2007 - 2009 REPORT OF THE SUPREME COURT COMMITTEE ON THE RULES OF EVIDENCE
January 30, 2009
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TABLE OF CONTENTS
I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION
A. Proposed Amendment to N.J.R.E. 702, Testimony by Experts . . . . . . . . 1
B. Proposed Amendment to N.J.R.E. 102, Purpose and Construction . . . . .3
II. RULE AMENDMENTS CONSIDERED AND REJECTED
A. Amendment to N.J.R.E. 104, Preliminary Questions . . . . . . . . . . . . . . . . 4
B. Amendment to N.J.R.E. 701, Opinion Testimony of Lay Witnesses . . . . .5
C. Amendment to N.J.R.E. 703, Bases of Opinion Testimony by Experts . . 6
D. Amendment to N.J.R.E. 705, Disclosure of Facts or Data Underlying
Expert Opinion; Hypotheses Not Necessary . . . . . . . . . . . . . . . . . . . . . . .7
E. Adoption of N.J.R.E. 706, Court Appointed Experts . . . . . . . . . . . . . . . . .8
F. Amendment to N.J.R.E. 803(c)(2), Excited Utterance Exception to the
Hearsay Rule – State v. Branch, 182 N.J. 255 (2008) . . . . . . . . . . . . . . . 9
G. Sanitization of Prior Convictions, State v. Hamilton,
193 N.J. 255 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
III. MATTERS HELD FOR CONSIDERATION
A. Proposed Amendment to N.J.R.E. 704, Opinion on Ultimate Issue . . . .12
B. Proposed Amendment to the N.J.R.E. 504, Lawyer-Client Privilege . . . 12
IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
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I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION
A. Proposed Amendment to N.J.R.E. 702, Testimony by Experts
The Supreme Court Committee on the Rules of Evidence (Committee), at
the suggestion of its chair, created a subcommittee to study whether N.J.R.E.
702, Testimony by Experts, should be amended to express a clear standard for
the admission of expert testimony. After the subcommittee was formed, the
Committee received letters from the New Jersey Lawsuit Reform Alliance, the
New Jersey Defense Association, the Association of Corporate Counsel, and the
Chemistry Council of New Jersey urging the Committee, among other things, to
amend N.J.R.E. 702 to language similar to the current text of F.R.E. 702, which
had been revised in 2000 in light of Daubert v. Merrell Dow Pharm., 509 U.S.
579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). These organizations claimed
that this change would “ensure that expert evidence admitted in civil trials is the
product of sound methodology and sound scientific principles.” Letter from the
New Jersey Defense Association, November 7, 2008.
For many years, the exclusive standard in New Jersey for the admissibility
of expert testimony was whether there was general acceptance of the expert’s
opinion or theory within the relevant scientific or professional community; a
standard that was originally developed in Frye v. United States, 293 F. 1013
(D.C. Cir. 1923). State v. Moore, 188 N.J. 182, 206-07 (2006); Rubanick v. Witco
Chem. Corp. 125 N.J. 421, 432-33 (1991). In Rubanick, supra, 125 N.J. at 449,
the Supreme Court began to move away from this “general acceptance”
standard, at least for expert testimony on causation in toxic tort cases. There, the
Court held: “[I]n toxic-tort litigation, a scientific theory of causation that has not
yet reached general acceptance may be found to be sufficiently reliable if it is
based on a sound, adequately-founded scientific methodology involving data and
information of the type reasonably relied on by experts in the scientific field.”
Ibid. Ten years later, the Court applied this more relaxed standard of Rubanik to
the admission of expert testimony on causation in a medical malpractice case.
Kemp v. State, 174 N.J. 412, 430 (2002).
Most recently, in Hisenaj v. Kuehner, 194 N.J. 6, 17-18 (2008), the Court
considered the reliability of the expert testimony of a biomechanical engineer
offered by the defendant in a personal injury automobile accident case. The
Court succinctly set forth the standard for determining reliability:
Scientific reliability of an area of research or expertise
may be established in one of three ways. When an
expert in a particular field testifies that the scientific
community in that field accepts as reliable the
foundational bases of the expert's opinion, reliability
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may be demonstrated. Scientific literature also can
evidence reliability where that "literature reveals a
consensus of acceptance regarding a technology." So
long as "comparable experts [in the field] accept the
soundness of the methodology, including the
reasonableness of relying on [the] underlying data
and information," reliability may be established.
Rubanick, supra, 125 N.J. at 451, 593 A.2d 733.
Finally, a party proffering expert testimony may
demonstrate reliability by pointing to existing judicial
decisions that announce that particular evidence or
testimony is generally accepted in the scientific
community.
[Hisenaj, supra, 194 N.J. at 17 (citations omitted,
except Rubanick).]
The three ways of establishing reliability discussed by the Court are
largely drawn from cases discussing the Frye general acceptance standard.
However, the quotation from Rubanick makes clear that that multi-faceted
reliability standard has been added as an alternative to the Frye general
acceptance standard. See also State v. Jenewicz, 193 N.J. 440, 454 (2008)
(applying reliability standards to the admissibility of an expert in a criminal case).
So, the holdings in Rubanick and Kemp would appear to apply not only to
determining causation in toxic tort and medical malpractice cases, but every civil
and criminal case in which expert testimony is offered.
In light of these cases, the Committee decided it is time to explicitly
incorporate this reliability standard evolving from our State’s case law into the
Rules of Evidence. The Committee recommends that N.J.R.E. 702 be amended
to provide (additions underlined):
If scientific, technical or other specialized knowledge
will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion
or otherwise, provided that the basis for the testimony
is generally accepted or otherwise shown to be
reliable.
In the Committee’s opinion, this additional language accurately reflects the
current state of the developing case law in New Jersey. This additional
language continues general acceptance as a sufficient basis for the admission of
expert testimony in New Jersey, but also acknowledges that under Rubanick,
Kemp, and Hisenaj, novel or relatively new theories may be shown to be reliable
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through other means. The Committee believes that explicitly articulating this
reliability standard in the rule will promote consistency in the admission of expert
testimony at the trial level. It will also be more convenient for trial lawyers and
judges to have the standards of admissibility expressed more fully in the text of
the Evidence Rules.
After much deliberation, the Committee rejected the suggestions of the
above-listed organizations to amend N.J.R.E. 702 to follow the 2000 amendment
to F.R.E. 702. The Committee reasoned that if the exact language of F.R.E. 702
was adopted, since the federal rule was intended to incorporate Daubert, it would
create the erroneous impression that the Daubert standard governed the
admission of expert testimony in New Jersey. Further, the Committee was
concerned that New Jersey judges would be too inclined to be guided by the
federal case law interpreting F.R.E. 702 and Daubert. The federal cases, the
Committee thought, are sometimes overly restrictive in the admission of expert
testimony, tending to exclude evidence that, under current New Jersey law,
would be properly admitted as having a reliable basis. See e.g. Edward K.
Cheng & Albert H. Yoon, Does Frye or Daubert Matter? A Study of Scientific
Admissibility Standards, 91 Va. L. Rev. 471, 473 (2005).
In addition, the Committee agreed that a revision of N.J.R.E. 702 that did
not literally track the text of the revised F.R.E. 702 would signal that our state
courts were retaining the prerogative to develop and apply reliability and expert
admissibility concepts in an independent fashion, without automatically following
federal precedents under Daubert or the federal rule. Consequently, a particular
expert’s testimony barred by a federal court under Daubert might still be
admissible in New Jersey under N.J.R.E. 702, or vice-versa.
B. Proposed Amendment to N.J.R.E. 102, Purpose and Construction
The Civil Union Law, L. 2006, c. 103, and the Domestic Partnership Act, L.
2003, c. 246, extend the legal protections of marriage to other types of familial
relationships. N.J.S.A. 37:1-32; N.J.S.A. 26:8A-2. As part of the Civil Union
Law, N.J.S.A. 37:1-33 provides:
Whenever in any law, rule, regulation, judicial or
administrative proceeding or otherwise, reference is
made to "marriage," "husband," "wife," "spouse,"
"family," "immediate family," "dependent," "next of
kin," "widow," "widower," "widowed" or another word
which in a specific context denotes a marital or
spousal relationship, the same shall include a civil
union pursuant to the provisions of this act.
To comply with this statute, and to take into account the existence of civil
unions and domestic partnerships, the Committee recommends that the
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Supreme Court amend N.J.R.E. 102, Purpose and Construction, to add
subsection (b) as follows (additions underlined):
Rule 102. Purpose and Construction
(a) These rules shall be construed to secure fairness
in administration and elimination of unjustified
expense and delay. The adoption of these rules shall
not bar the growth and development of the law of
evidence to the end that the truth may be ascertained
and proceedings justly determined.
(b) As used in these rules, references to “marriage,”
“husband,” “wife,” “spouse,” “family,” “immediate
family,” dependent,” “next of kin,” “widow,” “widower,”
“widowed,” or to any other word or phrase that, in a
specific context, denotes a marital or spousal
relationship, shall include a civil union, as established
by N.J.S.A. 37:1-28 to -32, and a registered domestic
partnership, as established by N.J.S.A. 26:8A-1 to -
10, and the persons in those relationships.
This recommendation is consistent with the one that the Civil Practice
Committee is making to amend R. 1:1-2, Construction and Relaxation, so that the
Rules of Court will be interpreted to include civil unions and domestic
partnerships.
II. RULE AMENDMENTS CONSIDERED AND REJECTED
A. Amendment to N.J.R.E. 104, Preliminary Questions
As noted, the Committee received letters from the New Jersey Lawsuit
Reform Alliance, the New Jersey Defense Association, the Association of
Corporate Counsel, and the Chemistry Council of New Jersey asking that
N.J.R.E. 104 be amended to add a new subsection that would deal exclusively
with expert qualification hearings. Specifically, the organizations proposed the
following addition to N.J.R.E. 104:
(f) Expert Qualification Hearing. If a witness in a
civil matter is testifying as an expert, then upon
motion of a party, the court shall hold a hearing to
determine whether the witness qualifies as an expert
and whether the expert’s testimony satisfies the
requirements of Rule 702. The court should allow
sufficient time for a hearing before the start of trial and
shall rule on the qualifications of the witness to testify
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as an expert and on whether the proposed testimony
satisfies the requirements of Rule 702. The trial
court’s ruling shall set forth the findings of fact and
conclusions of law upon which the order to admit or
exclude the expert evidence is based.
The Committee rejected this proposal. The Committee believed that this
amendment would unduly restrict a trial court’s ability to manage cases. It is
important that a court has the discretion to determine when and if it would be
helpful to hold N.J.R.E. 104 hearings on expert testimony. The proposed
amendment would take that discretion away. The Committee concluded that the
current text of N.J.R.E. 104 and existing case law, see, e.g., Hisenaj v. Kuehner,
supra, 194 N.J. at 23, provides trial courts with the necessary flexibility and
therefore should not be disturbed.
B. Amendment to N.J.R.E. 701, Opinion Testimony of Lay Witnesses
The Committee also considered whether it should amend N.J.R.E. 701,
Opinion Testimony of Lay Witnesses, to conform to the current text of F.R.E.
701. N.J.R.E. 701 provides:
If a witness is not testifying as an expert, the witness’
testimony in the form of opinions or inferences may
be admitted if it (a) is rationally based on the
perception of the witness and (b) will assist in
understanding the witness’ testimony or in
determining a fact in issue.
This rule followed the pre-2000 version of F.R.E. 701. In 2000, the federal
rule was amended to add subsection (c) (additions underlined):
If the witness is not testifying as an expert, the
witness' testimony in the form of opinions or
inferences is limited to those opinions or inferences
which are (a) rationally based on the perception of the
witness, and (b) helpful to a clear understanding of
the witness' testimony or the determination of a fact in
issue, and (c) not based on scientific, technical, or
other specialized knowledge within the scope of Rule
702.
After a discussion, the Committee came to the conclusion that the current
text of N.J.R.E. 701 was adequate and that it was unnecessary to adopt the
changes that had been made to F.R.E. 701.
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C. Amendment to N.J.R.E. 703, Bases of Opinion Testimony by Experts
The Committee considered adding the language from F.R.E. 703, adopted
in 2000, to N.J.R.E. 703. N.J.R.E. 703 provides:
The facts or data in the particular case upon which an
expert bases an opinion or inference may be those
perceived by or made known to the expert at or
before the hearing. If of a type reasonably relied
upon by experts in the particular field in forming
opinions or inferences upon the subject, the facts or
data need not be admissible in evidence.
New Jersey adopted F.R.E. 703 verbatim in 1993. In 2000, additional
language was added to F.R.E. 703 (additions underlined):
The facts or data in the particular case upon which an
expert bases an opinion or inference may be those
perceived by or made known to the expert at or
before the hearing. If of a type reasonably relied upon
by experts in the particular field in forming opinions or
inferences upon the subject, the facts or data need
not be admissible in evidence in order for the opinion
or inference to be admitted. Facts or data that are
otherwise inadmissible shall not be disclosed to the
jury by the proponent of the opinion or inference
unless the court determines that their probative value
in assisting the jury to evaluate the expert's opinion
substantially outweighs their prejudicial effect.
The Committee considered whether it should add the language from the
2000 amendment to the federal rule to allow New Jersey to stay consistent with
the federal provision. The Committee reached a consensus that although the
additional language is consistent with current New Jersey law, there is no problem
with the current version of N.J.R.E. 703. Therefore, the Committee concluded
that no amendment was needed at this time.
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D. Amendment to N.J.R.E. 705, Disclosure of Facts or Data Underlying
Expert Opinion; Hypotheses Not Necessary
The Committee considered whether it should amend N.J.R.E. 705 to
conform to F.R.E. 705. The main difference between the two rules is the third
sentence in N.J.R.E. 705, which followed N.J. Evid. R. 58 verbatim and has no
federal analogue. N.J.R.E. 705 provides:
The expert may testify in terms of opinion or
inference and give reasons therefor without prior
disclosure of the underlying facts or data, unless the
court requires otherwise. The expert may in any
event be required to disclose the underlying facts or
data on cross-examination. Questions calling for the
opinion of an expert witness need not be hypothetical
in form unless in the judge’s discretion it is so
required.
In contrast, F.R.E. 705 provides:
The expert may testify in terms of opinion or
inference and give reasons therefor without first
testifying to the underlying facts or data, unless the
court requires otherwise. The expert may in any
event be required to disclose the underlying facts or
data on cross-examination.
The third sentence in N.J.R.E. 705 reflects the slightly more flexible
approach of the New Jersey evidence rules on the matter of framing questions to
expert witnesses. Nonetheless, the New Jersey rule maintains the discretion of
the judge to require hypothetical questions, if that would be more helpful to the
jury. The Committee concluded that N.J.R.E. 705 should not be amended.
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E. Adoption of N.J.R.E. 706, Court Appointed Experts
The Committee considered whether to adopt a New Jersey rule parallel to
F.R.E. 706, Court Appointed Experts, which provides:
(a) Appointment. The court may on its own motion or on
the motion of any party enter an order to show cause
why expert witnesses should not be appointed, and
may request the parties to submit nominations. The
court may appoint any expert witnesses agreed upon
by the parties, and may appoint expert witnesses of
its own selection. An expert witness shall not be
appointed by the court unless the witness consents to
act. A witness so appointed shall be informed of the
witness' duties by the court in writing, a copy of which
shall be filed with the clerk, or at a conference in
which the parties shall have opportunity to participate.
A witness so appointed shall advise the parties of the
witness' findings, if any; the witness' deposition may
be taken by any party; and the witness may be called
to testify by the court or any party. The witness shall
be subject to cross-examination by each party,
including a party calling the witness.
(b) Compensation. Expert witnesses so appointed are
entitled to reasonable compensation in whatever sum
the court may allow. The compensation thus fixed is
payable from funds which may be provided by law in
criminal cases and civil actions and proceedings
involving just compensation under the fifth
amendment. In other civil actions and proceedings the
compensation shall be paid by the parties in such
proportion and at such time as the court directs, and
thereafter charged in like manner as other costs.
(c) Disclosure of appointment. In the exercise of its
discretion, the court may authorize disclosure to the
jury of the fact that the court appointed the expert
witness.
(d) Parties' experts of own selection. Nothing in this
rule limits the parties in calling expert witnesses of
their own selection.
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In 1991, during the major revision of the New Jersey Rules of Evidence,
the Committee decided not to adopt this federal rule. The Committee reasoned,
at that time, that the power of a court to appoint expert witnesses is one of
practice and procedure, not part of the law of evidence. The Committee stated in
its 1991 rule comment that the court rules and case law adequately provided for
the power of a court to appoint experts.
In revisiting this issue, the Committee reached the same conclusion that it
did in 1991, deciding that a New Jersey analogue to F.R.E. 706 is unnecessary.
F. Amendment to N.J.R.E. 803(c)(2), Excited Utterance Exception to the
Hearsay Rule—State v. Branch, 182 N.J. 338 (2005)
In State v. Branch, 182 N.J. 338, 371-72 (2005), the Supreme Court asked
the Committee to study whether the excited utterance exception to the hearsay
rule should be altered so that such hearsay is admissible only if the declarant
testified or was unavailable. After extensive discussion, the Committee
concluded that there was no need to amend N.J.R.E. 803(c)(2), in light of
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004),
and its progeny. In a criminal trial, under Crawford, if the excited utterance is
testimonial and offered by the State against the accused, then it may not be
admitted unless the accused had had a prior opportunity to cross-examine the
declarant and the declarant was unavailable at trial.
10
E. Sanitization of Prior Convictions, State v. Hamilton, 193 N.J. 255
(2008)
N.J.R.E. 609 permits the introduction of certain prior criminal convictions
of a witness: “For the purpose of affecting the credibility of any witness, the
witness’ conviction of a crime shall be admitted unless excluded by the judge as
remote or for other causes. Such conviction may be proved by examination,
production of the record thereof, or by other competent evidence.” In State v.
Brunson, 132 N.J. 377, 391 (1993), the Supreme Court held that in those cases
where a defendant had previously been convicted of crimes that are the same or
similar to the crime charged, the State may introduce evidence of those prior
convictions limited to the date, degree and number of the offenses.
In State v. Hamilton, 193 N.J. 255, 257 (2008), defendant was convicted
of third-degree drug possession. At trial, defendant asked the court to sanitize
his recent prior convictions for manslaughter and weapons charges, because his
arrest for drug possession took place in connection with the suspicious death of a
woman, who was later found to have died of a drug overdose. Id. at 257-58.
Defendant feared the prior conviction evidence would unduly prejudice the jury
against him. Ibid. The trial court held that it could not sanitize the conviction,
because it was not the same or similar to the one with which defendant was
charged. Id. at 261.
The Court reversed, holding that although sanitization was not mandatory
under Brunson, the trial court had discretionary authority to control undue
prejudice to defendant. Id. at 268-69. The Court then referred to this Committee
the following question:
In holding as we do, we do not suggest at this
juncture that Brunson should be extended
expansively to require sanitization for all prior
convictions or even for a particular subcategory of
offenses, such as those that do not involve
dishonesty, false swearing and the like. See supra at
note 7 (noting that some jurisdictions differentiate
between types of offenses when allowing convictions
to be used for permissible impeachment purposes).
