Defendant Should Not be Deprived of the Full Right to Cross-Examine the Police Officers and Witnesses at Trial KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500 (Fax) 732-572-0030 website:www.njlaws.com The NJ Supreme Court in State v Castagna 187 NJ 293 (2006) wrote: “The Confrontation Clause of the Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. The Confrontation Clause is applicable to the states through the Fourteenth Amendment. Painter v. Texas, 380 U.S. 400, 406, 85 S. Ct. 1065, 1069, 13 L. Ed.2d 923, 927-28 (1965). Our state constitution provides the same guarantee. N.J. Const. art. I, § 10. “The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Maryland v. Craig, 497 U.S. 836, 845, 110 S. Ct. 3157, 3163, 111 L. Ed. 2d 666, 678 (1990). In Craig, the United States Supreme Court outlined four key elements of a defendant’s right of confrontation: physical presence; the oath; cross examination; and observation of demeanor by the trier of fact. Id. at 846, 110 S. Ct. at 3163, 111 L. Ed. 2d at 679; see also, State v. Smith, 158 N.J. 376, 385 (1999). In the present case we are concerned with cross-examination, which has been described as “the ‘greatest legal engine ever invented for the discovery of truth.’" California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 1935, 26 L. Ed.2d 489, 497 (1970) (citation omitted); see also Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110, 39 L. Ed.2d 347, 353 (1973) (explaining that “cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested"); State v. Garron, 177 N.J. 147, 169 (2003) (noting right to confrontation “among the minimum essentials of a fair trial") (quoting Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 1045, 35 L. Ed.2d 297, 308 (1973)). “ In State v Castagno 177 NJ 147 (2003) the Supreme Court reversed a conviction partly because of failure to fully permit cross-examination in a rape shield case. The Supreme Court wrote: “The Federal and New Jersey Constitutions guarantee criminal defendants “a meaningful opportunity to present a complete defense." Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146, 90 L. Ed.2d 636, 645 (1986) (internal quotation marks omitted); Budis, supra, 125 N.J. at 531 (same). “That opportunity would be an empty one if the State were permitted to exclude competent, reliable evidence bearing on . . . credibility . . . when such evidence is central to the defendant’s claim of innocence." Crane, supra, 476 U.S. at 690, 106 S. Ct. at 2147, 90 L. Ed. 2d at 645. In State v. Garron, 177 N.J. 147, 169 (2003) looking at the rape shield law, the court wrote: “?Stated a different way, if evidence is relevant and necessary to a fair determination of the issues, the admission of the evidence is constitutionally compelled. See, e.g., Olden v. Kentucky, 488 U.S. 227, 229-33, 109 S. Ct. 480, 482-84, 102 L. Ed.2d 513, 518-20 (1988) (holding that right of confrontation was violated by excluding cross-examination concerning rape victim’s cohabitation with defendant’s half-brother that was “crucial" to consent defense to demonstrate victim’s motive to fabricate); Rock v. Arkansas, 483 U.S. 44, 52, 62, 107 S. Ct. 2704, 2709, 2714, 97 L. Ed.2d 37, 46, 52-53 (1987) (holding that right of compulsory process was violated by excluding manslaughter defendant’s hypnotically-refreshed testimony concerning circumstances of shooting husband that was “material and favorable" to defense that gun accidentally discharged); Crane, supra, 476 U.S. at 690-91, 106 S. Ct. at 2146-47, 90 L. Ed 2d at 645 (holding that fair trial required admission of testimony that was “central" to defense concerning reliability of sixteen-year-old’s confession to murder); Chambers, supra, 410 U.S. at 294-303, 93 S. Ct. at 1045-49, 35 L. Ed. 2d at 308-13 (holding that rights of confrontation and compulsory process were violated by excluding cross-examination and direct testimony concerning third party’s oral and written confessions to murder that was “critical" to defense of third-party guilt); Washington v. Texas, 388 U.S. 14, 16, 23, 87 S. Ct. 1920, 1921-22, 1925, 18 L. Ed.2d 1019, 1021, 1025 (1967) (holding that right of compulsory process was violated by excluding co-defendant’s testimony concerning circumstances of shooting that was “vital" to defense that co-defendant fired fatal shot)." A criminal defendant has the right “to be confronted with the witnesses against him" and “to have compulsory process for obtaining witnesses in his favor." U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. The rights to confront, cross-examine, and produce witnesses have been aptly characterized as “opposite sides of the same coin," because each confers the same fundamental right to elicit testimony favorable to the defense before the trier of fact. David Guy Hanson, Note, Judicial Discretion in Sexual Assault Cases after State v. Pulizzano: The Wisconsin Supreme Court Giveth, Can the Wisconsin Legislature Taketh Away?, 1 992 Wis. L. Rev. 785, 789 (citing Peter Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv. L. Rev. 567, 601-06 (1978)). See also Janet C. Hoeffel, The Sixth Amendment’s Lost Clause: Unearthing Compulsory Process, 2 002 Wis. L. Rev. 1275, 1307 (construing rights to confrontation and compulsory process as “sister clauses" which together “make the presentation of a defense at trial complete"). Each has long been recognized as essential to the due process right to a “fair opportunity to defend against the State’s accusations," and thus “among the minimum essentials of a fair trial." Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 1045, 35 L. Ed.2d 297, 308 (1973). In the seminal case of Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed.2d 347 (1974), the United States Supreme Court determined that a state’s procedural rule and statute protecting the privacy of a juvenile’s delinquency record had to give way to the superior claim of the Federal Confrontation Clause. In Davis, the State’s key witness was serving a probationary term for a delinquency adjudication at the time he cooperated with the prosecution and gave testimony implicating the defendant in a burglary. The defense sought to cross-examine the witness on the basis of bias, arguing that because of the witness’s vulnerable status as a probationer, he had reason to curry favor with the State. Relying on the state’s provisions protecting the confidentiality of a juvenile adjudication, the trial court barred the defense from eliciting on cross-examination the witness’s probationary status. While recognizing the privacy interests at stake, the US Supreme Court in Davis concluded that “[t]he State’s policy interest in protecting the confidentiality of a juvenile offender’s record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness." Id. at 320, 94 S. Ct. at 1112, 39 L. Ed. 2d at 356. In reversing the conviction, the Court found that any embarrassment or blemish to the reputation of the juvenile “must fall before the right of [the defendant] to seek out the truth in the process of defending himself." Ibid. website:www.njlaws.com
