Compelling the accused to shine the light upon himself - a Constitutional No-No

By Darren M. Gelber |   Feb. 22, 2013

In a recent opinion, our Superior Court, Appellate Division reaffirmed the long standing principle that someone under investigation for a crime has a constitutional right to not become a witness against himself. While this constitutional principle is usually beyond serious debate, once in a while a factual scenario exists that calls upon the courts to define the contours of the right (for example, see this prior post). In the case of State vs. Mylon Kelsey, a police officer was under investigation for beating someone, while off duty, with a flash light. Investigators zeroed in on Mr. Kelsey because witnesses described the person with the flashlight as having emerged from a vehicle known to belong to him. When witnesses were shown a photograph of Mr. Kelsey, he was identified as the person with the flashlight. These witnesses allegedly saw him take the flashlight from the car, use the flashlight as a weapon to strike people involved in an altercation, and then return the flashlight to his vehicle.

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Topics : Right to Remain Silent, Constitutional Rights | 0 Comments Read More

Defendant’s 6th Amendment right to testify is entitled to more weight than the trial court’s determination to move the trial along

By Darren M. Gelber |   Sep. 24, 2012

A recent opinion by the Superior Court of New Jersey, Appellate Division, reaffirms what most would think would be an uncontroversial proposition: The right of a criminal defendant to testify on his own behalf is entitled to more weight than the trial judge’s desire to move the trial along. However, the fact that this case had to be resolved by an appellate court serves as a reminder that, for the sake of controlling their own calendars, trial courts sometimes make decisions that infringe upon important and fundamental rights. Hopefully, this opinion will serve as a reminder to all of the soldiers in the criminal justice trenches that a defendant’s constitutional rights cannot be the victim of collateral damage in the war to clear cases off of the trial list.

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Topics : Right to Remain Silent, Constitutional Rights | 1 Comment Read More

Court issues opinion on admissibility of testimony given at domestic violence hearings

By Darren M. Gelber |   Aug. 3, 2012

In New Jersey, domestic violence incidents can result in two separate and different types of court cases. A recent opinion from the Superior Court, Appellate Division, has helped to explain how these two separate but parallel court proceedings can sometimes interact with each other.

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Topics : Right to Remain Silent, Constitutional Rights, Domestic Violence | 1 Comment Read More

Passing on Passwords

By Darren M. Gelber |   Jun. 18, 2012

Technology and the LawA recent article in the NJ Law Journal (May 14, 2012, p. 3) piqued the Monitor’s interest as a harbinger of things to come. According to the article, as Morris County prosecutors were preparing to try a criminal defendant facing narcotics charges, they realized that law enforcement officers had seized several cell phones and a Blackberry at the time of the arrest. Interested in learning what information might be contained on these phones, prosecutors applied for and were granted a search warrant authorizing them to inspect the information contained in the phones. However, prosecutors and their investigatory staff apparently ran into trouble when they could not crack a password-protected Blackberry to review the information on it. Therefore, they sought an order compelling the defendant to provide them with the appropriate passcodes to enable them to access the information stored in the Blackberry.

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Topics : smartphones, Right to Remain Silent, Constitutional Rights, John Dell’Italia, Morris County, Electronic Data, law enforcement, NJ Law Journal | 0 Comments Read More

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