We are ill-equipped in this appeal to consider such
steps, which were not advanced by defendant, and
about which we lack the benefit of the experience and
views of relevant interest groups. However, the
subject of sanitization, and its appropriate use by the
trial courts, would benefit from a full examination. Our
Evidence Rules Committee is well-suited to take up
that task. Accordingly, we refer to the Committee the
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question whether sanitization of prior convictions
should be expanded and, if so, the extent to which the
Committee recommends an expanded category of
mandatory, or of discretionary, sanitization of prior
convictions.
[Brunson, supra, 132 N.J. at 269-70.]
The Committee considered this question at length. It decided not to consult
outside interest groups on this issue, in so much as the relevant groups have
representatives on the Committee. The Committee concluded that it would be difficult
to draft a rule that would set forth the exact parameters of a sanitization rule, either
mandatory or discretionary, and recommends that these parameters continue to be
developed, as they have up to this point, through case law. The Committee also
concluded that the need for a rule revision would be reviewed as experience warrants.
.
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III. MATTERS HELD FOR CONSIDERATION
A. Proposed Amendment to N.J.R.E. 704, Opinion on Ultimate Issue
The Committee held for consideration the issue of whether N.J.R.E. 704
should be amended to add subsection (b), as was added to F.R.E. 704 in 1984
(additions underlined):
(a) Except as provided in subsection (b), [t]estimony
in the form of an opinion or inference otherwise
admissible is not objectionable because it embraces
an ultimate issue to be decided by the trier of fact
(b) No expert witness testifying with respect to the
mental state or condition of a defendant in a criminal
case may state an opinion or inference as to whether
the defendant did or did not have the mental state or
condition constituting an element of the crime
charged or of a defense thereto. Such ultimate
issues are matters for the trier of fact alone.
In 1991, the Committee decided not to include subsection (b) in the New
Jersey rule, because it thought that the subsection was contrary to New Jersey
law. The current Committee, however, decided to revisit this issue in its next
term.
B. Proposed Amendment to the N.J.R.E. 504, Lawyer-Client Privilege
The Committee held for consideration the issue of whether N.J.R.E. 504,
the Lawyer-Client Privilege, should be amended to protect information regarding
whether and when a client consulted with a lawyer.
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IV. CONCLUSION
The members of the Supreme Court Committee on the Rules of Evidence
appreciate the opportunity to serve the Supreme Court in this capacity.
Respectfully submitted,
Hon. Harvey Weissbard, J.A.D. (ret.), Chair
Hon. Sylvia B. Pressler, P.J.A.D. (ret.), Vice-Chair
Wanda M. Akin, Esq.
Akinyemi T. Akiwowo, Esq.
Robert E. Bonpietro, Esq.
Hon. Theodore I. Botter, P.J.A.D. (ret.)
John C. Connell, Esq.
Norma R. Evans, Esq.
Prosecutor Thomas S. Ferguson
Professor Kimberly Ferzan
Benjamin Goldstein, Esq.
Hon. Jamie D. Happas, J.S.C.
Hon. James C. Heimlich, J.S.C.
James Hely, Esq.
Hon. Sherry Hutchins Henderson, J.S.C.
Hon. Paul Innes, J.S.C.
Hon. Michael Patrick King, P.J.A.D. (ret.)
Michelle Lebovitz Lamar, Esq.
Hon. Thomas M. McCormack, J.S.C.
Professor Denis F. McLaughlin
Hon. Dennis R. O’Brien, J.S.C.
Christine D. Petruzzell, Esq.
Daniel J. Pomeroy, Esq.
Jacqueline M. Printz, Esq.
Joseph J. Rodgers, Esq.
Hon. Garry S. Rothstadt, J.S.C.
Hon. Jack M. Sabatino, J.A.D.
Rubin M. Sinins, Esq.
William B. Smith, Esq.
Hon. Edwin H. Stern, P.J.A.D.
Christopher Struben, Esq.
Hon. Mark A. Sullivan, Jr., J.S.C.
John Vazquez, Esq.
Alan L. Zegas, Esq..
Carol Ann Welsch, Esq., Evidence Committee Staff
Sunday, March 8, 2009
Proposed Rule Changes-Report of the Supreme Court Criminal Practice Committee
Report of the Supreme Court Criminal Practice Committee - Proposed Rule Changes
2007-2009 Term
TABLE OF CONTENTS February 17, 2009
Page
- 1 -
A. Proposed Rule Amendments Recommended for Adoption................................1
1. Post-Conviction Relief Rules...................................................................................1
2. R. 2:5-3(d) and R. 3:22-6(c) – Ordering Transcripts in Municipal Appeals and
Appeals from Second or Subsequent Denials of Petitions for Post-Conviction
Relief......................................................................................................................59
3 R. 2:7-2(d) – Attorney of Record...........................................................................63
4. R. 3:30 – Expungement Fees..................................................................................66
B. Non-Rule Recommendations...............................................................................68
1. Amendments to the Main Plea Form – Immigration Status...................................68
2. Amendments to the Main Plea Form – Interstate Compact for Adult Offender
Supervision.............................................................................................................70
3. Presentence Reports................................................................................................75
4. Ex Parte Post-Trial Communications Between Judges and Juries.......................105
5. Transmission of Discovery in Criminal Cases.....................................................118
C. Matters Previously Sent to the Supreme Court...............................................119
1. Bail Source/Sufficiency Hearings; Implementation of N.J.S.A. 2A:162-13
R 3:26-1 and new R. 3:26-8 ................................................................................119
2. Follow-Up Report on The Implementation of the Recordation of
Custodial Interrogation.........................................................................................120
D. Rule Proposals and Other Issues Considered and Rejected..........................123
1. Alibi Rule – State v. Bradshaw – R. 3:12-2.........................................................123
2 Bail Forfeiture Rule – R. 3:26-6...........................................................................124
3. Electronic Recordation of Custodial Interrogations – R. 3:17.............................126
4. Hypnotically Refreshed Testimony – State v. Moore..........................................128
5. Defendant’s Waiver of Presence at Trial - State v. Luna – R. 3:20-2 .................129
6. State v. McAllister................................................................................................131
7. Conditional Discharge Appeals – R. 3:23-2.........................................................135
8. State v. Kent.........................................................................................................138
E. No Action Necessary...........................................................................................140
1. Comprehensive Review of Existing Plea Forms..................................................140
2. Public Access to Court Records...........................................................................142
F. Matters Held for Future Consideration...........................................................143
1. Bail Review Procedures.......................................................................................143
TABLE OF CONTENTS
Page
- 2 -
2. Criminal Defendants and Civil Commitment.......................................................144
3. Disposition of Municipal Court Matters in Superior Court.................................146
4. Model Jury Selection Questions for Criminal Cases...........................................148
5. Municipal Appeals................................................................................................150
6. Nicole’s Law – N.J.S.A. 2C:14-2 and N.J.S.A. 2C:44-8.....................................151
7. Preservation of Evidence......................................................................................152
8. Pretrial Intervention Guidelines...........................................................................153
9. Recording Requirements for Out-of Court Identifications..................................154
10. Review of Verdict Sheets at Charge Conference.................................................155
11. R. 3:14-1(j) – Technical Amendment...................................................................156
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A. Proposed Rule Amendments Recommended for Adoption.
1. Post-Conviction Relief Rules
a. Background
During the 2002-2004 term, the Committee discussed ways in which to alleviate
the statewide delays in scheduling and resolving petitions for post-conviction relief
(PCR). The Committee also discussed State v. Rue, 175 N.J. 1 (2002), in which the New
Jersey Supreme Court held that PCR counsel must advance even those arguments raised
by their clients that counsel believes to be without merit. It was suggested that the
volume of PCR petitions being filed affected the ability of the Public Defender’s Office
to identify the petitions raising issues for which representation would be warranted and
for which relief would likely be granted. It was also suggested that delays occurred when
some of the Criminal Division Manager’s Offices forwarded cases to the Public Defender
and when the Public Defender’s Office assigned counsel. Additionally, it was suggested
that once counsel was assigned, there were delays in the receipt transcripts and case files.
Another issue discussed was whether R. 3:22-10 should be amended to expressly allow
oral argument by defense counsel on a first petition for post-conviction relief. See State
v. Mayron, 344 N.J. Super. 382 (App. Div. 2001).
As both the Public Defender’s Office and the Conference of Criminal Presiding
Judges were reportedly in the process of drafting proposals to address the backlog of
post-conviction relief cases, the Committee postponed recommending any possible
solutions during the 2002-2004 term. The Committee revisited the topic of PCR issues at
2
the beginning of the 2004-2007 term. At that time, the Committee considered whether to
create a Subcommittee to look into the possibility of revising the PCR rules in light of
Rue to limit, expand or clarify the rules regarding the scope of PCR issues that assigned
counsel must raise on behalf of their clients. The Public Defender, however, agreed with
Rue and its interpretation, and did not support a change in the rules, especially one that
would narrow the constitutional claims that a defendant could raise in a PCR petition.
The Committee then discussed whether the Office of the Public Defender should
be required to represent a defendant on a first PCR petition. It was reported that the
Public Defender supported such a requirement, because if all of the defendant’s claims
were raised in the first PCR petition there would be no need for subsequent petitions to be
filed, or alternatively, subsequent petitions could be handled via a form letter.
After a lengthy discussion, the Committee reached an impasse regarding how to
proceed. It agreed to revisit the issue at a later time, when the Conference of Criminal
Presiding Judges issued its PCR report. On June 22, 2005, the Conference of Criminal
Presiding Judges sent its Report of the Conference of Criminal Presiding Judges on
Revisions to The Rules Governing Post Conviction Relief (PCR) and Establishment of
PCR Time Goals to the Acting Administrative Director of the Courts for discussion by
the Judicial Council, which highlighted the Conference of Criminal Presiding Judges’
concerns that defendants who had filed petitions for post-conviction relief have had to
wait for unacceptable periods of time to have their petitions resolved. The Conference’s
3
Report also outlined concerns with the PCR process, set forth steps taken to address the
delays and provided recommendations to ameliorate the problem.
On July 12, 2006, the New Jersey Supreme Court decided State v. Webster, 187
N.J. 254 (2006). In Webster, the Court considered “whether PCR counsel violated R.
3:22-6(d) by failing to advance all of the issues raised by defendant.” Id. at 257. The
Court held that “the brief must advance the arguments that can be made in support of the
petition and include defendant’s remaining claims, either by listing them or incorporating
them by reference so that the judge may consider them.” The Court referred the matter to
the Criminal Practice Committee, asking that it propose a revision to R. 3:22-6(d) to
reflect the views expressed in the opinion. Id. at 258. In light of Webster, a
Subcommittee was formed to draft a rule amendment. The Subcommittee consisted of
judges, representatives from the Office of the Public Defender, representatives from the
Division of Criminal Justice and was staffed by the Administrative Office of the Courts.
Additionally, since the current court rules governing the handling of PCRs were not being
followed, largely because of the backlog situation, the Subcommittee was also charged
with reviewing the entire PCR process. The recommendations contained in the
Conference of Criminal Presiding Judges’ PCR report were used as a starting point for
discussion.
The Subcommittee conducted an expansive review of the post-conviction relief
rules and the current practice used by prosecutors, defense attorneys and the court. The
Subcommittee prepared a detailed report recommending significant changes to the court
4
rules governing post-conviction relief. The Committee reviewed the Subcommittee’s
recommendations and adopted most, with some revisions. The following rule proposals
focus on developing procedures to allow the court to dismiss, without prejudice, a
deficient petition for post-conviction relief and allow a defendant to re-file it as a
cognizable first post-conviction relief application with assignment of counsel. The
proposals also clarify that post-conviction motions for reconsideration of a sentence
should be filed pursuant to R. 3:21-10. This proposal is designed to ensure that a motion
for reconsideration of a sentence is not misinterpreted to be a first post-conviction relief
application. The proposed amendments would also provide that upon any motion filed
pursuant to R. 3:21-10, “the matter may be referred to the Office of the Public Defender
who shall represent the defendant as assigned by the judge.” This proposal is intended to
permit the court to assign counsel for difficult or possible meritorious issues “pursuant to
the court rules” in compliance with the Public Defender Act. See N.J.S.A. 2A:158A-5.
Additionally, the proposals modify the time frames and limitations to file petitions for
post-conviction relief.
b. Proposed Rule Amendments
(1) R. 1:3-4. Enlargement of Time
R. 1:3-4(c) sets forth matters where a fixed time for doing an act may not be
enlarged. The Committee is proposing a recommendation to amend paragraph (c) of this
rule to make clear that the general time limits to file a petition for post-conviction relief
as set forth in R. 3:22-12 cannot be enlarged or relaxed except as specifically set forth in
5
R. 3:22-12(a). This proposal is made in conjunction with a proposal to add a new
paragraph (c) to R. 3:22-12 to state that the time limitation set forth in R. 3:22-12 shall
not be relaxed, except as provided therein.
(2) R. 3:21-4. Sentence
R. 3:21-4 governs sentencing. Paragraph (h) of the rule explains the notification
to defendants of the right to appeal. The Committee believes that because it is proposing
changes to the time limitations to file petitions for post-conviction relief, that when being
sentenced defendants should be made aware of these new, more stringent time limitations
for filing post-conviction relief petitions. The proposal is to amend paragraph (h) of the
rule to state that after imposing the sentence, the court shall inform the defendant of the
time limitations for filing petitions for post-conviction relief. The Committee suggests
also amending the caption of paragraph (h) to include notification to file a petition for
post-conviction relief.
(3) R. 3:21-10. Reduction or Change of Sentence
The Committee is proposing that R. 3:21-10 be amended to include a new
paragraph (b)(5), which would permit a motion to reduce or change a sentence to be filed
and an order to be entered “correcting a sentence not authorized by law, including the
Code of Criminal Justice.” Along with this proposal, the Committee is recommending an
amendment to paragraph (c) of R. 3:21-10 that would provide that “upon any motion
filed pursuant to this rule, the matter may be referred to the Office of the Public
Defender, who shall represent the defendant as assigned by the judge.”
6
(a) New paragraph (b)(5)
The proposal to add a new paragraph (b)(5) to R. 3:21-10 is designed to include
the procedures to file post-conviction motions to reduce or change a sentence, pursuant to
R. 3:21-10, and PCR claims alleging that the sentence imposed was “in excess of or
otherwise not in accordance with the sentence authorized by law,” pursuant to R. 3:22-
2(c), into one rule. There are several reasons for this proposal. First, the Committee
recognized that often pro se defendants are not aware of, or may not fully understand, the
different procedures for filing PCR applications pursuant to R. 3:22-1 to 3:22-12 and
motions to change or reduce sentences pursuant to R. 3:21-10(b). As a result, the courts
often receive PCR applications, filed pursuant to R. 3:22-1 to 3:22-12, which seek relief
that falls within R. 3:21-10. For example, it was pointed out that a defendant may
incorrectly file a motion to change a custodial sentence to permit entry into a drug
rehabilitation program as a PCR petition pursuant to R. 3:22-2(c), rather than as a motion
for reconsideration of a sentence pursuant to R. 3:21-10(b)(1). Consequently, when a
motion for reconsideration of a sentence is incorrectly filed as a PCR application, the
court is faced with dismissing the petition as not cognizable under the PCR rules,
considering the motion as if it were correctly filed under R. 3:21-10(b) or forwarding the
matter to the Public Defender’s Office for the assignment of counsel.
Several problems arise with each of these options. First, the PCR rules are
interpreted liberally regarding the assignment of counsel for a defendant’s first PCR
petition; however, the rules require a showing of good cause for counsel to be assigned
7
for second or subsequent petitions. If a defendant misfiles a sentencing reconsideration
motion as a PCR petition and the court dismisses the petition as not cognizable under the
PCR rules, the petition could be “counted” as the defendant’s first PCR application
triggering the assignment of counsel. Under this scenario if the defendant filed a
subsequent PCR application, counsel would not be assigned absent a showing of good
cause. The Committee agreed that this result was undesirable if the initial PCR petition
could have properly been filed as a motion to reconsider the sentence under R. 3:21-10.
Alternatively, if the court considers a misfiled application as if it were correctly
filed pursuant to R. 3:21-10, a question arises whether the court has authority to
“convert” a PCR petition to a R. 3:21-10 motion. The Committee also discussed whether
the Public Defender’s Office had the responsibility to seek relief, such as filing a motion
to amend the PCR petition or filing a motion to dismiss the petition without prejudice so
that the defendant could re-file the matter pursuant to R. 3:21-10.
Furthermore, the Committee recognized that there is no court rule requiring the
Public Defender to represent defendants on post-conviction motions filed pursuant to R.
3:21-10. Therefore, by referring the case to the Public Defender’s Office for assignment
of counsel in a matter that should have been filed pursuant to R. 3:21-10, the court would
be ordering the assignment of counsel in cases where representation is not statutorily
required.3 See N.J.S.A. 2A:158A-5.
3
The Committee is recommending amendments to R. 3:21-10(c) to address the assignment of counsel in post-
conviction sentencing motions.
8
In light of these concerns, the Committee believes that when no other grounds for
post-conviction relief are asserted, it is appropriate for defendants to file sentencing
claims pursuant to R. 3:21-10. The proposal to amend R. 3:21-10(b)(5) includes
language permitting the filing of a motion to correct “a sentence not authorized by law,
including the Code of Criminal Justice.” The Committee believes that this proposal will
make it easier for the courts and the attorneys to appropriately resolve sentencing matters
in a timely fashion.
The Committee has concluded, however, that if a PCR petition sets forth an
allegation that a sentence imposed is in excess of or otherwise not in accordance with the
sentence authorized by law, along with other grounds cognizable under R. 3:22-2(a), (b)
or (d), the application should be filed pursuant to the rules governing post-conviction
relief and the sentencing allegations should be considered as part of the PCR application.
This option will allow the court to consider the entire PCR petition, including sentencing
claims, in one filing. The Committee is proposing to amend R. 3:22-2(c) accordingly.
(b) Discretionary Assignment of Counsel
The Committee recognized that while defendants are entitled to counsel for the
first PCR petition, R. 3:22-6(a), there is currently no court rule requiring the Public
Defender to represent defendants who file motions to reconsider a sentence pursuant to R.
3:21-10. Nonetheless, occasionally post-conviction motions to reduce or change a
sentence involve complex legal issues that would warrant the assignment of counsel.
Representatives from the Office of the Public Defender pointed out that their statutory
9
authority, N.J.S.A. 2A:158A-5, mandates that their office represent defendants on “any
direct appeal from conviction and such post-conviction proceedings as would warrant the
assignment of counsel pursuant to the court rules.”4 The Public Defender has agreed that
pursuant to N.J.S.A. 2A:158A-5, if a court rule required the assignment of counsel on a
motion filed pursuant to R. 3:21-10, the Public Defender’s Office would comply with it.
In light of the Committee’s proposal to add procedures for challenging a sentence
not authorized by law to R. 3:21-10(b)(5), the Committee is also recommending a
modification to paragraph (c) of R. 3:21-10 to provide that counsel may be assigned by
the judge where warranted and if such assignment is made, the Public Defender shall
represent the defendant.
