Monthly Archives: December 2006
Today’s Appellate Division holding in State v. Buda represents a critical step in the development of New Jersey’s Confrontation Clause jurisprudence following the United States Supreme Court’s holdings in Crawford v. Washington, 541 US 36 (2004) and Davis v. Washington, 126 S. Ct. 2266 (2006).
In Buda, an investigator from DYFS reported to a hospital emergency room in response to a call related to possible child abuse. During the investigator’s interview of the child, the child made several critical statements that tended to incriminate the defendant. The child did not testify at trial and was never subject to cross-examination. The trial court admitted the child’s hearsay statements as an excited utterance under NJRE 803(c)(2).
On appeal, the defendant contended that regardless of the hearsay exception under which the child’s statements were admitted into evidence, the statements should have been excluded under the Confrontation Clause.
The Appellate Division reversed the conviction and held that under the facts of this case, the child’s statement to the DYFS investigator was elicited, at least in part, for the purpose of gathering evidence for a criminal prosecution.
This case constitutes an expansion of Crawford in the sense that the hearsay statements were made to a person who was not a police officer. This expansion is part of a general trend in the reported case law around the country in child abuse cases. The Appellate Division panel also notes its agreement with the rules established in State in the Interest of J.A., 385 N.J. Super. 544 (App. Div. 2006) for determining when a hearsay statement is testimonial within the meaning of Crawford.
Please note the excellent concurring opinion by Judge Sabatino which provides a concise overview of Crawford and the enormous impact it has had on criminal trial practice.
Download a copy of State v. Buda.
Earlier today, the governor signed the “Bloodborne Disease Harm Reduction Act,” which allows up to six municipalities to establish needle exchange programs as part of a demonstration project. The bill also appropriates $10 million for drug treatment.
The demonstration project requires that municipalities interested in participating adopt an ordinance and that participants in the needle exchange program be given information and referrals for HIV counseling and testing, drug abuse treatment programs and health and social services.
The Department of Health and Senior Services (DHSS) will establish the parameters of the needle exchange program by regulation. The Commissioner of the Department of Human Services is required under the legislation to develop a plan to create and fund regional drug abuse treatment facilities.
Prior to the enactment of this new law, possession of hypodermic needles and syringes was banned under both NJSA 2C:36-2 (drug paraphernalia) and NJSA 2C:36-6 (possession of a set of works). However, Section 8 of the new law provides:
“The possession of a hypodermic syringe or needle by a consumer who participates in, or an employee or volunteer of, a sterile syringe access program established pursuant to sections 3 and 4 of P.L. , c. (C. )(pending before the Legislature as this bill) shall not constitute an offense pursuant to N.J.S.2C:36-1 et seq. This provision shall extend to a hypodermic syringe or needle that contains a residual amount of a controlled dangerous substance or controlled substance analog.”
Download a copy of the Act in PDF format. In reviewing the statute, note that materials in [brackets] have been deleted and are not part of the final version of the law.
In response to an inquiry, the Supreme Court is considering a proposal to make the fee arbitration process open to the public. This would permit details about what is currently considered to be a private matter between attorney and client to be made public and published in the media. A copy of the proposed change to Rule 1:20A-5(b) which would implement this procedure is attached to this muni-mail. Comments on the proposed Rule amendment may be made to:
The New Jersey Supreme Court
Post Office Box 970
Trenton, N.J. 08625
Download a copy
In today’s Supreme Court decision, In re Advisory Opinion 697, the Justices removed many of the potential conflicts that prevented attorneys with professional affiliations with municipalities from appearing in the municipal court of that municipality. As originally promulgated by the Advisory Committee on Professional Ethics, an attorney who was employed by an agency or board of a municipality was prohibited from appearing in municipality’s local court and representing defendants charged with traffic and quasi-criminal offenses. This prohibition came under the general policy of the so-called “municipal family doctrine.” However, the Supreme Court ruled today that since the Rules of Professional Conduct were amended in 2004 to eliminate the “appearance of impropriety” language, the current Rules do not necessarily prohibit an attorney who represents a municipal agency or board from representing clients in municipal court. Accordingly, under the procedure announced today, an attorney who represents a municipality (such as a city or township attorney) may not appear in municipal court or before other agencies of the municipality to represent private clients. However, if the attorney only represents an agency or board of the municipality, he or she may represent private clients in the municipality’s court, provided there is no other conflict that would limit the attorney’s ability to provide independent advice and representation to both the municipal entity and the private client.
Download a copy of Option 697.