OVERVIEW OF MOTIONS AND CONFIDENTIALITY OF JUVENILE PROCEEDINGS Detention Hearings When a minor is detained at the time of arraignment, the court must consider several factors, most of which are statutorily enumerated. The court consider the minor’s criminal history, violations of court order or probation, escaped from detention hall, or a case of “urgent and immediate necessity for the protection of the minor, another person or property of another." Minors are not entitled to bail unlike in the adult courts. Generally, the court reviews the probation report and allows arguments by both the prosecution and the defense as to the issue of whether the minor should remain detained. The court may also enable parents/guardians or other witnesses to testify during these hearings. Moreover, the court after review of the reports, may detain an out-of-custody minor upon a finding of good cause. Many judges have detained minors if they come back to court with below average grades, missing curfew, tardiness or failure to attend classes or school in its entirety. Most juvenile courts will have a school liaison and a probation officer in the courtroom or in the premises to check the minor’s school records. The minor with an assistance of counsel may request a rehearing within 3 court days of the detention. If the witness is unavailable, the court may grant a reasonable continuance not to exceed 5 court days. These types of hearings are: (1) William M. Hearing (In re William M.(1970) 3 Cal.3d 16). The court initially detains a minor primarily on the review of a probation report drafted by a deputy probation officer (“DPO"). A William M Hearing allows the minor with the assistance of his/her attorney to confront and cross-examine the DPO. Since, this is a motion filed by the defense, they have the burden to subpoena the DPO. (2) Dennis H. Hearing (In re Dennis H.(1971) 19 Cal.App.3d 350). This is again a motion filed by the defense but this time, the witnesses are the police officers who drafted the reports. The court must find whether there is a reasonable probability that a crime occurred and that the minor committed the crime. If there is a victim(s) of a crime, that individual(s) is not required to testify. The officer’s hearsay testimony is sufficient. If either the DPO or the police officers are not available even after a continuance, the reports used as the basis for detention will not be considered. New evidence shall be required. If none, the minor shall be released from detention. MOTIONS IN ADULT COURT ALSO EXISTS IN JUVENILE A. Lineups: The defense may file a motion for a lineup if there is an issue of identification. Commonly referred to as the “Evans" lineup (Evans v. Superior Court (1974) 11 Cal.3d 617) The court must find good cause to order this lineup which is conducted in juvenile hall. The factors considered by the courts are (1) timely filed (2) identification is an issue (3) reasonable likelihood of mistaken identification may exists which a lineup would tend to resolve. A defense attorney should be present and has the task of “silently observing." B. Discovery: California Rule of Court 1420 provides for “pre-hearing discovery" in juvenile court. The courts construe this rule liberally and both defense and prosecution have a duty to provide discovery – i.e. evidence, documentary or otherwise to each side. In practice, the prosecution provides the defense at arraignment the police, arrest and crime reports without a formal motion. The government also has to disclose statements of witnesses and felony convictions sustained by any material witness. Lastly, any evidence that may be favorable to the defense must be disclosed underBrady. (Brady v. Maryland (1963) 373 U.S. 83). C. Search and Seizure Motions/Search Warrant Motions: Like in adult court, juveniles are afforded the same rights to challenge the validity of a search of their person, property or home. D. “Pitchess" Motions: This is motion that allows the defense to review law enforcement records about the police officers involved. The court must find that the complaints in an officer’s record to be relevant and beneficial to the defense. Disclosure of personnel records of officers is difficult to obtain but if this motion if filed and defense is successful, it may be crucial to developing a proper defense for the minor.\ CONFIDENTIALITY OF JUVENILE PROCEEDINGS Criminal cases are open to the public unless the court specifies otherwise. But in juvenile proceedings, they are closed hearings—only a parent/guardian or relative of the minor is permitted. An exception could apply if there are more than one minor involved in a case and instead of severing the case, it is usually heard together. The court may also make an exception for an individual it deems to have a “direct or legitimate interest in the case." Confidentiality of court records is crucial in the juvenile arena. Inspection of juvenile court files are limited to court personnel, prosecution, the minor’s attorney of record, probation officers. It is not for public scrutiny. Additionally, the contents of the juvenile court files may not be copied or disseminated without a signed court order from the presiding judge of the juvenile court. A defense attorney can assist a minor in sealing juvenile records and/or destruction of such records. After the termination of wardship or after 18, a minor’s records may be sealed. Destruction of records may also be initiated when a minor reaches 21 and for some offenses, at the age of 38. Our children may make a “mistake" during their youth. But it is crucial that such acts do not “mark" them for life. As exemplified above, there are many alternatives to insuring that a minor is adequately defended. Additionally, if the minor’s petition is sustained, there are legal procedures to eradicate their juvenile records since it could seriously impede their educational and employment opportunities in the future.