With the addition of paragraph (b)(5), the other subsections of R. 3:21-10(b) will
be renumbered accordingly, and the proposed new language of paragraph (c) will permit
counsel to be assigned by the judge for difficult or possibly meritorious issues.
(4) R. 3:22-2. Grounds
In correlation with the proposed amendments to R. 3:21-10, the Committee is
proposing to amend R. 3:22-2(c) to provide that a PCR petition is cognizable if it is based
upon the ground that the:
[i]mposition of sentence in excess of or otherwise not in
accordance with the sentence authorized by law if raised
together with other grounds cognizable under paragraph (a),
(b), or (d) of this rule. Otherwise a claim alleging that the
imposition of sentence in excess of or otherwise not in
4
R. 3:22-6(a) provides that defendants are entitled to counsel for representation for a first petition for post-
conviction relief.
10
accordance with the sentence authorized by law shall be filed
pursuant to R. 3:21-10(b)(5).
This proposal will permit the court to consider claims that the sentence imposed
was in excess or otherwise not in accordance with the law, together with other grounds
for relief that are cognizable under paragraphs (a), (b) or (d) of R. 3:22-2. Otherwise, if
the application only sets forth grounds that the sentence was excessive or otherwise not in
accordance with the law, a motion should be filed pursuant to R. 3:21-10(b)(5), as
proposed, and the court will have the discretion to assign counsel.
(5) R. 3:22-3. Exclusiveness of Remedy; Not Substitute for
Appeal or Motion
The Committee considered a proposal to eliminate the bar contained in the last
sentence of R. 3:22-3, which precludes the filing of a petition for post-conviction relief
while appellate review is available. It was suggested that if a petition for post-conviction
relief is filed while an appeal is pending, the Criminal Division Manager’s office should
notify the Appellate Division Clerk’s Office of the filing. The Appellate Division Clerk’s
Office would then adjourn consideration of the pending appeal so that the Appellate
Division could consider the direct appeal of the alleged trial errors and the appeal of the
post-conviction relief application at the same time. The purpose of the suggestion was to,
in most cases, eliminate the need for the Appellate Division to consider the same files on
11
two or more separate occasions.5 The Committee considered adding new language as the
last sentence of the paragraph to state:
“Nothing in this Rule, however, shall prohibit the filing of a
petition without first pursuing appellate review if the issues
are raised in accordance with R. 3:22-4.”
The Committee ultimately determined not to include this language in the rule.
While some members of the Committee agreed that the proposal could eliminate
the need for the Appellate Division to consider duplicate files, some were concerned that
drafting a rule permitting the filing of a post-conviction relief petition while an appeal is
pending may add additional time to the appellate process. For instance, since a defendant
must file an appeal within 45 days from the entry of a final judgment, the direct appeal
could be briefed and ready to be heard and then the defendant could file a petition for
post-conviction relief, which would delay the resolution of the appeal. After the post-
conviction relief matter is resolved, the direct appeal may have to be re-briefed to address
the issues raised in both the direct appeal and the post-conviction relief appeal. As a
result, there may be a delay in time for an appeal to be heard and resolved, since the
appeal would be stayed pending the resolution of the petition for post-conviction relief in
the Law Division.
The Committee also considered a suggestion that the proposed rule amendments
will not fix the concern with delays in resolving post-conviction applications. It was
asserted that most PCR claims involve allegations of ineffective assistance of counsel,
5
Along with this suggestion, it was also suggested that R. 3:22-12 be amended to require that a post-conviction
relief application be filed within a year after the sentence is imposed.
12
and therefore, the PCR hearings should be held before appellate briefs are filed in a
particular case. The suggestion was that when a defendant is informed of the right to
appeal, the defendant should also be informed that if he has any complaints about his
lawyer, he should either state those complaints or state that he has such complaints as part
of the Notice of Appeal, which will cause the Appellate Division to remand the case to
resolve the PCR claims.
After a discussion, the Committee concluded that staying an appeal to consider a
petition for post-conviction relief or combining a direct appeal with a PCR appeal could
cause a significant delay in the resolution of the appeal and that it would likely result in
more complex appeals. While the proposals could eliminate duplicate efforts of the
courts, prosecutors and defense attorneys, the Committee was unsure if the proposal
would help accomplish the objective of revising the PCR rules to meet a specified time
goal. Ultimately, the Committee believes that the rule should not be amended to allow a
PCR application to be briefed and to toll the time to resolve the direct appeal. The
Committee also believes that advising a defendant of the ability to raise PCR claims at
the time of sentencing would invite numerous complaints, which may not be precluded
by a subsequent filing of a PCR application.
Finally, the Committee is recommending deleting the word “available” at the end
of the paragraph and replacing it with the word “pending. This proposal will clarify
when a petition is barred from being filed during the appellate process and is consistent
with proposed new R. 3:22-6A(2), which would require that the Public Defender notify
13
the court if a direct appeal, including a petition for certification, is pending so that the
court can dismiss the post-conviction relief petition without prejudice.
(6) R. 3:22-4. Bar of Grounds Not Raised in Prior Proceedings;
Exceptions
The Committee is recommending several amendments to R. 3:22-4 designed to
curtail the filing of repeated post-conviction relief applications arising out of the same
conviction, and to encourage defendants to include all post-conviction relief claims in
their original petitions or be precluded from doing so at a later date, except where
circumstances warrant an exception to this general rule. These amendments further
impose corresponding limitations on defendants’ ability to raise grounds for post-
conviction relief which were not asserted in a prior proceeding.
The amendments incorporate the Supreme Court of New Jersey’s decision in State
v. Ways, 180 N.J. 171, 192 (2004), regarding the use of newly discovered evidence as a
basis for post-conviction relief. As the Court held in Ways, the requirement that newly
discovered evidence “must not have been discoverable earlier through the exercise of
reasonable diligence” operates to “encourage defendants and attorneys to act with
reasonable dispatch in searching for evidence.” Ibid.; cf. R. 4:50-1(b) (addressing motion
for new trial on basis of newly discovered evidence).
(a) R. 3:22-4(a)
The Committee is proposing to designate paragraph (a) to add explanatory
language to the rule describing the bar of grounds for post-conviction relief that have not
14
been raised in a prior proceeding. Proposed paragraph (a)(1) includes the current
language of the rule which provides that a ground for post-conviction relief would be
barred unless the court found “that the ground for relief not previously asserted could not
reasonably have been raised in any prior proceeding.” The proposal includes new
explanatory language that “[a] ground could not reasonably have been raised in a prior
proceeding only if defendant shows that the factual predicate for that ground could not
have been discovered earlier through the exercise of reasonable diligence.”
Proposed paragraph (a)(2) includes the current language of the rule which
provides that a ground for post-conviction relief would be barred unless the court found
“that enforcement of the bar would result in fundamental injustice.” Members from the
Division of Criminal Justice proposed to include a definition of “fundamental injustice”
in the rule as follows:
A fundamental injustice occurs only when the facts
underlying the ground for relief, if proven and viewed
in light of the evidence as a whole, would raise a
reasonable probability of defendant’s innocence.
The Committee recommends leaving the term “fundamental injustice” undefined
being of the view that the interpretation of this term is best determined by caselaw. Thus,
a definition of “fundamental injustice” is not included in the rule proposal.
Proposed paragraph (a)(3) includes the current language of the rule which states
that a ground for post-conviction relief would be barred unless the denial of relief would
be contrary to the Constitution of the United States or the State of New Jersey. The
15
Committee recommends amending this language to provide that a ground for post-
conviction relief would be barred unless the court found that a denial of relief would be
contrary to “a new rule of constitutional law” under either the Constitution of the United
States or the State of New Jersey. The Committee also recommends adding explanatory
language to the rule which states that:
A denial of relief would be contrary to a new rule of
constitutional law only if the defendant shows that the claim
relies on a new rule of constitutional law, made retroactive to
defendant’s petition by the United States Supreme Court or
the Supreme Court of New Jersey that was unavailable during
the pendency of any prior proceedings.
A concern was raised of whether under this explanatory language relief could be
denied if a new rule of constitutional law was established by the Appellate Division that
was not considered by the New Jersey Supreme Court or established by a federal district
or federal circuit court that was not considered by the United States Supreme Court.
The Committee was informed that the proposed language, limiting relief to cases
involving a new rule of constitutional law established by the United States Supreme
Court or the New Jersey Supreme Court is based on federal habeas corpus jurisprudence.
Nonetheless, some members were concerned with prohibiting a trial court reviewing an
application for a second or subsequent post-conviction relief application from considering
New Jersey Appellate Division Cases and federal district court or circuit court cases that
may be widely followed, but never reach the United States Supreme Court or New Jersey
Supreme Court. Also, some members expressed concern with preventing the trial court
16
from considering federal circuit court opinions when there is a split in the federal circuit
courts that is not resolved by the United States Supreme Court.
An extensive discussion ensued, which resulted in a vote on three alternatives: (1)
add “or Superior Court, Appellate Division” after “Supreme Court of New Jersey” in the
explanatory paragraph of the rule proposal which would allow the trial court to consider
cases decided by the Appellate Division in determining if a bar on a second or subsequent
petition for post-conviction relief applies; (2) keep the proposed language, as is, which
would allow the trial court to consider New Jersey Supreme Court and United States
Supreme Court cases in determining if a bar on second or subsequent petitions for post-
conviction relief applied; or (3) delete the explanatory paragraph, which would allow the
trial court to consider cases, other than those decided by the New Jersey Supreme Court
or United States Supreme Court in making this determination. The Committee conducted
an initial vote: 5 members were in favor of adding “or Superior Court, Appellate
Division” to the explanatory paragraph of the rule; 11 members were in favor of leaving
the proposed language as is; 8 members were in favor of deleting the explanatory
paragraph. As a final vote 14 members were in favor of leaving the proposed language as
is, which would allow the trial court to consider New Jersey Supreme Court and United
States Supreme Court decisions in determining if a bar on a second or subsequent petition
for post-conviction relief applies, and 7 members were in favor of deleting the
explanatory paragraph.
17
(b) R. 3:22-4(b)
The Committee is proposing to add a new paragraph (b) to the rule, which creates
a two-prong analysis to consider if the bar of second and subsequent petitions for post-
conviction relief applies. This proposal incorporates the New Jersey Supreme Court’s
decision in State v. Ways, 180 N.J. 171, 192 (2004) regarding the use of newly
discovered evidence as a basis for post-conviction relief. This proposal is designed to
limit the scope of matters for which a second or subsequent petition for post-conviction
relief can be granted. To that end, it provides that a second or subsequent petition for
post-conviction relief shall be dismissed unless it is timely pursuant to R. 3:22-12(a)6 and
it alleges on its face either:
(A) that the petition relies on a new rule of
constitutional law, made retroactive to defendant’s
petition by the United States Supreme Court or the
Supreme Court of New Jersey, that was unavailable
during the pendency of any prior proceedings; or
(B) that the factual predicate for the relief sought could
not have been discovered earlier through the exercise
of reasonable diligence, and the facts underlying the
ground for relief, if proven and viewed in light of the
evidence as a whole, would raise a reasonable
probability that the relief sought would be granted.
In light of the recommended addition of paragraph (b), the Committee also recommends
adding the phrase “Bar of Second or Subsequent Petitions” to the caption of the rule.
6
R. 3:22-12 addresses the general time limitations to file a petition for post-conviction relief.
18
(7) R. 3:22-6. Indigents; Waiver of Fees; Assignment of Counsel,
and Grant of Transcript; Assigned Counsel May Not Withdraw
(a) R. 3:22-6(a)
The Committee is recommending that post-conviction relief petitions be
prescreened by the criminal division manager’s office to ascertain whether the petition is
cognizable under R. 3:22-2, and if it is, whether it meets the requirements of R. 3:22-8.
The purpose of the prescreening is to assist the trial court in determining whether the
rules have been complied with. If not, the deficiencies can be set forth in the court’s
order sent to the Office of the Public Defender for assignment of counsel. The second
proposal being made is to make the assignment of counsel be via a court order. The third
recommendation is to require that the assignment orders contain the name of the judge to
whom the case is assigned and set a place and date for a case management conference.
This latter requirement, that the order contain a date for the next event, would be
consistent with the practice in the Criminal Division for all other events. Finally, an
amendment was proposed to require that the court set forth the reasons for its findings
that a petition is not cognizable under R. 3:22-2, or that a petition does not meet the
requirements of R. 3:22-8 and dismiss the petition.
Representatives from the Office of the Public Defender sought to add language to
paragraph (a) of the rule to provide that the court shall set a place and date for a case
management conference not less than 90 days after the matter is referred to the Office of
the Public Defender. The Committee recognized that the Administrative Office of the
19
Courts has promulgated orders to be used when a trial judge refers a petition for post-
conviction relief to the Office of the Public Defender for assignment of counsel.7 The
orders set forth time frames for the assignment of counsel and for assigned counsel to file
an appearance with the court. The orders also require the court to set the date for a case
management conference. However, the orders do not contain a specific time frame for
which the case management conference must occur. The Committee rejected adding time
frames to the rule to set the case management conference. Instead, it opted to give the
trial judge discretion to schedule the case management conference within a reasonable
time period.
The Committee agreed to amend language in the second sentence of paragraph (a)
which provides that “a defendant who is not represented by the Office of the Public
Defender” may complete an indigency form to “a defendant who wants to be represented
by the Office of the Public Defender.” This language is designed to address the situation
where a defendant may not have been eligible for a Public Defender during trial or on
appeal, but would like to allege indigency for representation on post-conviction relief.
(b) R. 3:22-6(b)
Addressing the assignment of counsel on a second or subsequent petition for post-
conviction relief, paragraph (b) presently provides that when a defendant files a second or
subsequent petition for post-conviction relief, the matter shall be referred to the Public
Defender’s Office for assignment of counsel upon a showing of good cause. The
7
See Memorandum to Assignment Judges, Criminal – Post-Conviction Relief – Form Order Assigning Counsel,
from Hon. Philip S. Carchman, Acting Administrative Director of the Courts (May 3, 2005).
20
Committee recommends amending paragraph (b) to define “good cause” for the
assignment of counsel on a second or subsequent petition for post-conviction relief (in
the last sentence of paragraph (b)) as follows:
For purposes of this section, good cause exists only
when the court finds that a substantial issue of fact or
law requires assignment of counsel and when a second
or subsequent petition alleges on its face a basis to
preclude dismissal under R. 3:22-4.
This proposed amendment makes clear that such a showing of “good cause” for
assignment of counsel on a second or subsequent petition requires, at a minimum, a
showing that defendant’s petition satisfies one of the exceptions to dismissal found in R.
3:22-4(b), as amended.
(c) R. 3:22-6(d)
This proposal was designed to help resolve conflicts between the requirements of
State v. Rue, 175 N.J. 1 (2002) and State v. Webster, 187 N.J. 254 (2006) for counsel to
include claims put forth by defendant in the petition, regardless of merit, and an
attorney’s ethical obligation under R. 3.1 of the Rules of Professional Conduct to refrain
from raising frivolous claims.
The Committee first recommends amending the first sentence of paragraph (d) to
state that the court will not substitute new counsel at defendant’s request, except upon a
showing of good cause and notice to the Public Defender. Representatives from the
Public Defender’s Office indicated that some defendants file motions for the court to
replace or substitute counsel because of discontent with counsel. This proposal is
21
designed to discourage the filing of such motions and to notify the Public Defender’s
Office if the court is substituting counsel or considering such a motion.
The proposed amendments to the last few sentences of R. 3:22-6(d) respond to the
decisions of the Supreme Court of New Jersey in State v. Rue, 175 N.J. 1 (2002) and
State v. Webster, 187 N.J. 254 (2006). In Rue, the Court interpreted R. 3:22-6(d) and
held that “[a]t the very least, where communication and investigation have yielded little
or nothing, counsel must advance the claims the client desires to forward in a petition and
brief and make the best available arguments in support of them.” State v. Rue, 175 N.J.
at 19. In Webster, the Court ruled that defense counsel had no obligation to advance any
claim put forth by defendant for which counsel “can formulate no fair legal argument in
support.” State v. Webster, 187 N.J at 257. However, the Webster Court required
defense counsel to include such claims in the petition “either by listing them or
incorporating them by reference so that the judge may consider them.” Ibid. As the
Court held, this would “serve to preserve defendant’s contentions for federal exhaustion
purposes.” Ibid.
The Committee proposes to amend the last few sentences of paragraph (d) to help
resolve conflicts between the requirements set forth in Rue and Webster for counsel to
raise and incorporate any claims put forth by their clients, regardless of merit, and an
attorney’s ethical obligation under R. 3:1 of the Rules of Professional Conduct to refrain
from raising frivolous claims. The Committee’s proposal is to amend the last two
sentences of paragraph (d) to read as follows:
22
Counsel should advance all of the legitimate
arguments requested by the defendant that the record
will support. If defendant insists upon the assertion of
any grounds for relief that counsel deems to be without
merit, counsel shall list such claims in the petition or
amended petition or incorporate them by reference.
The Committee also recommends adding a sentence to the end of the paragraph to
address the filing of pro se briefs which states: “Pro se briefs can also be submitted.”
(d) Changing Terms “Refer” And “Referral” To “Assign”
And “Assignment”
The Committee believes that using the terms “refer” or “referral” to describe the
procedure when the court forwards petitions to the Office of the Public Defender for
assignment of counsel is confusing. The Committee recommends using the terms
“assign” or “assignment” to describe when the court is forwarding the petition to the
Office of the Public Defender for assignment of counsel. This proposed change has been
made in all of the rules governing post-conviction relief.
(e) Proposed Paragraphs (e) and (f) – Not Recommended
The Committee considered adding paragraphs (e) and (f) to address the Public
Defender’s concerns about obtaining the complete case file from the prosecutor and to
define “good cause” for assignment of counsel on a second or subsequent petition for
post-conviction relief. The proposals were as follows:
(e) Discovery. Upon a showing of good cause by
defense counsel, the State shall provide a new copy of
discovery materials and relevant correspondence and
documents previously provided to trial counsel.
23
(f) Good Cause for Assignment of Counsel on a
Second or subsequent Application for Post-conviction
relief. Good cause exists when the defendant's
assertions, if proven and viewed in light of the
evidence as a whole, would raise a reasonable
probability that the post-conviction relief application
would be granted. If good cause is found, a
presumption that the procedural bars are relaxed is
assumed.
The Committee decided that it was unnecessary to draft a rule requiring the
prosecutor to provide case files to the Public Defender, because this involves
communications between the parties and resources in their respective offices. With
regard to the proposal to add a new paragraph (f), the Committee was of the view that the
meaning of “good cause” is sufficiently explained in the proposed amendment to the last
sentence of paragraph (b) in R. 3:22-6.
