over your opponent.

This article will describe some of those nonverbal indicators which will help you identify the juror you want in this kind of case. I will describe a set of opposite indicators, one set to identify a plaintiff juror and one set to identify a defense juror.

These visual clues are subtle hints about a person's temperament - not concrete facts. You will rarely see these indicators expressed in black and white, but rather you will experience them in scales of gray. Furthermore, people can project contradictory clues about themselves.

Nevertheless, for clarity's sake, I will describe these indicators in their extreme manifestations. The challenge, however, is to know what to look for, identify the clues and then integrate them into a coherent picture which reflects the person's overall psychological patterns.

The Plaintiff Voir Dire
So, you are plaintiff counsel, looking at the jury pool for potential plaintiff jurors. What does a nurturing, open, receptive and generous person look like? What kind of clothes does this kind of person wear? Shoes?
Hair Style? Accessories?

Let's look at shoes first, because they are the tell-tale indicator of temperament. While the mind is the reservoir of our thoughts, the body is the reservoir of our feelings. Feelings live in the body, and the body leaks. The further away from the head you go, the more the body leaks its feelings.

For example, we might feign a smile and say that everything is okay, when in fact, we are feeling nervous and anxious. Someone looking at our face could easily be fooled. But if that person noticed our hands, he might see that we were rubbing our hands together, or picking at our nails or tapping our fingers. And if by chance the person could see our feet, he might see an agitated foot shaking up and down or toes tapping. So the further away from the brain we get, the more the body reveals what we are really feeling.

Similarly, what we put on our head or ears will not reveal as much about who we are as what we put on our feet. Therefore, my point that shoes are the tell-tale indicator of personality.

What kind of shoes will a nurturing, open, receptive and generous person wear? The style will be casual and comfortable with plenty of room for the toes, because these people don't want to be hemmed in. No pointy tips. The heels will be low, because open people want to be able to move around easily. No stilettos. Sandals, sports and walking shoes are more likely to fit this person's style than compact, tight dress shoes.

Some people who are open and receptive will be more fastidious about their self-presentation than others. They'll pay more - or less - attention to hygiene, cleanliness, fashion and maintenance of their wardrobe. And their shoes will reflect the degree of that concern.

So we cannot predict how well maintained or clean their shoes will be. But we can guess how well maintained and clean their shoes won't be. They probably won't have perfect heels and a glossy polished finish. These people are not obsessive types, so the attention they pay to their wardrobe won't be obsessive. Similarly, their shoes might go with the outfit, but not be color coordinated.

What about clothes? Their clothes will be casually comfortable and loose fitting - rather than tailored - because open people need room to move around in. No cramming the body into tight skirts or pants or collars that pinch. Jackets , shirts and sweaters will be open, not buttoned up. Their clothes, like their shoes, will be clean and neat, but not obsessively so. They'll will not look 'put together,' except in a casual way.

And hair style? Their hair style will be casual and naturally flowing, rather than highly styled or gelled or plastered to the head. Indeed, the styles will be "big" rather than small. Beards and mustaches will be natural looking, rather than designed and sculpted.

We can predict that an open and generous woman will probably carry a big handbag that has room for lots of things. Her accessories will fit loose on the body - no chokers, for instance or scarves tied tight around the neck. Her earrings might jingle, instead of fitting close to her face.

As you look over the jury pool, the open and nurturing people will be sitting in open postures, i.e., with their hands on the chair arm instead of folded across their stomach. They'll be engaged with other people, instead of keeping
to themselves; they'll look relaxed, not worried. They tend to be more on the heavy side than the light side -
not fat - but full bodied. A nurturing woman will more likely have large breasts, for instance. These people will have some weight to them and take up space. Their faces will be big and eyes wide apart. Their whole demeanor will
look 'open.'

The Defense Voir Dire
Now, if you represent the defense in this case, you will be looking for jurors who are the opposite, i.e, up tight, restrained and cautious. You do not want people who are expansive or ebullient; on the contrary, your ideal jurors will be closed - closed to a plaintiff's suffering and clutching a closed purse.

They will sit in the courtroom in closed postures, i.e., with arms and legs folded, holding on to themselves. They will keep to themselves, perhaps they will be reading - giving minimum eye contact to others. And because it takes energy to maintain a closed posture, their body language will reflect some tension, i.e., a set mouth, a furrowed brow, hands tightly knitted together, or better yet - a tightly closed fist.

The more tension in the person's body language, the more closed that person is. Notice the different degrees of tension, therefore, between hands loosely fisted versus hands tightly fisted with white knuckles. The stronger the tension holding the body together, the more difficult it will be to get that person to open up to new ideas and persuasion.

