The text-book definition of hearsay is as follows:  an out of court statement other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

This doesn’t mean just oral statements, it includes written ones too, unless it fits into one of the hearsay exceptions.

Fore example, Lou is on trial for murdering his wife. Todd is on the witness stand and says Tim, who is Lou’s best friend, said that Lou was really angry at his wife and wanted her dead. It just so happens that Lou’s wife Erica was found dead shortly after this conversation.   This is hearsay. It is an out of court statement made by someone other than Todd and is offered for its truth. Lou wanted his wife dead.

However, the statement, even though it is hearsay may still be admissible if it fits into one of the hearsay exceptions (there are lots of them) or if it is not being offered for its truth. which is a stretch in this example .

Hear are the Exceptions:

•  Former Testimony Exception
•  Dying Declaration
•  Statement against Interest
•  Admissions by party opponent
•  Public Records Exception
•  State of Mind — Declaration
•  Past Recollection Recorded (does not require unavailability of the declarant)
•  Prior Consistent Statements (w/in Rule)
•  Excited Utterances
•  Present Sense Impression
•  Business Records
•  Present Physical Condition

I think that I will start approaching the exceptions in separate blog entries as opposed to explaining them all now. It would be an unruly blog entry to do so.

However, if in the interim there are questions about what hearsay is and what are the exceptions, then please feel free to contact the office.

The rules of evidence are no picnic and difficult for even the most seasoned NJ criminal lawyer to understand. If you need any information regarding your hearsay questions, a little research and a phone call is a good place to start.

• (a) Alibi. If a defendant intends to rely in any way on an alibi, within 10 days after a written demand by the prosecutor the defendant shall furnish a signed alibi, stating the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom the defendant intends to rely to establish such alibi. Within 10 days after receipt of such alibi, the prosecutor shall, on written demand, furnish the defendant or defendant’s attorney with the names and addresses of the witnesses upon whom the State intends to rely to establish defendant’s presence at the scene of the alleged offense. The trial court may order such amendment or amplification as the interest of justice requires.
• (b) Failure to Furnish. If the information required in paragraph (a) is not furnished, the court may refuse to allow the party in default to present witnesses at trial as to defendant’s absence from or presence at the scene of the alleged offense, or make such other order or grant such adjournment, or delay during trial, as the interest of justice requires.

As you can see, if the proper procedure is not followed, the defendant can be barred from using the alibi witness as a defense. However, an alibi defense is a little different then some other defense since the defendant is claiming complete innocence. Therefore, it is my opinion that even if proper procedure is not followed initially, the court would likely provide time to cure the error.

Nonetheless, you do not want to be in the position to have your innocence decided by procedural issue.

If you have an alibi defense to your criminal or traffic matter, it is advisable to contact an attorney who is familiar with the court rules and has assisted others who also used an alibi as a defense. This strategy of choosing a New Jersey criminal or traffic lawyer is obviously rational. No matter what the situation may be, you want to have an attorney who has experience handling the type of case you have.

Common problem and a frequent phone call that I receive. Short answer is the more serious the offense, the more likely the situation will be complicated to resolve. For example, you are charged with a disorderly persons offense such as shoplifting or simple assault. You miss the first appearance date for the municipal court and you get notification that there is a warrant for your arrest. In this instance, an attorney may be able to convince the Court to recall the bench warrant and get your case back on the calender without you having to turn yourself in, possibly spend the night in jail and post bail. If you have missed multiple court dates, then it becomes tougher for me to get warrants vacated without turning the defendant in. Remember though, sometimes a judge just wont budge and we may need to make arrangement with the police to turn you in and release you on the same day after we post bail. As opposed to superior court and indictable charges, the municipal court judge will usually attach a bail amount to a arrest/bench warrent

If you are charged with a more serious offense such as cocaine or heroin distribution in the Superior Court, and you miss a court date, the Superior Court judge may not allow your attorney to do a “warrant walk in” and  may insist that you turn yourself in. This means that you will likely spend at least a day in jail before bail is reinstated or the judge sees you to set new bail. Although, as stated, in some instances it is possible to do a walk in if I can clear it with the court first. The problem with Indictable offense and missed court dates is that judges with frequently forfeit the bail that was posted initially and won’t set new bail until they have you in custody. This is the case almost all the time with indictables and missed court dates. This means that you will have to wait in jail before bail gets set again unless a walk in is possible. It really depends on the court and the judge

Sometimes a warrant may issues when you fall behind on time payments. This can be remedied in some instances by simple calling the court and making the payments that your are behind on. If you can’t do this, it may be necessary to post bail, and ask the judge to put you on a new payment schedule or an attorney can sometimes get the court to put you on the calendar for a date without having to turn you in.

If you have a warrant for your arrest in New Jersey, remember that every situation is different and I have handled just about all of them at one time or another. Give me a call and I can give you some guidance.

I recently represented a client charged with Robbery in Essex County. Sometimes, even when the facts are not in your favor, you can structure a defense to entail not only legal but equitable arguments as well. Everyone has a reason as to why they shouldn’t be convicted of a serious offense like robbery, or shouldn’t go to jail. But to convince a prosecutor who hears the same things everyday, and who sees the charges over and over again AND who starts out seeing each defendant as a category of person as opposed to an individual, takes a lot of skill.

In this particular case, my client was facing confinement up easy 6 years if convicted. Robbery is a NERA offense, which means you serve 85% percent of the sentence. The presumptive sentence on a second degree is 7 years.

I was able to use my experience and negotiation skills to get the robbery charge dismissed and my client plead guilty to a disorderly persons shoplifting offense, just a fine, with a year of probation.

He and his family were very happy.