(8) New R. 3:22-6A. Notifying Court of Assignment; Filing of
Appearance
(a) R. 3:22-6A(1)
On May 3, 2005, the Administrative Office of the Courts promulgated orders for
judges to issue when forwarding a pro se petition for post-conviction relief to the Office
of the Public Defender for assignment of counsel. One order addresses assignment of
counsel on the first petition for post-conviction relief and the other addresses assignment
of counsel for second or subsequent petitions of post-conviction relief. The Committee
considered language in a new rule to address procedures for the Public Defender to notify
the court of counsel who will handle the particular post-conviction relief petition after the
24
judge has issued an order forwarding the case to the Public Defender for the assignment
of counsel.8 The first paragraph of R. 3:22-6A would require that within ninety days of
receipt of an order of assignment issued by the court, the Office of the Public Defender
provide the court with the name of the attorney assigned to represent the defendant. That
attorney would be required to file an appearance with the court within ten days.
The Public Defender’s Office pointed out that the 90-day time period to assign
counsel is reasonable because it takes time for the Post-Conviction Relief Unit to obtain
the case file and transcripts, which are needed to appropriately assign counsel. The
Office of the Public Defender also suggested adding language permitting an exception to
the 90-day time limit to allow for an extension of time, upon a showing of good cause, to
provide the court with the name of the attorney assigned to represent the defendant.
Concern was expressed with allowing a 90-day time period for the Public
Defender to assign an attorney and permitting exceptions to enlarge that time frame after
an order of assignment has been received by their office. It was opined that a defendant
should not have to wait for 90 days after filing the PCR petition to have counsel assigned.
It was suggested that the 90-day time frame for the assignment of counsel should be
reduced to 30 days after the Public Defender’s receipt of the order of assignment.
Representatives from the Office of the Public Defender and the private defense bar
asserted that there is little meaningful function for a defense attorney handling a post-
conviction relief case until the transcripts or case file are obtained. Without first having
8
See Memorandum to Assignment Judges, Criminal – Post-Conviction Relief – Form Order Assigning Counsel,
from Hon. Philip S. Carchman, Acting Administrative Director of the Courts (May 3, 2005).
25
the case file, a defense attorney is unable to answer many of the client’s questions, have a
meaningful conversation or respond to a defendant’s allegations. Those members stated
that unlike pretrial matters, there is no sense of urgency on post-conviction relief matters,
because there is no presumption of innocence at that stage.
Some members disagreed and believed that defense counsel could meet with
clients regarding allegations raised in the pro se post-conviction relief petition to possibly
narrow or clarify some issues raised by the defendant. Some members also thought it
was important for the defendant to have the name of an attorney to send correspondence,
instead of sending correspondence to the court. It was pointed out that such
correspondence would then be covered by the attorney-client privilege, however, when
this correspondence is sent to the court after a petition is filed but before an attorney is
assigned it can be made available to the prosecution. Members in support of the 90-day
time limit to assign counsel pointed out that the proposed rule provides a 90-day outer
limit on the assignment of counsel, however, counsel could be assigned before then,
which is currently occurring in some counties.
The Committee voted and ten members were in favor of the proposal to require the
assignment of counsel within 90 days after the Public Defender’s receipt of the order of
assignment. Nine members were in favor of changing the rule proposal to require the
assignment of counsel within 30 days.
26
(b) R. 3:22-6A(2) and (3)
The Committee is recommending adoption of subsection (A)(2) to address the
circumstance in which a petition for post-conviction relief is filed at the same time that a
direct appeal is pending. Specifically, the Committee recommends adding language to
proposed R. 3:22-6A(2) to state: “If a direct appeal, including a petition for certification,
is pending, the Public Defender’s Office shall notify the court, and the petition shall be
dismissed without prejudice.” This recommendation is consistent with the proposed
amendment to R. 3:22-3 which will provide that a petition for post-conviction relief may
not be filed while appellate review or a motion incident to trial proceedings is pending.
The Committee also suggests including language in paragraph (A)(2) to address
the deadlines for re-filing a petition dismissed without prejudice because a direct appeal
was pending. The suggested language provides that:
if the defendant refiles the petition within 90 days of
the date of the judgment on direct appeal, including
consideration of a petition for certification or within
five years after rendition of the judgment or sentence
sought to be attacked, whichever is later, it shall be
considered a first petition for post-conviction relief.
The Committee also recommends adoption of new paragraph (A)(3) to provide
that where the order assigning the case to the Public Defender’s office states that the
petition is not cognizable under R. 3:22-2 or does not meet the requirements of R. 3:22-8
or the Public Defender determines such deficiencies exist and notifies the court, the court
can dismiss the petition without prejudice, unless an amended petition is filed within a
27
certain time period that is cognizable under R. 3:22-2 and which meets the requirements
contained in R. 3:22-8. In that regard, R. 3:22-6A(3) will differentiate petitions
dismissed as not cognizable under R. 3:22-2 and R. 3:22-8 from petitions dismissed
under R. 3:22-6A(2) because direct appeal was pending.
The proposals provide that any petition dismissed without prejudice pursuant to R.
3:22-6A(3) would be treated as a first petition for post-conviction relief if a cognizable
petition is re-filed within certain time parameters. Therefore, the Committee also
recommends language to this effect be added to R. 3:22-12. The Committee also
recommends that the AOC develop a mechanism to track when PCR applications are
dismissed without prejudice.
The Committee discussed how to craft a rule to address the “filing date” when a
defendant misfiles a motion to change or reduce a sentence (R. 3:21-10) as a first petition
for post-conviction relief. Currently, when this occurs the petition is referred to the
Public Defender’s Post-Conviction Relief Unit for assignment of counsel. After review,
if the Public Defender’s Post-Conviction Relief Unit determines that a motion should
have been filed pursuant to R. 3:21-10, the attorney will typically ask the court to vacate
the order assigning the matter to the Post-Conviction Relief Unit on the basis that the
defendant’s application is cognizable pursuant to R. 3:21-10. The Public Defender’s
Post-Conviction Relief Unit normally sends the case to the local Public Defender’s Office
for handling. Members from the Public Defender’s Office explained that under the
circumstances the attorney may ask the court to vacate the assignment order, because
28
there is no statutory authority mandating that the Public Defender’s Office represent
defendants in R. 3:21-10 motions for reconsideration of sentences. Therefore, the court’s
order referring the case to the Public Defender for assignment of counsel in a matter that
should have been filed pursuant to R. 3:21-10 might now be ordering the Public Defender
to represent defendants in cases where representation is not statutorily required.9
The Committee engaged in a discussion of whether the court had authority to
“convert” a post-conviction relief petition to a R. 3:21-10 motion or if the Public
Defender’s Office had the responsibility to seek relief, such as filing a motion to amend
the post-conviction relief petition or filing a motion to dismiss the petition without
prejudice, and then the defendant could re-file the matter pursuant to R. 3:21-10.
To address this concern, the Committee suggests adding paragraph (A)(3) to
permit the Public Defender to file an amended cognizable petition or to seek other relief
as may be appropriate. The proposed language is as follows:
Where the order of assignment sets forth reasons that the
petition is not cognizable under R. 3:22-2, or does not contain
the requirements of R. 3:22-8, or the Office of the Public
Defender determines that such deficiencies exist and so
notifies the court, the attorney assigned to represent the
defendant shall, within 120 days of assignment, file an
amended petition or new application that is cognizable under
R. 3:22-2 and which meets the requirements contained in R.
3:22-8 or shall seek other relief as may be appropriate.
9
The Committee is recommending amendments to R. 3:21-10 to address the issues of post-conviction sentencing
motions and assignment of counsel for those motions.
29
(c) R. 3:22-6A(4)
The Committee recommends adding paragraph A(4) to provide that in cases where
a defendant is not represented by the Office of the Public Defender, the attorney
representing the defendant shall file an appearance contemporaneously with the filing of
a petition for post-conviction relief.
(9) R. 3:22-7. Docketing; Service on Prosecutor; Assignment for
Disposition
The Committee recommends technical amendments that will reflect and be
consistent with the current practice in the Criminal Division. The Committee
recommends that the references to “Clerk” in the rule be changed to “Criminal Division
Manager.” The Committee also recommends amending the rule to state that the criminal
division manager shall promptly notify the Criminal Presiding Judge of the filing of the
petition, as opposed to, the Assignment Judge. The proposal would also provide that the
Criminal Presiding Judge shall refer the matter to a trial judge for disposition.
(10) R. 3:22-9. Amendments of Pleadings; Answer or Motion by
Prosecutor
The Committee is recommending that the time period for assigned counsel to file
an amended petition for post-conviction relief be increased from 25 to 90 days. The
Committee recognized that sometimes, briefs are filed along with applications for post-
conviction relief. The Committee believes that the 90-day time frame is a more realistic
time period given counsel’s responsibilities once counsel receives the case.
30
Representatives from the Office of the Public Defender pointed out that the
proposed language in R. 3:22-6A(3) provides defense counsel with 120 days to file an
amended petition that is not cognizable under R. 3:22-2 or does not contain the
requirements of R. 3:22-8. However, the proposed amendment to R. 3:22-9 provides
defense counsel with 90 days to file an amended petition. The Office of the Public
Defender suggested that both rules should contain the 120-day deadline. The Committee
believes that there is a distinction between providing a longer time frame of 120 days to
file an amended petition in R. 3:22-6(A)(3), because that rule addresses petitions that are
not in compliance with the rules. If those petitions are not amended, they may be
dismissed without prejudice. On the other hand, R. 3:22-9 governs petitions that are
properly filed and defense counsel may or may not amend the petition. The Committee
does not believe that it is necessary to provide defense counsel with 120 days to file an
amendment, or to file a notice that no amended petition is warranted, when the initial
petition is cognizable.
The Committee also recommends increasing the time for the prosecutor to file a
answer from 30 days to 60 days. The 60-day time period will commence once defense
counsel has submitted the petition and brief. This proposal is designed to avoid situations
in which the prosecutor must respond separately to the original petition filed by a
defendant and an amended petition filed by the Office of the Public Defender after
issuance of an order of assignment pursuant to the amendments to R. 3:22-6. As set forth
above, the proposed amendments to R. 3:22-9 provide assigned counsel with 90 days
31
from the date of assignment to file an amended petition, require that assigned counsel
provide notice of whether an amended petition will in fact be filed, and obviate the need
for prosecutors to respond until such notice, or the amended petition, is served.
The Committee recognized that in practice, prosecutors rarely file motions to
dismiss petitions for post-conviction relief. Instead of filing a formal dismissal motion,
the prosecutor will typically mention dismissal as part of the answer or reply brief that is
filed. The Public Defender’s Office estimated that approximately 6-12 motions for
dismissal were filed in the past two years. One judge did not recall receiving any
motions for dismissal of a petition for post-conviction in ten years. The Committee
therefore recommends deleting references to motions for dismissal and their respective
filing requirements from the rule, as well as the reference to the dismissal motions in the
caption of the rule.
Representatives from the Division of Criminal Justice proposed adding the
following language to the rule to address situations where a defendant may be
uncooperative or unresponsive to counsel and seeks to withdraw a PCR petition without
prejudice:
The court shall not permit a defendant to withdraw a petition
for post-conviction relief without prejudice where the basis
for the withdrawal is that the defendant is unresponsive to
counsel, or where defendant is incarcerated in another
jurisdiction.
The purpose of this proposal was to require that defendants fully prosecute their
post-conviction relief petitions or face dismissal of such petitions with prejudice to
32
conserve judicial resources and prevent defendants from circumventing the bar on second
or successive petitions imposed by R. 3:22-4(b), as proposed to be amended. The
Committee concluded that this language should not be added to the rule. The Committee
is of the view that situations where a defendant is uncooperative or unresponsive to
counsel should be handled on a case-by-case basis.
(11) R. 3:22-10. Presence of Defendant at Hearing; Preference
The Committee is proposing amendments to the rule to delete the first sentence
and recommends designating paragraph (a) to address a defendant’s presence at an
evidentiary hearing, and adding new paragraphs (b), (c), (d), and (e) to incorporate
standards for evidentiary hearings that have been developed by case law over time.
(a) R. 3:22-10(a)
The Committee recommends that the first sentence of the rule, which states that
the proceedings shall be given preference, be deleted to accurately reflect the current
practice that post-conviction relief applications are handled as expeditiously as possible.
The Committee notes that the resolution of other cases of significance may be given
preference over the resolution of PCR cases. Additionally, the Committee proposes to
designate new paragraph (a) and amend the current language to make clear that the
defendant has a right to be present for oral argument, as well as, when testimony is being
given. The Committee agreed that the rule should also make clear that the defendant can
waive his right to be present at the oral argument or when testimony is adduced. If a
33
defendant is out-of-state or otherwise cannot be brought to a hearing, consent to the
waiver of presence can be provided by counsel or be otherwise implied.
(b) New Paragraph R. 3:22-10(b)
The Committee recommends incorporating into R. 3:22-10 the standards set forth
by the Supreme Court of New Jersey for determining whether an evidentiary hearing is
warranted. See State v. Preciose, 129 N.J. 451 (1992); State v. Marshall, 148 N.J. 89,
cert. denied, 522 U.S. 850 (1997). In Preciose, the Court ruled that evidentiary hearings
should be granted only if a defendant “has presented a prima facie claim in support of
post-conviction relief” by demonstrating a “reasonable likelihood” of success. State v.
Preciose, 129 N.J. at 462-63. In Marshall, the Court made clear, however, that there is a
“pragmatic dimension” to the post-conviction relief court’s determination of whether an
evidentiary hearing is warranted. State v. Marshall, 148 N.J. at 158. Thus, a defendant is
not entitled to an evidentiary hearing if such a hearing would not “aid the court’s analysis
of whether the defendant is entitled to post-conviction relief” or if “defendant’s
allegations are too vague, conclusory, or speculative . . . .” Ibid. The Court further
affirmed that the “purpose of an evidentiary hearing is to permit the defendant to prove
that he or she was improperly convicted or sentenced; it is not an occasion for the
defendant to question witnesses in an indiscriminate search for additional grounds for
post-conviction relief.” Ibid.
Paragraph (b), extracted primarily from State v. Preciose, sets forth new proposed
language which provides that a defendant is entitled to a evidentiary hearing only upon:
34
(1) establishment of a prima facie case in support of post-conviction relief; (2) a
determination by the court that there are material issues of disputed fact that cannot be
resolved by reference to the existing record, and (3) a determination that an evidentiary
hearing is necessary to resolve the claims for relief.
The proposal also defines prima facie case as a reasonable likelihood that the
claim for relief, viewing the facts alleged in the light most favorable to the defendant,
will ultimately succeed on the merits.
(c) New Paragraph R. 3:22-10(c)
Paragraph (c) sets forth new language explaining that before the court can grant a
hearing, any factual assertion that provides a predicate for a claim of relief must be made
by affidavit or certification, pursuant to R. 1:4-4 and be based on personal knowledge of
the declarant.
(d) New Paragraph R. 3:22-10(d)
Paragraph (d) sets forth new language explaining that the scope of an evidentiary
hearing shall be limited to the issue of whether the defendant was improperly convicted.
The purpose of this rule is to ensure that the defendant does not attempt to investigate
additional claims for relief during the post-conviction relief hearing, for which the
defendant has not demonstrated a reasonable likelihood of success on the merits.
(e) New Paragraph - R. 3:22-10(e)
The Committee is proposing adding a new paragraph (e) that would set forth three
circumstances for which the court shall not grant an evidentiary hearing: (1) if a hearing
35
will not assist the court in resolving defendant’s claim; (2) if the allegations are too
vague, conclusory or speculative; or (3) for the purpose of permitting a defendant to
investigate additional claims for relief for which the defendant has not established a
prima facie case of a reasonable likelihood of success as required by R. 3:22-10(b).
(12) R. 3:22-11. Determination; Findings and Conclusions;
Judgment; Supplementary Orders
Concern was raised that the rules do not contain any time frames for rulings on
motions to dismiss or final determinations in post-conviction relief cases. Therefore, the
Committee is recommending an amendment to R. 3:22-11 to require that the court make
a final determination on the PCR petition within 30 days of the hearing or in the absence
of a hearing, within 30 days of the filing of the amended petition or answer filed in the
case.
The Committee also recommends deleting references to motions for dismissals in
light of its recommendation to amend R. 3:22-9 to delete the practice of motions for
dismissals.
(13) R. 3:22-12. Limitations
The Committee considered when a deficient petition for post-conviction relief
should be deemed filed. Typically the five-year time bar in R. 3:22-12 commences at the
time of the conviction or the time of sentencing, depending upon what the defendant is
challenging. State v. Milne, 178 N.J. 486, 491 (2004). If a defendant alleges facts
36
demonstrating that the delay was because of the defendant’s inexcusable neglect or if the
“interests of justice demand it”, the court may relax the time bar. Id. at 492.
The Committee is proposing several amendments to R. 3:22-12 to incorporate
Milne. First, the Committee proposes to amend paragraph (a) of R. 3:22-12 to state that
“no petition shall be granted pursuant to this rule if filed more than 5 years after rendition
of the judgment or sentence sought to be attacked” unless the defendant shows that the
delay was due to excusable neglect and that there is a reasonable probability that if the
defendant’s factual assertions were found to be true, the defendant would have been
found not guilty. Members from the Office of the Public Defender opposed the language
requiring a finding of “a reasonable probability that if the defendant’s factual assertions
were found to be true the defendant would have been found not guilty” to relax the 5-year
time bar. Those members proposed that the standard should be “a reasonable probability
that if the defendant’s factual assertions were found to be true the relief sought would be
granted.” The Office of the Public Defender’s reasoning for this proposal is that
requiring a reasonable probability that a defendant would be found not guilty would set
the bar for a first petition for post-conviction relief higher than the bar set for a second or
subsequent petition for post-conviction relief.
Second, the Committee proposes to add a new paragraph (a)(3) to R. 3:22-12 to
provide that a petition dismissed without prejudice as not cognizable under R. 3:22-2, or
for failing to meet the requirements of R. 3:22-8, shall not trigger the application of the
provisions pertaining to second or subsequent post-conviction relief petitions so long as
37
that dismissed petition is amended to conform with R. 3:22-2 and R. 3:22-8 and is re-
filed by the original 5-year deadline set forth in R. 3:22-12, or is re-filed within 90 days
of dismissal, whichever is later. The Committee is of the view that this amendment will
more “strongly encourage[] those believing they have grounds for post-conviction relief
to bring their claims swiftly, and [will more strongly] discourage[] them from sitting on
their rights until it is too late for a court to render justice.” State v. Mitchell, 126 N.J.
565, 576 (1992).
In addition, in conjunction with the proposed amendments to R. 3:22-4(b), it is
proposed that R. 3:22-12 be amended to add a new paragraph (a)(2) to impose a one-year
time limit to file all second or subsequent petitions to encourage defendants to raise all of
their claims in the first PCR petition that is filed.
The Committee also proposes deleting the first sentence from the rule which
provides that a petition to correct an illegal sentence may be filed at any time, because it
is recommending that similar language be included in R. 3:21-10, in light of the proposed
amendments to R. 3:22-2.
In light of the foregoing discussions, the Committee is proposing that the Court
adopt the following rule recommendations.
38
1:3-4. Enlargement of Time.