Closed, up-tight people will wear clothes that restrict their movement, that is, their clothes will be tight fitting, tailored and formal. They will tend to button their jackets and shirts, instead of leaving collars open. Men might wear vests. Colors will be subdued so as not to stand out in the crowd. Their clothes will be carefully pressed.

Their shoes will be closed toes and heels; no sandals, for instance or - for women - no slings or open toe pumps. This kind of person will wear more formal shoes than casual or sporty. The heels are more likely to be leather than crepe or rubber. Their shoes will be well maintained, if not buffed and polished.

A closed and restrained juror will wear a hair style that reflects that demeanor, i.e., the style will be carefully cut, coiffured and maintained. It will be neat and orderly and combed close to the head - and possibly gelled - to prevent it flying about.

Accessories will be minimal and understated. These are not flashy people who are trying to show off. Whatever accessories they wear - jewelry, scarves - will fit into the overall impression of a neatly packaged product, with no loose ends hanging about.

An Art, Not an Equation
In summary, you can tell a great deal about people by the way they visually present themselves to the world. You cannot know what they will think about your case issues, but you can know how they might feel about them. Shoes, dress, accessories, and body language are keys to identifying temperament and psychology.

Most important, the body never lies. We might read it incorrectly, but the answers are always there. If a
contradiction exists between what a person says verbally and what that person's body language says visually,
trust the body language.

Being aware of these nonverbal indicators will not guarantee you a jury panel ready to give you an immediate verdict, but being literate in the nonverbal language gives you that extra bit of information in jury selection which can make the difference between an educated guess and a wild shot."

Suppression Hearing Video Footage

I really can't say how I stumbled on the following clips, but I do remember googling for cross examination clips on youtube while I was procrastinating about brushing my teeth one morning.  I then spent the next week or two of morning procrastination sessions watching the hearing unfold.  What I found is a 2010 suppression hearing relating to a dog sniff at a border patrol check point.  Although we in New Jersey will likely never have occasion to need to learn the intricacies of border patrols, the clips are still instructive on style and procedure.  The dog sniff issue, however, is very timely.  The United States Supreme Court recently heard arguments on dog sniffs and their relationship to search and seizure in Florida v. Jardines and Florida v. Harris.   They are not as simple as you would think.  In fact, you can view the NJ Attorney General's 2002 Policy on Canine Training and Qualification Standards by clicking here.

Part 1

Part 2

Part 3

Part 4

Part 5

Mcafee on the Run

In one of the more bizarre stories recently involving criminal allegations, has been reporting dispatches they are receiving from John Mcafee.  Mcafee is wanted by the government of Belize for questioning into the murder of his neighbor.  He is also the same Mcafee whose namesake of the anti-virus software make him the millions that allow him to live own beach front property on a small island off of the coast of Belize.  The more you read, the more you wonder whether he had something to do with the murder, or whether he just wants a fair shake unavailable to him by law enforcement in Belize, or both.  Click here or here for one of the articles describing the situation, or here to read Mcafee's bog while on the run.  Scroll down after the jump for the rest of them.

UPDATE: Mcafee has been taken into custody in Guatemala, is fighting extradition, and has sold his story to Fox.  Curioser and curioser.

Casey Anthony

I'm a big fan of Casey Anthony.  Well, not so much Casey Anthony the person as much Casey Anthony the trial.  I remember a few weeks before her Florida murder trial started in Summer of 2011 when I found out it existed.  I don't have cable, so I'm sometimes a little behind on sensationalized media activity.  I then spent the bulk of the Summer watching it streaming online.  Despite the country's collective outcry when a criminal defendant was NOT convicted, it was a great victory for the system.  The knee-jerk reaction of what seemed to be everyone who is not an attorney showed why our system works.  Every year I guest lecture to a freshmen class at Rutgers University.  I start by asking for a show of hands for who is familiar with the trial, then who thinks she was guilty, and then who watched at least an hour of the trial.  The hands begin to go down.  I then ask who watched the entire trial only during the portions when the jury was present and then sat in a room with a dozen other people and talked about it for ten hours straight.  There are no hands, my point is made, and we move on.

I can't for the life of me find it on the interwebs anymore, but if you can, watch it.  It has great testimony on everything from trash (I mean garbage), to pigs in a blanket, to imaginary friends.  It also had good technical testimony on DNA, new-fangled human decomposition smell-o-meter technology, and forensic computer analysis.  It was this forensic computer analysis that recently yielded new information pointing toward guilt.  Although initially botched (and the botch buried by the prosecutor's office), the search contained some interesting information about how your computer works, and how what has been done on it can be found and interpreted.  A new search of the Anthony household's hard drive obtained by a public records disclosure reveals that the web browser that Ms. Anthony commonly used had a search about suffocation on it, followed by a visit to Ms. Anthony's page.  Apparently the prosecutor's office never asked for searches that would narrow anything down so tightly, but eventually it was. Click here for further reading.

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