When I first started practicing law, I had the good fortune of working with a meticulous and experienced lawyer. In one instance, he was defending an individual who had been charged with driving without insurance. He told me about the facts of the case and asked me what I would do to defend it. I answered him directly and said, “first I would read the statute.” He smiled and said “good answer.” You must understand the law that affects the case. In the realm of auto liability insurance and driving without it, there are two different sets of laws that apply. One obviously is Title 39 of the Motor Vehicle Code, specifically 39:6B2. The other is Title 17 of the Administrative Code.

To defend a no insurance case, you better have a thorough understanding of the statutory law and the case-law that has interpreted it. Not every cancelled policy is cancelled correctly. See i.e. State v Hochman.

And not every driver is responsible for knowing the car is uninsured.

There are many legitimate defenses to driving without insurance. Putting those defenses together is not always easy. It can mean dealing with insurance companies, subpoenaing witnesses, and putting in time. Lots of lawyer don’t like this. But I have handles many of these cases and know the proper route to take.

The penalties are stiff… one year loss of license. This is more than a DWI in most cases. To make matters worse, much of the time, there is no accident or incident, just the cops running a plate or pulling someone over for something minor and it comes to light that the vehicle is uninsured.

THERE ARE DEFENSES, speak with a lawyer before you go to court and say something to the prosecutor that you may regret.

After doing some research the other day, I found out that I may be one of 20 attorneys nationwide who is certified by Draeger in the proper operation and administration of the Alcotest as well as by NHTSA in the administration of the Standardized Field Sobriety Test.

When I went through this intense training, I had envisioned a time when I would be in trial, cross examining a witness. I was confident that with this training I would be able to recognize and jump on mistakes made by the police officers and Alcotest operators as they testified to the events while on the stand.

Well, several years later, I have realized that vision on numerous occasions and have the trial victories to prove it.

On a recent occasion, during a trial in a Somerset County municipality, my cross examination of the arresting officer was so detailed that the prosecutor objected on the basis that I was offering expert testimony. The judge disagreed immediately and allowed me to continue.

The fact of the matter is that the Alcotest and the Field Sobriety Test are scientific test. As such, there is an exact and precise protocol that must be followed. During a trial, it is my job to raise every bit of doubt possible to discount the credibility of the testifying witness, whether it be a big or small issue.

Just because the prosecutor is unaware of the issue or the issue is difficult to understand does not make it objectionable. In fact, an articulate and well-crafted cross can educate the court and raise reasonable doubt.

Maybe most importantly, I don’t jack up my legal fees even with my trial success and specialized training. Some lawyers are trying to get $5000 or more for first offense DWI (and probably don’t have the credentials). But even with the credentials, this is a ludicrous number. I keep it reasonable and usually have a tiered fee structure so you are not paying up front for what may never happen (like trial).

As an initial point, I specifically do not list the towns when I post results. I feel that this is not professional. However, if you are interested in such things, I will certainly be willing to discuss it with you during a consultation.

In this recent case, my client was facing a second offense DWI conviction. If convicted, he faced a mandatory 2 year loss of license and a potential 90 day jail sentence. Jail is not mandatory in second offenses with the exception of 2 days, which can be served in the IDRC program. However, factually this was the third offense, with a ten year step-down for sentencing purposes. I was concerned that the judge would impose jail if we lost because of this fact.

Regardless, I cross examined the officers involved and was able to establish a reasonable doubt as to the element of operation. By doing this, the state did not get to rely upon the Alcotest readings and the defendant was found not guilty. I also cross examined the officers on the field sobriety test. Although the judge found probable cause for the arrest, it was clear from the oral decision that notwithstanding the operation issue, she was less than convinced on this issue as well, but did not need to reach it because of the operation issue.

My client was extraordinarily happy with the result and will be able to keep his job, his house, etc.

Contrast this with posting the bail directly with the court. When you post the bail to the court, your get that money back at the end of the case if the person shows up for court and the criminal matter is finalized. However, if the bail is set at $75,000, the initial inclination is to pay a bondsman because most people don’t have 75k. Yet, they never consider the possibility of a bail reduction hearing.

You can hire a lawyer to represent the defendant and to do a bail reduction hearing. For example, people sometimes hire me just to do a bail motion (reduction) I usually charge around $1000 for this depending on the complexity. If you do the math, you will see how this can work to your benefit. For example, using the 75K as the number, there are many different options for a lawyer to explore.

First, sometimes it may be possibly for the court to grant a 10% option. If the I convince court to do that, then you could post the $7500 with the court and not lose the money to a bondsman. Along that same line, sometimes I can convince the court to lower the bail and give a 10% option, maybe down to 35k with a 10%. Now the required amount to get him out would be 3500. In either example, you get your money back at the end, and you are only out of pocket $1000 as opposed to $7500.

Sometimes a 10% is not available, but if I can lower the bail, you may be able to post it yourself regardless. Also remember that bondsman take 10%, so if I could take that 75K down to 25 or 35, then the bondman will be looking for $2500 or $3500 as opposed to $7500. Your net gain would be $3000 if you paid to do the bail motion.

If you have more questions, give me a call

In this recent case, we were able to establish that the State may have a difficult time proving its case. This is not to say that if we went to trial that the State would not win. We simply made a good enough argument that the State was willing to say to the Court that they were unsure if it could prove the case because of legal reasons and therefore recommending an alternative outcome.

As a result, my client was able to avoid a criminal conviction and pay only a small fine. This allowed her to keep her job. She was very happy with the result.

This will make it possible (in many circumstances) to put some doubt in the prosecutor’s mind what would happen if the case were to proceed to trial and give the defendant a little leverage.

In this particular instance, I was able to do just that, and get a great result for my client.