(a) . . . No Change
(b) . . . No Change
(c) Enlargements Prohibited. Neither the parties nor the court may, however, enlarge the
time specified by R. 1:7-4 (motion for amendment of findings); R. 3:18-2 (motion for
judgment of acquittal after discharge of jury); R. 3:20-2, R. 4:49-1(b) and (c) and R.
7:10-1 (motion for new trial); R. 3:21-9 (motion in arrest of judgment); R. 3:21-10(a); R.
3:22-12 (petitions for post-conviction relief); R. 3:23-2 (appeals to the Law Division
from judgments of conviction in courts of limited criminal jurisdiction); R. 3:24 (appeals
to the Law Division from interlocutory orders and orders dismissing the complaint
entered by courts of limited criminal jurisdiction); R. 4:40-2(b) (renewal of motion for
judgment); R. 4:49-2 (motion to alter or amend a judgment); and R. 4:50-2 (motion for
relief from judgment or order).
Note: Source-R.R. 1:27B (a) (b) (c) (d) (e), 4:6-1, 8:12-5(a)(b). Paragraph (c) amended
July 7, 1971, effective September 13, 1971; paragraph (b) amended November 27, 1974
to be effective April 1, 1975; paragraph (b) amended July 22, 1983 to be effective
September 12, 1983; paragraph (c) amended July 26, 1984 to be effective September 10,
1984; paragraphs (b) and (c) amended July 14, 1992 to be effective September 1, 1992;
paragraph (c) amended January 5, 1998 to be effective February 1, 1998; paragraph (c)
amended July 10, 1998 to be effective September 1, 1998; paragraph (c) amended July
28, 2004 to be effective September 1, 2004[.]; paragraph (c) amended
________________ to be effective ____________.
39
3:21-4. Sentence
(a) . . . No Change.
(b) . . . No Change
(c) . . . No Change
(d) . . . No Change
(e) . . . No Change
(f) . . . No Change
(g) . . . No Change
(h) Notification of Right to Appeal and to File Petitions for Post-Conviction Relief.
After imposing sentence, whether following the defendant's plea of guilty or a finding of
guilty after trial, the court shall advise the defendant of the right to appeal and, if the
defendant is indigent, of the right to appeal as an indigent. The court shall also inform
the defendant of the time limitations in which to file petitions for post-conviction relief.
(i) . . . No Change
(j) . . . No Change
Note: Source-R.R. 3:7-10(d). Paragraph (f) amended September 13, 1971, paragraph (c)
deleted and paragraphs (d), (e) and (f) redesignated as (c), (d) and (e) July 14, 1972 to be
effective September 5, 1972; paragraph (e) adopted and former paragraph (e)
redesignated as (f) August 27, 1974 to be effective September 9, 1974; paragraph (b)
amended July 17, 1975 to be effective September 8, 1975; paragraphs (d) and (e)
amended August 28, 1979 to be effective September 1, 1979; paragraph (d) amended
December 26, 1979 to be effective January 1, 1980; paragraph (g) adopted July 26, 1984
to be effective September 10, 1984; paragraph (d) caption and text amended November 5,
1986 to be effective January 1, 1987; paragraph (d) amended November 2, 1987 to be
effective January 5, 1988; to be effective February 1, 1988; new paragraph (c) adopted
and former paragraphs (c), (d), (e), (f), and (g) redesignated (d), (e), (f), (g), and (h)
40
respectively June 29, 1990 to be effective September 4, 1990; paragraph (b) amended
July 14, 1992 to be effective September 1, 1992; paragraph (I) adopted April 21, 1994 to
be effective June 1, 1994; paragraphs (b), (e), (f) and (g) amended July 13, 1994 to be
effective January 1, 1995; former paragraphs (f), (g), (h), and (I) redesignated as
paragraphs (g), (h), (I), and (j) and new paragraph (f) adopted July 10, 1998 to be
effective September 1, 1998; paragraph (j) amended July 5, 2000 to be effective
September 5, 2000[.]; paragraph (h) caption and text amended ___________________to
be effective__________________________.
41
3:21-10. Reduction or Change of Sentence
(a) . . . No Change.
(b) Exceptions. A motion may be filed and an order may be entered at any time (1)
changing a custodial sentence to permit entry of the defendant into a custodial or non-
custodial treatment or rehabilitation program for drug or alcohol abuse, or (2) amending a
custodial sentence to permit the release of a defendant because of illness or infirmity of
the defendant or (3) changing a sentence for good cause shown upon the joint application
of the defendant and prosecuting attorney, or (4) changing a sentence as authorized by the
Code of Criminal Justice, or (5) correcting a sentence not authorized by law including the
Code of Criminal Justice, or [(5)](6) changing a custodial sentence to permit entry into
the Intensive Supervision Program, or [(6)] (7) changing or reducing a sentence when a
prior conviction has been reversed on appeal or vacated by collateral attack.
(c) Procedure. A motion filed pursuant to paragraph (b) hereof shall be accompanied by
supporting affidavits and such other documents and papers as set forth the basis for the
relief sought. A hearing need not be conducted on a motion filed under paragraph (b)
hereof unless the court, after review of the material submitted with the motion papers,
concludes that a hearing is required in the interest of justice. All changes of sentence shall
be made in open court upon notice to the defendant and the prosecutor. An appropriate
order setting forth the revised sentence and specifying the change made and the reasons
therefor shall be entered on the record. Upon any motion filed pursuant to this rule, the
42
matter may be referred to the Office of the Public Defender who shall represent the
defendant as assigned by the judge.
(d) . . . No Change.
(e) . . . No Change.
Source-R.R. 3:7-13(a)(b); paragraph (b) amended and redesignated as (c) and new
paragraph (b) adopted July 17, 1975 to be effective September 8, 1975; paragraph (b)
amended August 28, 1979 to be effective September 1, 1979; new paragraph (d) adopted
July 16, 1981 to be effective September 14, 1981; paragraph (a) amended July 15, 1982
to be effective September 13, 1982; paragraph (b) amended and paragraph (e) adopted
July 22, 1983 to be effective September 12, 1983; paragraph (c) amended July 13, 1994
to be effective January 1, 1995; paragraph (b) amended June 28, 1996 to be effective
September 1, 1996[.]; new paragraph (b)(5) adopted, former paragraphs (b)(5) and (b)(6)
redesignated as (b)(6) and (b)(7) and paragraph (c) amended ______________to be
effective ______________.
43
3:22-2. Grounds
A petition for post-conviction relief is cognizable if based upon any of the following
grounds:
(a) . . . No Change.
(b) . . . No Change.
(c) Imposition of sentence in excess of or otherwise not in accordance with the
sentence authorized by law if raised together with other grounds cognizable under
paragraph (a), (b), or (d) of this rule. Otherwise a claim alleging that the imposition of
sentence in excess of or otherwise not in accordance with the sentence authorized by law
shall be filed pursuant to R. 3:21-10(b)(5).
(d) . . . No Change.
Note: Source--R.R. 3:10A-2[.]; paragraph (c) amended________to be
effective___________.
44
3:22-3. Exclusiveness of Remedy; Not Substitute for Appeal or Motion
Except as otherwise required by the Constitution of New Jersey, a petition pursuant to
this rule is the exclusive means of challenging a judgment rendered upon conviction of a
crime. It is not, however, a substitute for appeal from conviction or for motion incident
to the proceedings in the trial court, and may not be filed while such appellate review or
motion is [available] pending.
Note: Source--R.R. 3:10A-3[.]; amended _____________to be effective___________.
45
3:22-4. Bar of Grounds Not Raised in Prior Proceedings; Bar of Second or
Subsequent Petitions; Exceptions
(a) Any ground for relief not raised in a prior proceeding under this rule, or in the
proceedings resulting in the conviction, or in a post-conviction proceeding brought and
decided prior to the adoption of this rule, or in any appeal taken in any such proceedings
is barred from assertion in a proceeding under this rule unless the court on motion or at
the hearing finds:
[(a)] (1) that the ground for relief not previously asserted could not reasonably
have been raised in any prior proceeding; or
[(b)] (2) that enforcement of the bar would result in fundamental injustice; or
[(c)] (3) that denial of relief would be contrary to a new rule of constitutional law
under either the Constitution of the United States or the State of New Jersey.
A ground could not reasonably have been raised in a prior proceeding only if
defendant shows that the factual predicate for that ground could not have been discovered
earlier through the exercise of reasonable diligence.
A denial of relief would be contrary to a new rule of constitutional law only if the
defendant shows that the claim relies on a new rule of constitutional law, made
retroactive to defendant’s petition by the United States Supreme Court or the Supreme
Court of New Jersey, that was unavailable during the pendency of any prior proceedings.
(b) A second or subsequent petition for post-conviction relief shall be dismissed
unless:
46
(1) it is timely under R. 3:22-12(a)(2); and
(2) it alleges on its face either:
(A) that the petition relies on a new rule of constitutional law, made
retroactive to defendant’s petition by the United States Supreme Court or the Supreme
Court of New Jersey, that was unavailable during the pendency of any prior proceedings;
or
(B) that the factual predicate for the relief sought could not have been
discovered earlier through the exercise of reasonable diligence, and the facts underlying
the ground for relief, if proven and viewed in light of the evidence as a whole, would
raise a reasonable probability that the relief sought would be granted.
Note: Source--R.R. 3:10A-4[.]; caption amended, redesignation of paragraph (a), former
paragraphs (a), (b), and (c) amended and redesignated as paragraphs (a)(1), (a)(2) and
(a)(3) and new paragraph (b) added______________to be effective___________.
47
3:22-6. Indigents; Waiver of Fees; Assignment of Counsel, and Grant of
Transcript; Assigned Counsel May Not Withdraw
(a) Waiver of Fees; Assignment on First Petition. At the time of filing of a petition
under this Rule, a defendant who [is not] wants to be represented by the Office of the
Public Defender may annex thereto a sworn statement alleging indigency in the form
prescribed by the Administrative Director of the Courts, which form shall be furnished to
the defendant by the criminal division manager's office. The criminal division manager's
office shall determine whether the defendant is indigent and screen the petition to
determine whether the petition is cognizable under R. 3:22-2 and, if so, whether the
requirements of R. 3:22-8 have been met. The Criminal Division Manager shall
thereafter forthwith submit the same to the [Presiding Judge of the Criminal Division]
Criminal Presiding Judge who, if satisfied therefrom that the defendant is indigent, shall
order the criminal division manager's office to file the petition without payment of filing
fees. At the same time, and without separate petition therefor, if the petition is the first
one filed by the defendant attacking the conviction pursuant to this rule, the court shall as
of course, unless defendant affirmatively states an intention to proceed pro se, [refer]
assign, by order, the matter to the Office of the Public Defender if the defendant's
conviction was for an indictable offense, or assign counsel in accordance with R. 3:4-2 if
the defendant's conviction was for a non-indictable offense. All orders of assignment
pursuant to this section shall contain the name of the judge to whom the case is assigned
and shall set a place and date for a case management conference.
48
If the petition is not cognizable under R. 3:22-2, or if the petition does not meet
the requirements of R. 3:22-8, the court shall set forth the reasons that the petition is not
cognizable under R. 3:22-2, or fails to meet the requirements of R. 3:22-8, and shall
dismiss the petition.
(b) Assignment of Counsel on Cause Shown. Upon any second or subsequent
petition filed pursuant to this Rule attacking the same conviction, the matter shall be
[referred] assigned to the Office of the Public Defender only upon application therefor
and showing of good cause. For purposes of this section, good cause exists only when
the court finds that a substantial issue of fact or law requires assignment of counsel and
when a second or subsequent petition alleges on its face a basis to preclude dismissal
under R. 3:22-4.
(c) . . . No Change.
(d) Substitution; Withdrawal of Assigned Counsel. [Absent a showing of good cause,
t]The court [will] shall not substitute new assigned counsel at the request of defendant
while assigned counsel is serving[.], except upon a showing of good cause and notice to
the Office of the Public Defender. Assigned counsel may not seek to withdraw on the
ground of lack of merit of the petition. Counsel should advance [any grounds insisted
upon by defendant notwithstanding that counsel deems them without merit] all of the
legitimate arguments requested by the defendant that the record will support. If
defendant insists upon the assertion of any grounds for relief that counsel deems to be
49
without merit, counsel shall list such claims in the petition or amended petition or
incorporate them by reference. Pro se briefs can also be submitted.
Note: Source--R.R. 3:10A-6(a)(b)(c)(d). Paragraph (b) amended July 14, 1972 to be
effective September 5, 1972; paragraphs (a) and (d) amended July 13, 1994 to be
effective January 1, 1995[.]; paragraphs (a), (b) and (d) amended ________________to
be effective__________.
50
3:22-6A. Notifying Court of Assignment; Filing of Appearance
(1) Within ninety days of receipt of an order of assignment on a filed petition for
post-conviction relief, the Public Defender shall provide the court with the name of the
attorney assigned to represent the defendant. That attorney shall, within ten days, file an
appearance with the judge.
(2) If a direct appeal, including a petition for certification, is pending, the Public
Defender shall notify the court, and the petition shall be dismissed without prejudice. If
the defendant refiles the petition within 90 days of the date of the judgment on direct
appeal, including consideration of a petition for certification, or within five years after
rendition of the judgment or sentence sought to be attacked, whichever is later, it shall be
considered a first petition for post-conviction relief.
(3) Where the order of assignment sets forth reasons that the petition is not
cognizable under R. 3:22-2, or does not contain the requirements of R. 3:22-8, or the
Office of the Public Defender determines that such deficiencies exist and so notifies the
court, the attorney assigned to represent the defendant shall, within 120 days of
assignment, file an amended petition or new application that is cognizable under R. 3:22-
2 and which meets the requirements contained in R. 3:22-8, or shall seek other relief as
may be appropriate. In the absence of an amended petition, the court may dismiss the
petition without prejudice.
51
(4) In all other cases in which an attorney is representing the defendant, the attorney
shall file an appearance contemporaneously with the filing of a petition for post-
conviction relief.
Note: Adopted __________________.
52
3:22-7. Docketing; Service on Prosecutor; Assignment for Disposition
The [clerk] criminal division manager shall make an entry of the filing of the petition
in the proceedings in which the conviction took place, and, if it is filed pro se, shall
forthwith transmit a copy thereof to the prosecutor of the county. If an attorney files the
petition, that attorney shall serve a copy thereof on the prosecutor before filing and shall
file proof, certification or acknowledgment of service with the petition. The [clerk]
criminal division manager shall promptly notify the Criminal Presiding Judge
[Assignment Judge or judge designated by the Assignment Judge] of the filing of the
petition, [who] and the Criminal Presiding Judge shall forthwith refer the matter for
disposition to a trial judge.
Note: Source--R.R. 3:10A-7; amended July 13, 1994 to be effective September 1,
1994[.]; amended__________________to be effective_________________________.
53
3:22-9. Amendments of Pleadings; Answer [or Motion] by Prosecutor
Amendments of pleadings shall be liberally allowed. For all petitions assigned by the
Office of the Public Defender pursuant to R. 3:22-6(a), [A]assigned counsel may as of
course serve and file an amended petition within [25] 90 days after assignment. If
assigned counsel determines that no amended petition is warranted, counsel must serve
and file notice of that determination within 90 days after assignment. For all petitions
assigned to the Office of the Public Defender, the prosecutor shall, within 60 days after
service of a copy of the amended petition or the notice that no amended petition will be
filed, serve and file an answer to the petition or amended petition. For all other petitions
for post-conviction relief, w[W]ithin [30] 60 days after service of a copy of the petition or
amended petition, the prosecutor shall serve and file an answer thereto. [or move on 10
days' notice for dismissal. If a motion for dismissal is denied the State's answer shall be
filed within 15 days thereafter.] The court may make such other orders with respect to
pleadings, as it deems appropriate.
Note: Source--R.R. 3:10A-9[.]; caption and text amended_____________to be
effective____________.
54
3:22-10. Presence of Defendant at Hearing; Preference; Evidentiary Hearing
[The proceedings shall be given preference and be determined promptly.]
(a) A defendant in custody [may be present in court in the court's discretion and] shall
be entitled to be present when oral argument or testimony is adduced [on a material issue
of fact within the defendant's personal knowledge]. The defendant’s presence can be
waived by counsel upon request of the defendant.
(b) A defendant shall be entitled to an evidentiary hearing only upon the
establishment of a prima facie case in support of post-conviction relief, a determination
by the court that there are material issues of disputed fact that cannot be resolved by
reference to the existing record, and a determination that an evidentiary hearing is
necessary to resolve the claims for relief. To establish a prima facie case, defendant must
demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the
light most favorable to the defendant, will ultimately succeed on the merits.
(c) Any factual assertion that provides the predicate for a claim of relief must be made
by an affidavit or certification pursuant to Rule 1:4-4 and based upon personal knowledge
of the declarant before the court may grant an evidentiary hearing.
(d) The scope of an evidentiary hearing shall be limited to the issue of whether the
defendant was improperly convicted.
(e) A court shall not grant an evidentiary hearing:
(1) if an evidentiary hearing will not aid the court’s analysis of the defendant’s
entitlement to post-conviction relief;
55
(2) if the defendant’s allegations are too vague, conclusory or speculative; or
(3) for the purpose of permitting a defendant to investigate whether additional
claims for relief exist for which defendant has not demonstrated a reasonable likelihood
of success as required by R. 3:22-10(b).
Note: Source--R.R. 3:10A-11; amended July 13, 1994 to be effective September 1,
1994[.]; first paragraph of rule amended and designated as new paragraph (a) and new
paragraphs (b), (c), (d) and (e) added _________to be effective________________.
56
3:22-11. Determination; Findings and Conclusions; Judgment; Supplementary
Orders
The court shall make its final determination within 30 days of the hearing or, if there
is no hearing, within 30 days of the filing of the last amended petition or answer. In
making final determination upon a petition, [either on motion for dismissal or after
hearing,] the court shall state separately its findings of fact and conclusions of law, and
shall enter a judgment, which shall include an appropriate order or direction with respect
to the judgment or sentence in the conviction proceedings and any appropriate provisions
as to rearraignment, retrial, custody, bail, discharge, correction of sentence, or as may
otherwise be required.
Note: Source--R.R. 3:10A-12[.]; amended _________________to be effective_____ .
57
3:22-12. Limitations
(a) General Time Limitations. [A petition to correct an illegal sentence may be filed
at any time.]
(1) First Petition For Post-Conviction Relief. No [other] petition shall be [filed]
granted pursuant to this rule if filed more than 5 years after rendition of the judgment or
sentence sought to be attacked unless it alleges facts showing that the delay beyond said
time was due to defendant's excusable neglect and that there is a reasonable probability
that if the defendant’s factual assertions were found to be true the defendant would have
been found not guilty.
(2) Second or Subsequent Petition for Post-Conviction Relief. Notwithstanding
any other provision in this rule, no second or subsequent petition shall be filed more than
one year after the latest of:
(A) the date on which the constitutional right asserted was initially
recognized by the United States Supreme Court or the Supreme Court of New
Jersey, if that right has been newly recognized by either of those Courts and made
retroactive by either of those Courts to cases on collateral review; or
(B) the date on which the factual predicate for the relief sought was
discovered, if that factual predicate could not have been discovered earlier through
the exercise of reasonable diligence.
(3) A petition dismissed pursuant to R. 3:22-6A(3) without prejudice as not
cognizable under R. 3:22-2, or for failing to meet the requirements of R. 3:22-8, shall be
treated as a first petition for purposes of these rules if amended and refiled within 90 days
58
after the date of dismissal, or 5 years after rendition of the judgment or sentence sought to
be attacked, whichever is later.
(b) . . . No Change
(c) These time limitations shall not be relaxed, except as provided herein.
Note: Source--R.R. 3:10A-13. Caption added and text designated as paragraph (a), and
new paragraph (b) added July 12, 2002 to be effective September 3, 2002[.]; paragraph
(a) amended and redesignated as paragraph (a)(1) new paragraphs (a)(2), (a)(3) and (c)
added ___________________to be effective____________________.
59
2. Rules 2:5-3(d) and 3:22-6(c) – Ordering Transcripts in Municipal Appeals
and Appeals from Second or Subsequent Denials of Petitions for Post-
Conviction Relief
The Committee is proposing amendments to R. 2:5-3(d) and R. 3:22-6(c) to make
the ordering of transcripts in municipal appeals and in appeals from the denial of a
second or subsequent post-conviction relief application discretionary. The reasoning
behind this proposal is that the Appellate Division may not need transcripts in certain
cases on appeal, other than those presented to the Law Division particularly those
involving second or subsequent petitions for post-conviction relief that have been
dismissed on the papers and there is a written statement of reasons for the decision made
by the Superior Court so that the oral transcript is reduced to writing. The Committee is
of the view that the court can avoid costs associated with the ordering of transcripts in
these cases.
The Committee believes that as currently written, the “where necessary” language
contained in R. 3:22-6 could be interpreted to make the ordering of transcripts either
mandatory or discretionary in second or subsequent petitions for post-conviction relief.
The proposed amendment would change “shall” to “may” in R. 2:5-3(d) and R. 3:22-6(c)
in a effort to make it clearer that transcripts need not be ordered in cases that fall within
these rules. The Committee is proposing amendments to R. 2:5-3(d) and R. 3:22-6(c).
60
R. 2:5-3. Preparation and filing of transcript; statement of proceedings; prescribed
transcript request form
(a) . . . No Change.
(b) . . . No Change.
(c) . . . No Change.
(d) Deposit for Transcript; Payment Completion. The appellant, if not the State or a
political subdivision thereof, shall, at the time of making the request for the transcript,
deposit with the reporter or the clerk of the court or agency from whom a transcript is
ordered, either the estimated cost of the transcript as determined by the court reporter,
clerk or agency, or the sum of $ 500.00 for each day or fraction thereof of trial or hearing.
If the appellant is the State or a political subdivision thereof, it shall provide a voucher to
the reporter or the clerk or the agency for billing for the cost of the transcript. The
reporter, clerk or agency, as the case may be, shall upon completion of the transcript, bill
or reimburse the appellant, as appropriate, for any sum due for the preparation of the
transcript or overpayment made therefore. If the appellant is indigent and is entitled to
have a transcript of the proceedings below furnished without charge for use on appeal,
either the trial or the appellate court, on application, may order the transcript prepared at
public expense. Unless the indigent defendant is represented by the Public Defender or
that office is otherwise obligated by law to provide the transcript to an indigent, the court
may [shall] order the transcript of the proceedings below furnished at the county's
expense if the appeal involves prosecution for violation of a statute and at the
municipality's expense if the appeal involves prosecution for violation of an ordinance.
(e) . . . No Change.
61
(f) . . . No Change.
Note: Source-R.R. 1:2-8(e) (first, second, third, fourth, sixth and seventh sentences), 1:2-
8(g), 1:6-3, 1:7-1(f) (fifth sentence), 3:7-5 (second sentence), 4:44-2 (second sentence),
4:61-1(c), 4:88-8 (third and fourth sentences), 4:88-10 (sixth sentence). Paragraphs
(a)(b)(c) and (d) amended July 7, 1971 to be effective September 13, 1971; paragraphs
(b) and (d) amended July 14, 1972 to be effective September 5, 1972; paragraph (c)
amended June 29, 1973 to be effective September 10, 1973; caption amended and
paragraph (a) caption and text amended July 24, 1978 to be effective September 11,
1978; paragraphs (c) and (d) amended July 16, 1981 to be effective September 14, 1981;
paragraph (e) amended November 1, 1985 to be effective January 2, 1986; paragraph (a)
amended, paragraph (d) caption and text amended, former paragraph (e) redesignated
paragraph (f), and paragraph (e) caption and text adopted November 7, 1988 to be
effective January 2, 1989; paragraphs (a) and (e) amended July 14, 1992 to be effective
September 1, 1992; paragraphs (c), (e) and (f) amended July 13, 1994 to be effective
September 1, 1994; paragraph (d) amended July 28, 2004 to be effective September 1,
2004; paragraphs (a) and (e) amended July 27, 2006 to be effective September 1, 2006[.];
paragraph (d) amended to be effective .
62
R. 3:22-6. Indigents; waiver of fees; assignment of counsel, and grant of transcript;
assigned counsel may not withdraw
(a) . . . No Change.
(b) . . . No Change.
(c) Transcript. After assignment of counsel, or if the indigent defendant proceeds
without counsel, the court may [shall] grant an application for the transcript of testimony
of any proceeding shown to be necessary in establishing the grounds of relief asserted.
(d) . . . No Change.
Note: Source-R.R. 3:10A-6(a)(b)(c)(d). Paragraph (b) amended July 14, 1972 to be
effective September 5, 1972; paragraphs (a) and (d) amended July 13, 1994 to be
effective January 1, 1995[.]; paragraph (c) amended to be effective .
63
3. Rule 2:7-2(d) – Attorney of Record
During the 2004-2007 rules cycle, the Court adopted the Committee’s
recommendation to amend R. 2:7-2(d) to assure that a timely notice of appeal is filed in
the Appellate Division after an unsuccessful trial de novo and to assure timely assignment
of counsel where the assigned attorney filing the notice of appeal is seeking to withdraw
and have the court appoint another attorney. As amended, the rule was designed to
provide that if assigned counsel is the counsel of record in the Law Division and does not
move to withdraw or be substituted as counsel, that attorney will remain the counsel of
record for an appeal. These amendments were effective on September 1, 2007.8
In State v. Taimanglo, 403 N.J. Super. 112, 121 (App. Div. 2008), the Appellate
Division stated, in footnote 7:
We also note assigned counsel's obligation to file an appeal to
us if desired by the client, and to move to be relieved
thereafter. See R. 2:7-2(d); Pressler, Current N.J. Court Rules,
comment 4 on R. 2:7-2(d) (2009). There is no indication of an
intent to change the filing requirement when R. 3:27-2 was
deleted and R. 2:7-4 was amended in 2004. See also State v.
Sheridan, 280 N.J. Super. 419, 655 A.2d 934 (App. Div.
1995); Pressler, supra.
As currently written, paragraph (d) of R. 2:7-2 provides that assigned counsel
remain counsel on appeal, unless counsel moves to be relieved, but the rule does not
provide that counsel must actually file the appeal. In light of Taimanglo, the Committee
is proposing to add language to paragraph (d) to clarify that assigned counsel is also
obligated to file the appeal. This proposed amendment addresses assigned counsel in
8
The Court also adopted the Committee’s recommendation to remove cross-references to other rules that were
contained in paragraph (d) of the rule.
64
non-indictable cases when a defendant is convicted, has de novo review in the Law
Division, and then files an appeal in the Appellate Division. The Committee agreed to
also recommend an amendment to the caption of paragraph (d) to reflect that this
paragraph of the rule addresses appeals filed in non-indictable prosecutions.
The Committee is recommends the proposed amendments to R. 2:7-2(d).
65
2:7-2. Assignment of Counsel on Appeal
(a) …No Change.
(b) …No Change.
(c) …No Change.
(d) ...Responsibility of Counsel Assigned by the Trial Court For Non-Indictable
Offenses. Assigned counsel representing a defendant in a non-indictable prosecution
shall file an appeal for a defendant who elects to exercise his or her right to appeal. An
attorney filing a notice of appeal shall be deemed the attorney of record for the appeal
unless the attorney files with the notice of appeal an application for the assignment of
counsel on appeal.
Note: Source--R.R. 1:2-7(b), 1:12-9(b) (d). Paragraph (c) adopted November 1, 1985 to
be effective January 2, 1986; paragraph (a) amended, paragraph (b) caption and text
amended, paragraph (c) adopted and former paragraph (c) redesignated paragraph (d)
November 5, 1986 to be effective January 1, 1987; paragraphs (b) and (d) amended July
10, 1998 to be effective September 1, 1998; paragraphs (b) and (d) amended July 12,
2002 to be effective September 3, 2002; paragraph (d) amended June 15, 2007 to be
effective September 1, 2007[.]; paragraph (d) caption and text amended to
be effective .
66
4. Rule 3:30 – Expungement Fees
The Committee is proposing a new rule, R. 3:30, to address fees to file an
application or petition for an expungement of records. Currently, the fees to process an
application or petition for the expungement of records are contained in two separate
statutes, N.J.S.A. 22A:2-25 and N.J.S.A. 2C:52-29, which has caused confusion as to the
total fee required.
N.J.S.A. 22A:2-25 governs Law Division Filing fees and states:
Upon the filing, entering or docketing with the deputy clerk
of the Superior Court in the various counties of the herein-
mentioned papers or documents by either party to any action
or proceeding in the Law Division of the Superior Court,
other than a civil action in which a summons or writ must be
issued, he shall pay the deputy clerk of the court the
following fees:
. . . Filing first paper on petition for expungement …$ 22.50
N.J.S.A. 2C:52-29 also governs expungement filing fees. It states:
Any person who files an application pursuant to this chapter
shall pay to the State Treasurer a fee of $30.00 to defer
administrative costs in processing an application hereunder.
Based upon these two statutes, when an individual files an application or petition
for an expungement of records, the total fee is $52.50.
The Committee is recommending the adoption of a new rule, R. 3:30, to reference
the two applicable statutes requiring fees to file an application or petition for an
expungement of records in one court rule. The Committee recommends that new R. 3:30
be adopted.
67
Rule 3:30. Fees for Expungement of Records
Any person who files an application for an expungement of records, pursuant
to N.J.S.A. 2C:52-1 to - 32, shall pay filing fees as required by N.J.S.A. 2C:52-29
and N.J.S.A. 22A:2-25.
Note: Adopted ________ to be effective .
68
B. Non-Rule Recommendations
1. Amendments to the Main Plea Form – Immigration Status Issues
The Committee is proposing that Question #17 of the Main Plea Form,
which addresses a defendant’s immigration status, be clarified. Currently,
Question #17 of the Main Plea Form reads: “Do you understand that if you are
not a United States citizen or national, you may be deported by virtue of your plea
of guilty?” This question provides for a response of Yes, No or NA (i.e. not
applicable). The Conference of Criminal Presiding Judges reported that when
defendants select the response of “not applicable” in Question #17, often the
record is unclear of why they provided that response. The Conference explained
that many defendants have filed motions to vacate their guilty pleas arguing that
the possible immigration/deportation consequences were not fully explained to
them by counsel at the time the plea was entered. To alleviate this concern, the
Conference of Criminal Presiding Judges recommended amending Question #17
of Main Plea Form as follows:
Question #17:
#17a. Are you a citizen of the United States? [YES] [NO]
(If no, answer question #17b)
#17b. Do you understand that if you are not a [YES] [NO]
United States citizen or national, you
may be deported by virtue of your plea
of guilty?
69
The Committee agreed to recommend the amendments without any
objections. The revisions to the Main Plea Form were promulgated in Attachment
1 of Directive #14-08 (October 8, 2008).
70
2. Amendments to Main Plea Form – Interstate Compact for Adult Offender
Supervision
The Federal Interstate Commission for Adult Offender Supervision (ICAOS)
passed two amendments to the Interstate Compact Rules that went into effect on January
1, 2008. The ICAOS is charged with overseeing the day-to-day operations of the
Interstate Compact for Adult Offender Supervision (Compact), a formal agreement
between member states that seeks to promote public safety by systematically controlling
the interstate movement of certain adult offenders. Upon request of the Administrative
Office of the Courts, Probation Services Division, the Committee considered whether a
rule amendment or an amendment to the plea forms was necessary in light of the
Compact rules involving the transfer of supervision of sex offenders.
Effective January 1, 2008, the ICAOS adopted Rule 1.101 to define a “sex
offender” as: “an adult placed under, or made subject to, supervision as the result of the
commission of an offense and released to the community under the jurisdiction of the
courts, paroling authorities, corrections or other criminal justice agencies, and who is
required to register as a sex offender either in the sending or receiving state, and who is
required to request transfer of supervision under the provisions of the Interstate Compact
for Adult Offender Supervision.” The ICAOS also adopted Rule 3.101-3 regarding
transfer of supervision of sex offenders. The transfer rule provides that “a sex offender
shall not be allowed to leave the sending state until the sending state’s request for transfer
of supervision has been approved, or reporting instructions have been issued by the
receiving state.” As far as timing, the receiving state has five business days to review the
71
defendant’s proposed residence to ensure compliance with local laws before issuing
reporting instructions. If the proposed residence is invalid because of an existing law or
policy, the receiving state may deny reporting instructions. In effect the rule, as applied
can prevent a defendant from leaving the sending state until the receiving state approves
the transfer. As a consequence, some defendants may not be able to return home after
being sentenced to probation by the court or after being released on parole.
The Committee first discussed the definition of a “sex offender” and recognized
that offenses requiring sex offender registration in New Jersey may be different from
offenses requiring sex offender registration under a receiving state’s law or policy. As
part of the package to transfer a defendant’s supervision to another state, the New Jersey
Probation Division normally provides the receiving state with information from police
reports and presentence investigation reports (PSI). These investigative reports may
reveal allegations of sexual conduct or a sexual component in the case. The receiving
state will have available these allegations contained in the PSI and/or police report to
possibly consider in determining whether a defendant falls within the definition of a “sex
offender” pursuant to the ICAOS rules and under the receiving state’s law and policy.
Such consideration can even occur if the allegations of sexual conduct or a sexual
component are not a part of the factual basis elicited in support of a guilty plea or the
resulting conviction. For instance, the receiving state may consider allegations contained
in the PSI or police report even when a defendant pleads guilty to a downgraded or lesser
included offense that does not include an element involving sexual conduct or an alleged
72
sexual component. As an example, the Committee considered a hypothetical situation
where a defendant resides in another state, is convicted of burglary in New Jersey and the
facts set forth in the police report indicate a sexual component of the crime; however the
defendant is not charged with or convicted of a sex offense under New Jersey law.
Although the defendant is not charged with or convicted of a sex offense in New Jersey,
the receiving state (i.e., the state of the defendant’s residence) will have available the
investigative reports prepared in the case when assessing whether the defendant qualifies
as a “sex offender” pursuant to the receiving state’s law or policy and the ICAOS rules.
As a result, the defendant may fall within the definition of “sex offender” under the
ICAOS rules and may not be able to return home until a transfer of supervision plan is
approved.
A representative from the Office of the Attorney General contacted the National
Association of Attorneys General to query how other states are handling the application
of the ICAOS rules. Responses from seven states revealed that none of the states were
providing notification to defendants of the possible consequences of the rules, either
because the state considered the application of the rules to be a collateral consequence of
the plea, which did not require notice or because the state had not yet developed any
policies or procedures to address the rules. Although other states have not implemented
any procedures to address the ICAOS rules, the Committee believes that is appropriate
for New Jersey to do so.
73
The Committee considered different ways to inform a defendant, who lives in or
may move to another state, that if there are allegations involving sexual conduct the
Compact may apply and that the defendant may not be able to return home until a
supervision plan is approved. Most members were of the view that a question should be
included on one of the plea forms because it will alert defendants, attorneys and judges to
this potential issue and will help ensure that a knowing and intelligent plea is taken.
Some members believed a question would be best placed on the Additional Questions
For Certain Sex Offenses (Megan’s Law) Plea Form, because it would capture the
majority of defendants who would be affected by the Compact Rules regarding sex
offenders. Others were of the view that a question should be added to the Main Plea
Form to provide notification to all defendants of the possible application of the ICAOS
rules, even if the defendant is not convicted of a sex offense in New Jersey. Some
members objected to including a question on either of the plea forms, being of the view
that application of the Compact Rules is a collateral consequence of a plea and adding
more questions “dilutes” the plea form. The Committee also discussed whether notice in
the plea form was “too late” and whether this potential consequence should be explained
by defense counsel prior to plea negotiations, to allow the defendant to raise any possible
objections before the plea is taken.
A discussion ensued and by a 16-2 vote the Committee determined that a
notification question should be added to the Main Plea Form. The Committee believed
that a 2-part question is appropriate, because the Compact applies to probationers and
74
parolees who may reside in or to move to another state. Question #18a explains to all
defendants that if they reside out-of-state, that return to their residence may be delayed
until a transfer of supervision plan is approved. Question #18b focuses on the transfer of
supervision to another state for defendants who may qualify as a “sex offender” under the
ICAOS rules or the law or policy of the receiving state. The Main Plea Form has been
amended to include new questions #18a and #18b, which state:
18a. Do you understand that pursuant to the rules of [YES] [NO]
The Interstate Compact for Adult Offender
Supervision if you are residing outside the State
of New Jersey at the time of sentencing that
return to your residence may be delayed
pending acceptance of the transfer of your
supervision by your state of residence?
18b. Do you also understand that pursuant to the same [YES] [NO]
Interstate Compact transfer of your supervision
to another state may be denied or restricted by
that state at any time after sentencing if that
state determines you are required to register as a
sex offender in that state or if New Jersey has
required you to register as a sex offender?
The revisions to the Main Plea Form were promulgated in Attachment 1 of AOC
Directive #14-08 (October 8, 2008).
75
3. Presentence Reports
I. Introduction
The factual basis for a plea may not correspond to the allegations and facts
embodied in a presentence report or may not be relevant to a negotiated plea
recommendation. Therefore, during the 2002-2004 term, the Criminal Practice
Committee considered various issues concerning corrections to adult presentence
investigation (PSI) reports and which version of a criminal offense should be included in
the “Offense Circumstances” section of the PSI. The Committee created a Subcommittee
during the 2002-2004 term to examine these issues. Due to changes in the Committee’s
roster, the Subcommittee was reconvened with new members during the 2004-2007 term.
During the 2004-2007 term, the Subcommittee was also asked to consider
implementing any forms and/or procedures to make the Department of Corrections and
classification personnel aware of any particular dangers or needs for medication for
prisoners being transferred into state custody following sentencing, and to make sure that
any suicide or similar mental health illness possibilities are timely brought to the
attention of institutional authorities upon commitment. With regard to the facts of the
case, the Subcommittee was asked to consider the impact upon the use of presentence
reports in Sexually Violent Predator Cases and Parole Board hearings, where presentence
reports are relied upon in subsequent hearings to determine the actual facts of the case.
The Committee considered this issue during its discussion of the version of the criminal
offense that should be included in the “Offense Circumstances” section of the PSI.
76
To fully understand the current practice and to consider practical solutions, the
Subcommittee asked the Conference of Criminal Division Managers and the Conference
of Criminal Presiding Judges to consider developing a uniform protocol (1) to
memorialize challenges and corrections made to the presentence report, (2) to incorporate
the court’s findings regarding challenges and corrections, and (3) to forward revised
presentence reports to the parties and interested entities. The Subcommittee also asked
the Conference of Criminal Presiding Judges to consider what is (or should be) the
“official version” of the offense contained in the presentence report.
The Conference of Criminal Division Managers and the Conference of Criminal
Presiding Judges forwarded their comments and recommendations on these matters to the
Subcommittee. The Subcommittee took the Conferences’ input into consideration in
drafting a report. The full Committee reviewed the Subcommittee’s Report. Set forth
below is a discussion of the pertinent issues and proposed recommendations to address
these issues.
II. Corrections To The Presentence Investigation (PSI) Report
A. Background
Challenges to the presentence report are normally raised during the sentencing
proceeding in open court. Rarely are challenges presented to the court before the
sentencing hearing. During the Criminal Practice Committee’s 2002-2004 term, a
Deputy Public Defender from Camden County appeared before the Committee and
asserted that when challenges to entries in the PSI were raised at the sentencing hearing,
77
the court often accepted changes to the presentence report proposed by defense counsel
or, based on defense counsel’s objections, decided not to consider certain disputed
information contained in the PSI for purposes of sentencing. The presentence report,
however, would not be officially amended, so any changes made or objections raised at
the time of sentencing were not contained in versions of the PSI that were forwarded to
the Department of Corrections (DOC), the Probation Division or the State Parole Board.
The Committee recognized that presentence reports were initially intended only to
aid the court during sentencing, but are now used by the Parole Board, the Probation
Division and the DOC for far different purposes. For instance, the Committee learned
that the DOC uses information contained in the PSI for classification purposes, to
determine custody status, to make job assignments, to recommend drug treatment
programs and to determine eligibility for community release. For the DOC’s purposes
the most important information in the PSI is contained in the sections describing the
circumstances of the offense, the prior court history, the employment history, the mental
health history and the defendant’s version of the offense. While the DOC looks at the
prior court history section of the PSI, it also conducts its own criminal history
investigation.
The State Parole Board uses the information that is in the PSI in essentially the
same way as the DOC. For the Parole Board, the most important information is
contained in the sections describing the circumstances of the offense, medical and mental
history, and the defendant’s version of the offense. Unlike the DOC, the Parole Board
78
does not conduct an independent investigation regarding the offender’s criminal history.
It relies exclusively on the information that is set forth in the PSI. Likewise, the
Probation Division utilizes the PSI to establish a meaningful case plan and develop
conditions of supervision.
Consequently, if changes or challenges are made to the information contained in
the PSI, often, those changes or challenges are not documented or forwarded to the
interested parties or agencies. Therefore, when the Parole Board considers whether to
release a particular defendant on parole, it could be relying on the original, uncorrected
presentence report, rather than on a corrected version of the report. That, in turn, could
have an impact on whether the defendant is paroled. Additionally, the DOC often relies
on the information in the PSI to make classification and other decisions. Incorrect
information contained in the PSI could impact upon those decisions, as well. Also, the
Probation Division relies on the PSI to develop a case plan or monitoring strategy based
upon behaviors that may not be reflected in the factual basis for the plea, but may be a
part of the PSI.
B. Types of Challenges/Corrections to PSI
The Committee identified the following common substantive challenges and/or
corrections that are made to the PSI: (1) jail credits (the Committee did not believe that
this was a significant problem); (2) facts of the offense; and (3) prior arrests or
convictions in the court history section of the PSI. Additionally, the Committee
recognized that occasionally administrative corrections are made to the PSI, such as
79
changes to telephone numbers and addresses. The Committee agreed that to maintain the
credibility of the presentence investigation process, it is imperative to develop a policy
that all corrections or changes made to the PSI should be captured and forwarded to
appropriate parties or interested entities, regardless of whether it is an administrative
change or a substantive correction.
1. Challenges to the Court History Section of the PSI
Often defendants challenge entries contained in the court history section of the
PSI. Frequently defendants assert that the court history section of the PSI contains
incorrect charges and/or dispositions. The information set forth in the court history
section of the PSI is primarily obtained from a defendant’s Computerized Criminal
History (CCH) which is maintained by the New Jersey State Police and is supported by
fingerprint comparisons. In addition, some court history entries are derived by running a
name check in the criminal Promis/Gavel9 system or municipal Automated Complaint
System (ACS) and comparing other personal identifiers, such as a social security number,
address or date of birth. Promis/Gavel and ACS searches are not verified by fingerprint
comparisons.
Normally, when presented with a challenge to an entry in the court history section
of the PSI, sentencing judges will advise defense counsel and the defendant that the
9
The Promis/Gavel system is an automated criminal case tracking system that captures information concerning
defendants who have been charged with indictable offenses and tracks the processing of those defendants from
initial arrest through appellate review. It provides the function of docketing, indexing, noticing, calendaring,
statistical reporting, and case management reporting.
80
challenge, even if accepted as true, will not change the sentence they are planning to
impose. The sentence is then imposed without consideration of the disputed entry and
without any changes being made to the PSI. Copies of the PSI, as presented to the court,
are then distributed to the Probation Department or the Department of Corrections and
Parole Board depending on the type of sentence imposed.
The Conference of Criminal Division Managers expressed the view that many
defense attorneys and defendants incorrectly assume that because the court proceeded
with sentencing after a challenge is made, that the court accepted the challenge and that
all of the PSI reports will be amended accordingly. However, unless formally requested
by the court, the Criminal Division does not edit the criminal history contained in the PSI
based solely on the assertions of defense counsel and the defendant. The Committee
reached the consensus that a defendant challenging an entry in the PSI has the burden to
provide documentation showing that the entry in the report is incorrect. This includes
challenges to court history entries, jail credits or other substantive or administrative
entries.10
Several objections were raised to the requirement that a defendant must provide
documentation to challenge an entry in the PSI. Representatives from the defense bar
explained that it is highly unlikely and probably unattainable for defendants to prove
inaccuracies in the PSI because they do not have access to criminal history record
10
The Committee also identified challenges to restitution amounts as a prevalent issue. The Committee determined,
however, that the burden on the defendant to provide documentation showing that an entry in the PSI is incorrect
does not apply to challenges to restitution amounts. See State v. Martinez, 392 N.J. Super. 307, 318-19 (App. Div.
2007) (holding that the State has the burden to prove the amount of restitution).
81
information and, therefore, objected to this recommendation. Another member raised a
concern of requiring a defendant to provide “documentation” of an alleged inaccuracy
and suggested that the defendant should only be required to provide “evidence” of an
alleged inaccuracy. Moreover, it was explained that frequently, challenges to the PSI are
raised on the date of sentencing leaving little or no time to conduct research on alleged
discrepancies.
2. Verification of Court/Criminal History
As set forth above, a frequent challenge made by defendants to the PSI involves
the defendants’ prior court or criminal history. In all counties, the Criminal Division
Manager’s office has a policy of listing all court history that is available in Promis/Gavel
and ACS, as well as information contained in the NCIC rap sheet. Some of the history
can be verified by fingerprint comparisons. Other court information is derived by
running a name check and comparing other information, such as a social security number,
address, or date of birth and is not verified by fingerprint comparisons.
In some counties the PSI contains a notation indicating the criminal history entries
that have been verified by a fingerprint comparison. While all counties are aware of the
criminal history entries that are supported by fingerprint comparison, the majority do not
note this verification in the court history section of the PSI. Instead, the court typically
notes on its version of the PSI if there is a challenge to a record in the PSI. Depending on
the offense, the court may or may not consider that record in determining the sentence.
The Committee acknowledged that while both of these procedures, fingerprint
82
comparisons and the judge’s notations on a hardcopy of the PSI, assist the judge at
sentencing, neither takes the additional step of forwarding the challenges or the judge’s
findings to the DOC, Probation or the Parole Board.
The Committee agreed that it would be helpful to know if a court record or
criminal history is verified by a fingerprint comparison. The Committee agreed that a
statewide policy should be developed regarding verification of court/criminal history
records and notations of whether or not the records are verified by fingerprint
comparisons. It is referring this issue to the Conference of Criminal Division Managers
for implementation.
3. Other Corrections or Amendments to the PSI
Occasionally, administrative changes to the PSI, such as, correcting inaccurate
telephone numbers or addresses are raised at the time of sentencing. The Committee
learned that these changes, like challenges to the court or criminal history entries, are
normally documented on a hardcopy of the PSI, but may not be forwarded to the DOC,
Probation Division or State Parole Board.
C. Referral to the Conference of Criminal Division Managers
At the request of the Subcommittee, the Conference of Criminal Division
Managers developed a procedure to ensure that challenges and corrections to the
presentence report that are accepted at the time of sentencing are incorporated into copies
of the PSI that are distributed to the parties and other entities. The procedure also
explains a method to address challenges a defendant raises to the court or criminal history
83
entries in the PSI, as well as other administrative corrections. The procedure proposed by
the Conference of Criminal Division Managers has been supported by the Conference of
Criminal Presiding Judges and is summarized in the recommendations set forth below.
D. Recommendations
The full Committee voted to adopt the following recommendations. Several
Committee members, including representatives from the Office of the Public Defender
objected to RECOMMENDATION 2, being of the view that it would place an
unreasonable burden on defendants to challenge court or criminal history entries
contained in the PSI.
RECOMMENDATION 1: Refer to the Conference of Criminal Division Managers to
develop a protocol to provide notations on the PSI of whether or not an arrest or criminal
history entry or court history entry is verified by a fingerprint comparison.
RECOMMENDATION 2: A defendant challenging an entry in the PSI has the burden
to provide documentation showing that the entry in the report is incorrect. This includes
challenges to court history or criminal history entries, jail credits or other substantive or
administrative entries.11
• If the defendant’s request to change information contained in the PSI involves
a challenge to (1) a court history entry or criminal history entry that is not
supported by a fingerprint comparison, (2) jail credit or other substantive
entries or (3) administrative entries and the challenge is accepted by the Court,
the judge shall note the changes on his or her copy of the report which should
be given the team leader. Court-approved modifications should be made in
accordance with RECOMMENDATION 3.
• If the defendant’s request to change information contained in the PSI involves
a challenge to a court history entry or criminal history entry that is supported
11
Several Committee members including representatives from the Office of the Public Defender Office objected to
the recommendation that a defendant have the burden to provide documentation that an entry in the PSI is
inaccurate. Those members are of the view that this requirement places an unreasonable burden on defendants to
challenge court history entries in the PSI.
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by a fingerprint comparison, the defendant shall resolve the dispute with law
enforcement.
• If the defendant challenges an entry in the PSI, but does not provide
documentation to support the challenge, the disputed entry will remain in the
PSI.
• The court should indicate on the record and on an affixed cover sheet whether
a challenge was made, whether it accepted the challenge and modified the
report or if it did not accept the challenge. The court should also indicate
whether it is considering the disputed entry in imposing the sentence.
RECOMMENDATION 3: Court approved changes to the PSI must be made in the
automated judiciary database.
• All changes that are made to the PSI must be approved by the court. Upon
court approval, modifications to the automated version of the PSI shall be
made by staff of the Criminal Division with proper security clearance, such as
a team leader.
RECOMMENDATION 4: If changes are made to previously distributed copies of the
PSI, revised copies of the PSI will be distributed to all parties, including the prosecutor
and defense counsel and to interested agencies, including the Probation Division, the
State Parole Board and the Department of Corrections, depending upon the sentence
imposed.
• When an original PSI report is distributed to the parties and other interested
agencies (i.e., the Department of Corrections, the State Parole Board or
Probation Division) and a successful challenge is made to the report, the PSI
will be amended in accordance with RECOMMENDATIONS 2 and 3, above,
and be redistributed.
• When revised copies of the PSI report are redistributed, they will have
transmittal sheet affixed to alert the receiving entity that the PSI has been
revised.
• Revised copies of the PSI report will be forwarded to the parties and interested
agencies who received the original version of the report.
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III. “Official” Version Of The Offense
The most current version of the PSI report (rev. 1/2006) has sections to insert the
“Offense Circumstances,” “Special Factors Relative to the Offense” and the “Defendant’s
Version”12 of the offense. Frequently, other documents are attached to the PSI detailing
the alleged facts surrounding the case, such as, copies of police reports, indictments, and
witness’ statements. Most, if not all, of these documents are generated by the prosecution
or law enforcement.
The Committee considered which “version” of the offense should be included in
the “Offense Circumstances” section of the PSI. More specifically, the Committee
discussed whether the PSI should include the police report version of the offense, the
State’s version of the offense (which may be different from the police report), the
defendant’s version of the offense and/or the factual basis for the offense that is provided
in support of a guilty plea. The Committee learned that the descriptions contained in the
“Offense Circumstances” section of the PSI can vary by county. In some counties, it is a
verbatim recitation of what is contained in police reports. In other counties, the “Offense
Circumstances” includes a recitation of what is contained in the indictment. In still
others, it is a compilation of the circumstances from a variety of sources, including facts
stated in police reports, witness statements, and the indictment, which are contained in
the discovery package. As a result, often times, the facts described as the “Offense
12
The PSI states that the defendant’s version of the offense is to be completed only upon application for PTI and
after conviction.
86
Circumstances” can be vastly different from the evidence adduced at trial or the facts that
the defendant admits to when pleading guilty.
A. Referral to the Conference of Criminal Presiding Judges
The Subcommittee referred to the Conference of Criminal Presiding Judges to
consider: (1) What is (or should be) the “official version” of the offense in the
presentence report, and (2) should the factual basis provided at the time of the plea be
incorporated into the presentence report? If so, how should this be done? The
Conference reached several conclusions. First, the Conference concluded that no
changes should be made at this time to recharacterize the “official version” of the facts in
the presentence report. It reached the general consensus that the presentence report was
designed to assist the courts in assessing the “whole person” to impose an appropriate
sentence. The Conference believes that the problems raised are more a result of “the
perception that recipients (other than the court) may use this information for different
purposes than for which it was created, as opposed to any inherent problems with the
‘official version’ contained in the report.”
The Conference pointed out that sentencing judges understand, and so should
others, that there is a difference with regard to the events that lead to the defendant’s
arrest and indictment and the eventual charges to which the defendant admits guilt or is
found guilty. The Conference stated that other agencies that come in contact with the
defendant following sentencing should utilize the presentence report in conjunction with
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the Judgment of Conviction focusing on the specific charges for which the defendant was
found guilty or pled guilty and is subsequently sentenced.
Second, with regard to incorporating the factual basis provided at the time of a
guilty plea into the PSI, the Conference ultimately reached the conclusion that the current
practice should not be altered. In reaching this conclusion, the Conference extensively
discussed various methods to possibly incorporate the actual facts admitted at the plea
hearing into the PSI. First, it rejected a procedure requiring the court to memorialize the
facts admitted at the plea. The Conference felt that this potential solution is problematic
because the parties must agree with the judge’s summary of the facts elicited as part of
the plea and there is a possibility that long after sentencing, a defendant could allege that
the judge’s notes are inconsistent with the actual plea transcript, leading to future
litigation.
The Conference also considered a suggestion to attach the plea transcript to the
presentence report, which would reveal the facts admitted at the plea. The Conference
discussed this option but wanted additional information before endorsing such a
procedure, which would be costly. It agreed to consider this possibility after being
provided with more specific details of how this procedure would be implemented. As
discussed in subsection D, infra, the Committee decided to recommend the inclusion of
disclaimer language to the offense circumstances section of the PSI. Therefore, the
Conference of Criminal Presiding Judges did not reconsider a procedure to attach to the
plea transcript to the PSI report.
88
B. Problems Arise Because of a Significant Difference Between the Facts
Supporting Alleged Charges and the Facts Supporting the
Conviction
The difference between the facts set forth in the police report, the indictment, and
the factual basis offered at the time of plea often can be significant. For example, a 75-
count indictment charging burglary and theft which is later pled down to five charges of
theft may not present an accurate picture of the defendant’s alleged criminal behavior.
The dismissed charges would be lost if the offense circumstances described in the PSI
were limited to only the crimes to which the defendant pled guilty. Both the Assistant
Director of Probation and the Executive Assistant of the Parole Board reported that it was
extremely important for their agencies to have a full account of a defendant’s purported
criminal behavior even though the defendant can be sentenced and punished only for the
crimes to which he pled guilty.
One area of concern raised by the Parole Board and the Probation Division
involves dismissed or downgraded charges of third degree endangering the welfare of a
child that may involve a sexual component of the offense. In these cases, the police
report may reveal facts describing a sexual component to the offense, however, the
conviction and/or sentencing do not reveal any application of Megan’s Law, Parole
Supervision for Life or other consequences, which accompany convictions for certain
sexual offenses. The Committee learned that, for these cases, upon request of the Parole
Board, the Public Defender’s Office has agreed to purchase plea transcripts when the
89
Parole Board has questions regarding whether a sexual component was admitted to in a
guilty plea for endangering the welfare of a child cases.
Although the Public Defender’s Office and the Parole Board have reached an
agreement on how to handle factual questions in cases involving endangering the welfare
of a child, some Subcommittee members were concerned about the impact of possible
factual discrepancies in other cases where a description of the facts admitted at the plea is
not incorporated in the PSI. For instance, the Committee was made aware that the facts
contained in the presentence investigation report are often relied upon in subsequent
hearings to determine the actual facts of cases that fall within the Sexually Violent
Predator Act (N.J.S.A. 30:4-27.24, et. seq.) cases and also at parole board hearings.
The Committee also discussed a proposal to attach the plea transcript to the PSI.
It was suggested that perhaps providing Parole Board and DOC with a transcript of the
plea hearing might be helpful, because it would reflect the crime for which the defendant
was convicted. However, there would be a cost involved in doing so, at least with respect
to the cases that are not appealed. The Committee was informed that the Appellate
Division has offered to provide the Department of Corrections and Parole Board with
transcripts after appeals are concluded. However, this procedure has not been formally
implemented.
The Committee concluded that a proposal to attach the plea transcript to the PSI
report is impractical. First, there would be considerable and unacceptable delays in the
preparation of transcripts of plea colloquies. Second, most courtrooms use tape recorders
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and there are numerous pleas recorded on one tape. Therefore, the tapes would have to
be transported from the courthouse to the transcriber as various defendants request
preparation of the transcript. Third, the PSI will already have been sent to the State
Prison or County Jail by the time the transcript is ready. By rejecting an option to attach
the plea transcripts to the PSI, the Committee concluded that there was no need to have a
pilot project that isolates certain serious crimes or certain offenses by the length of
sentence to determine how much it would cost to get transcripts made for those offenses.
Finally, the Committee also considered requiring the lawyers to agree to the facts
and to provide their agreed upon factual version to be included in the PSI. The
Committee concluded that this would be unworkable. It would be difficult for the
attorneys to agree to the facts of the case in advance of the plea or sentencing because
typically, the prosecution and defense counsel do not meet before the court appearances.
Also, it was pointed out that asking the lawyers to prepare a short summary of the
defendant’s factual statement immediately after the plea was entered was likely to slow
the flow of other cases and pleas in that courtroom.
B. Problems with Use of Facts in Police Reports
The Committee was advised that some counties only include police reports in their
presentence reports, a practice that is not acceptable. See Manual for Preparation of the
Presentence Investigation Report, Section VI, page 1 (October 10, 1997). The Manual
for Preparation of the Presentence Investigation Report states:
The facts from police and prosecutor reports on both original
and final charges need to be ascertained and described in
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summary form for the report. Sentencing judges, probation,
prosecutors, correctional institutions, parole, the Avenel
Diagnostic Center, the Appellate Court, the AOC (for
research) need this information. Only attaching police reports
or an indictment is not acceptable.
See Manual for Preparation of the Presentence Investigation
Report, Section VI, page 1 (October 10, 1997).
See also Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205
(2005) (holding that that a sentencing court may not review police reports or complaint
applications to ascertain facts surrounding a prior conviction. A later court determining
the character of a prior conviction that resulted from a guilty plea “is generally limited to
examining the statutory definition, charging document, written plea agreement, transcript
of plea colloquy, and any explicit factual finding by the trial judge to which the defendant
assented.”). Moreover, it was noted that often police reports were a verbatim description
of how the victim described the offense, and that this was not necessarily what the State
alleged as the facts of the offense. It was suggested, however, that the sentencing judge
is not always the judge who took the plea and that in this situation, it is important for the
sentencing judge to be able to review the police report. The Committee believes that,
ordinarily, a summary of the facts and charges should suffice in this regard, as opposed to
attaching police reports or indictments to the PSI.
C. Defendant’s Version of the Offense
The Committee also discussed how to ensure that the defendant’s version of the
offense was included in the presentence report. The Committee was informed that during
the PSI interview process defendants generally are asked to provide their version of the
92
offense. However, sometimes defendants may be counseled not to provide a version of
the case, because they may offer information that could support the finding of
aggravating factors to be considered at the time of sentencing or create other potential
consequences for themselves. The Committee considered developing a protocol that
defense counsel advise the defendant to provide a version of the offense to be included in
the PSI and that if no statement is made, when making future determinations, the DOC
and the State Parole Board will typically rely on the State’s version of the offense that is
contained in the PSI. 13
The Public Defender’s Office opposed this recommendation. The Committee
concluded that requiring this of defense counsel was impracticable, because it would
involve a paradigm shift in current practice. Additionally, there is a likelihood that a
defendant’s statement to a probation officer could vary from the facts admitted in open
court.
D. “Disclaimer Language”
Finally, the Committee considered adding “disclaimer” language to the PSI
following the section heading “Offense Circumstances.” It agreed that the best way to
resolve this complex issue would be to add the following disclaimer language to the PSI:
(These offense circumstances include descriptions of charges
of which the defendant may not have been found guilty by a
jury or may not have pled guilty to. This section should be
13
The Conference of Criminal Presiding Judges supported the recommendation for defense counsel to advise their
clients to provide a full and accurate “defendant’s version” to the probation officer during the presentence
investigation interview so that it can be included in the PSI report. However, this Subcommittee rejected that
proposal.
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read in conjunction with the Final Charges and the
"Defendant's Version")
The Committee is of the view that this language would sufficiently alert recipients
that the facts described in the “Offense Circumstances” may be different than the factual
basis set forth in support of a guilty plea and/or the charges for which a defendant is
convicted. The Committee believes that this recommendation would cover concerns that
have been raised regarding the use of presentence reports in Sexually Violent Predator
Cases and at parole board hearings, where presentence reports are relied upon in
subsequent hearings to determine the actual facts of the case. As a result, the Committee
concluded that there was no need for a rule amendment to indicate that individuals would
be bound by the “Offense Circumstances” version of the offense.
E. Rule Amendment Regarding Defendant’s Admissions
The Committee considered recommending a rule amendment to include language
that a defendant’s statements or admissions to a probation officer regarding his or her
version of an offense for purposes of completing a PSI cannot be used against him if the
plea is later rejected. The Committee reached the conclusion that a rule amendment was
not necessary, since, as set forth above, it rejected a requirement that defense counsel
advise their clients to provide a statement to the probation officer.
F. Recommendations
The full Committee voted to adopt the following recommendations.
RECOMMENDATION 1: The Committee recommends that disclaimer language be
added to the “Offense Circumstances” Section of the PSI to state as follows: (These
offense circumstances include descriptions of charges of which the defendant may not
94
have been found guilty by a jury or may not have pled guilty to. This section should be
read in conjunction with the Final Charges and the "Defendant's Version").
RECOMMENDATION 2: Only attaching police reports or indictments to the PSI
without a description in the “Offense Circumstances” section of the PSI is not acceptable.
The staff member should complete the “Offense Circumstances” of the PSI describing the
circumstances attending to the commission of the offense. Generally, police reports and
indictments should not be included in presentence investigation reports, however, they
may be included, if necessary, so long as the Offense Circumstances” of the PSI is also
completed.
95
IV. FORMS AND PROCEDURES TO NOTIFY THE DEPARTMENT OF
CORRECTIONS OF MEDICATION NEEDS FOR PRISONERS
The Committee was asked to consider developing forms and procedures to notify
the Department of Corrections and classification personnel of suicide risks or needs for
medication for prisoners being transferred into state custody following sentencing, and to
make sure that any suicide or similar mental health illness possibilities are timely brought
to the attention of institutional authorities upon commitment.
The Committee concluded that this was a function of the Department of
Corrections and therefore, the court should not be involved in this issue. It was noted that
any medical information that the court has will be included in the PSI. The Committee
was informed that the DOC has periodic meetings with the County Jail Warden’s
Association. The Committee will refer this matter to be considered by the DOC and the
County Jail Warden’s Association.
A. Recommendation
RECOMMENDATION 1: The Committee will refer this matter to be considered by the
DOC and the County Jail Warden’s Association.
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ATTACHMENT A
Copy of Adult Presentence Report
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100
101
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4. Ex Parte Post-Trial Communications between Judges and Jurors
I. Background
In a letter dated August 18, 2006, an attorney requested that the Administrative
Director of the Administrative Office of the Courts enact a rule or policy prohibiting all
ex parte, post-trial communications between judges and jurors. The Administrative
Director asked the Criminal Practice Committee and the Civil Practice Committee to
consider this matter.14 At the September 20, 2006 meeting, the Criminal Practice
Committee voted that post-verdict, ex parte communications between judges and juries
should be permitted when the interviews are conducted on the record. The Committee
also voted that there should be a per se prohibition against post-verdict, ex parte
communications between judges and juries when the interviews are unrecorded.
A Subcommittee was formed to examine how judges throughout the state and in
other jurisdictions handle post-verdict discussions, and to explore whether any verdicts
have been compromised due to ex parte, post-trial conversations.
On September 21, 2006, the day after Criminal Practice Committee’s meeting, the
Appellate Division decided State v. Walkings.15 In Walkings, after the jury rendered its
verdict, the judge engaged in an ex parte, unrecorded conversation with a juror regarding
the jury’s deliberations. The Appellate Division stated that it saw “no principled reason
for permitting ex parte communications concerning the jury’s deliberations once a verdict
14
The Civil Practice Committee is considering this matter separately.
15
State v. Walkings, 388 N.J. Super. 149 (App. Div. 2006).
106
has been rendered and the jury discharged.”16 The court added that “no communication
should have taken place without the defendant having been given notice of and an
opportunity to be heard and to be present at any such communication between the judge
and juror.”17 In light of Walkings, the Criminal Practice Committee considered whether
there was still a need for a Subcommittee to examine ex parte, post-verdict
communications.
The Criminal Practice Committee was divided on whether there should be a
prohibition against all ex parte, post-verdict communications between judges and jurors
or if this practice should be permitted either with or without procedural guidelines. The
Criminal Practice Committee decided that the Subcommittee should continue examining
ex parte communications, including whether the practice should be continued, and if so,
the permissible scope of those communications. The Ex Parte Communications
Subcommittee conducted an informal survey on the practice of conducting post-verdict
discussions across the state. The survey revealed that this practice varied in different
counties, and even among judges within the same county. For instance, some judges
indicated that they never speak to jurors after the verdict. Some judges thank the jurors
after the verdict, but do not engage in further communications. Other judges conduct
post-verdict conversations to thank the jurors for their service, and answer questions
about jury service, court improvements and matters of public knowledge. The majority
16
Id. at 157-159.
17
Id. at 159.
107
of judges who conduct post-verdict conversations do so off-the-record and the attorneys
are not present.
The Conference of Criminal Presiding Judges considered this issue also, and the
Presiding Judges expressed different views on conducting post-verdict discussions. The
Conference concluded that since the practice varied across the state, there was no need
for a court rule to be adopted. Rather, the decision to conduct the post-verdict
discussions should be left to the discretion of the trial judge.
The Ex Parte Communications Subcommittee met and discussed these issues. The
Subcommittee agreed that there are benefits to conducting post-verdict discussions
between judges and juries and that standards should be developed for such discussions.
The Subcommittee agreed that judges should not offer an opinion about the jury’s verdict
and that the post-verdict discussions should not include matters related to the jury’s
deliberations. The Subcommittee was unable to reach a consensus regarding the presence
of counsel during post-verdict discussions, whether the post-verdict discussions should be
held on the record and the ability of counsel to veto a judge’s decision to have post-
verdict discussions with jurors regardless of counsel’s presence. The Subcommittee
referred its conclusions to the full Committee for consideration.
Several members of the Criminal Practice Committee recognized the benefit of
holding post-verdict discussions with jurors to allow judges to express their appreciation
for the jurors’ service and to gather comments related to their experience, such as
potential areas for improvements in the court system. Some judges explained that they
108
issue questionnaires as a way to evaluate the jurors’ experience. The Committee was
informed that this practice is consistent with the recommendation of the Council for
Court Excellence that, “[t]rial judges join jurors at the close of a trial in order to
personally and informally thank them for their service to answer questions about the
court and jury systems and to provide assistance for any juror who may have experienced
extreme stress caused by the trial”.18 The Criminal Practice Committee was divided,
however, on whether post-verdict interviews should go beyond “court improvement” and
juror appreciation discussions, and if so, what procedures, if any, should be implemented.
II. Relevant Law
A. What Are Ex Parte Communications?
In Advisory Opinion 01-01, the Arizona Supreme Court Judicial Ethics
Committee explained that Black’s Law Dictionary defines “ex parte” as “actions taken
‘at the instance and for the benefit of one party only, and without notice to, or argument
by, any person adversely interested.’”19 In considering the propriety of post-trial, ex
parte communications between judges and juries, the Arizona Judicial Ethics Committee
18
Council for Court Excellence, “Juries for the Year 2000 and Beyond: Proposals to Improve the Jury Systems in
Washington,” D.C. 73 (1998).
19
Judicial Ethics Advisory Committee, Arizona Supreme Court, Advisory Opinion 01-01, “Contacting or Speaking
with Members of a Discharged Jury” at 2 (Reissued Jan. 22, 2003) (citing Black’s Law Dictionary at 597 (7th ed.
1999)). See Erskine v. Baker, 22 S.W.3d 537, 539 (Tex. App. 2000) (Ex parte communications are "those that
involve fewer than all of the parties who are legally entitled to be present during the discussion of any matter. They
are barred in order to ensure that every person who is legally interested in a proceeding [is given the] full right to be
heard according to law." The principle underlying the prohibition against ex parte communications for matters
pending in the judicial system is that the disposition of judicial matters is the public's business and ought to be
conducted in public in open court).
109
reached the initial conclusion that under a strict interpretation, “statements made by
jurors in post-verdict discussions are not ex parte communications.”20
Nonetheless, the Arizona Judicial Ethics Committee further stated that “[t]o the
extent that [the post-verdict discussions] contain information that may advantage or
disadvantage one of the parties, . . . they should be treated in the same matter as ex parte
communications.” Recognizing that “[t]he purpose of the prohibition against ex parte
communications is to ensure that every party is given the full right to be heard on matters
before the court,” the Arizona Judicial Ethics Committee found that when judges
discuss certain topics with the jury after a verdict is rendered, the Canons of Judicial
Conduct are not violated provided that appropriate safeguards are put in place to protect
the rights of the parties and to prevent prohibited communications.21
B. New Jersey Law
The relevant court rule, R. 1:16-1, provides “except by leave of court granted on
good cause shown, no attorney or party shall directly, or through any investigator or other
person acting for the attorney interview, examine, or question any grand or petit juror
with respect to any matter relating to the case.” The rule prohibits others from talking to
the jury but is silent about judges. Canon 3A(6) of the Code of Judicial Conduct
addresses ex parte communications by judges concerning a pending or impending
proceeding. It states:
20
Judicial Ethics Advisory Committee, Arizona Supreme Court, Advisory Opinion 01-01, “Contacting or Speaking
with Members of a Discharged Jury” at 2 (Reissued Jan. 22, 2003).
21
Id. at 2.
110
A judge should accord to every person who is legally
interested in a proceeding, or that person's lawyer, full right to
be heard according to law, and, except as authorized by law,
neither initiate nor consider ex parte or other communications
concerning a pending or impending proceeding. A judge,
however, may obtain the advice of a disinterested expert on
the law applicable to or the subject matter of a proceeding if
the judge gives notice to the parties of the person to be
consulted and the nature of the advice, and affords the parties
reasonable opportunity to participate and to respond.22
Nearly all of the cases in New Jersey address the issue of ex parte communications
during deliberations or post-trial communications about deliberations. The majority of
cases in this state have admonished ex parte communications between a judge and a
deliberating jury or communications regarding the jury’s deliberations either before or
after the jury has been discharged. See e.g., The Matter of Wilbur H. Mathesius, 188 N.J.
496 (2006) (trial judge violated certain Canons of the Code of Judicial Conduct by
reportedly, “entered the jury room upset and frustrated” and asked the jurors, “what the
hell” were they thinking); State v. Athorn, 46 N.J. 247 (1965), cert. denied, 384 U.S. 962,
86 S.Ct. 1589, 16 L.Ed. 2d 674 (1966) (calling back jurors for interrogation about their
deliberations after they have been discharged is an extraordinary procedure which should
be invoked only upon a strong showing that a litigant may have been harmed by jury
misconduct); State v. Walkings, 388 N.J. Super. 149 (App. Div. 2006) (the trial judge
interviewed a juror about jury deliberations after the verdict and the Appellate Division
22
The Commentary to this Canon states: “The proscription against communications concerning a proceeding
includes communications from lawyers, law teachers, and other persons who are participants in the proceeding,
except to the limited extent permitted. It does not preclude a judge from consulting with other judges, or with court
personnel whose function is to aid the judge in carrying out adjudicative responsibilities.”
111
remanded the matter for creation of a record that would disclose all communications
between the juror and the judge); State v. Basit, 378 N.J. Super. 125 (App. Div. 2005)
(where the judge entered the jury room to answer two questions posed by the jury during
deliberations and the Appellate Division ordered a new trial stating that ex parte
communications with the jury regarding its deliberations are barred); State v. Brown, 275
N.J. Super. 329 (App. Div. 1994), certif. denied, 138 N.J. 269 (1994) (where the court
held that it was improper for the trial judge to answer a jury question by entering the jury
room while the jury was deliberating without the presence of counsel and defendant).
B. Law In Other Jurisdictions
Like New Jersey, other jurisdictions have prohibited post-trial, ex parte
discussions regarding jury deliberations. See People v. Delgado, 5 Cal. 4th 312, (1993)
(where the trial judge engaged in a conversation with the jurors outside of the presence of
counsel during jury deliberations in response to a question by a juror, the California
Supreme Court stated “the trial judge should have declined to answer the juror’s question,
immediately terminated all discussion, and reminded the jury that any questions of law on
which they desired guidance must be in writing”); State v. Hilliard, 133 Ariz. 364 (App.
Div. 1982) (where the trial judge went into the jury room and had an off-the-record
discussion with the jury while they were deliberating and the Arizona Court of Appeals
held that it was reversible error for the judge to enter the jury room after the jury had
retired to deliberate regardless of the content of the communications). With regard to
post-verdict communications that do not involve jury deliberations, in an advisory
112
opinion, the Arizona Supreme Court Judicial Ethics Advisory Committee interpreted a
Canon of Judicial Conduct that is identical to Canon 3A(6) in the New Jersey Code of
Judicial Conduct and stated that discussing certain topics of public record after a verdict
has been returned and the jury has been discharged may not violate the Canons of
Judicial Conduct, provided that appropriate safeguards are put in place to protect the
rights of the parties and to prevent prohibited communications.23
The Arizona Judicial Ethics Committee set forth the following procedure for
courts to follow when engaged in post-verdict contact with jurors:
1. “[C]ounsel for all parties should be informed of the judge’s intention
to meet with the jurors and given an opportunity to be present, or to
request that the meeting be on the record, or both.”
2. “[T]he judge must admonish the jurors before the meeting that he or
she cannot answer questions regarding matters still pending (such as
sentencing) and must prohibit any statements on such matters. . . .
This does not preclude the judge from giving a general explanation
of the sentencing process in criminal cases and the range of
sentences applicable to the defendant. However, the discussion may
not include the jurors’ opinions or recommendations as to the
sentence the judge should impose in a specific case. “
3. “[T]he judge must also expressly and firmly prohibit any discussion
of the jury’s deliberations. . . . Such a topic is rife with opportunities
for disclosures that may provide grounds for a new trial. Unless the
prohibition is clearly understood and enforced, the judge is placing
himself or herself in a position where prohibited communications
must be anticipated. This alone may undermine public confidence in
the fairness of the proceedings.”
23
Judicial Ethics Advisory Committee, Arizona Supreme Court, Advisory Opinion 01-01, “Contacting or Speaking
with Members of a Discharged Jury” at 3 (Reissued Jan. 22, 2003). As set forth above, Canon 3A(6) of the New
Jersey Code of Judicial Conduct states, in pertinent part: “A judge should accord to every person who is legally
interested in a proceeding, or that person's lawyer, full right to be heard according to law, and, except as authorized
by law, neither initiate nor consider ex parte or other communications concerning a pending or impending
proceeding.”
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The Arizona Judicial Ethics Committee went on to explain that notwithstanding
the judge’s admonition and establishment of clear parameters for the post-verdict
discussion, there is a possibility that a juror may volunteer information that a judge would
be prohibited from hearing outside the presence of the parties, if at all. The Arizona
Judicial Ethics Committee stated that this information should be treated like any other
unsolicited communication to the judge. It must be promptly disclosed to all parties on
the record, and they must be given an opportunity to be heard on the matter. Depending
on the circumstances of the case and the content of the communication, the judge may be
required to disqualify himself or herself. However, the possibility of this occurrence
should not preclude a dialogue that is otherwise permissible under the canons with
appropriate safeguards in place.
Finally, Part IV of the American Bar Association (ABA) Criminal Justice
Standards addresses Judicial Relations with the Jury. In particular, ABA Criminal Justice
Standard 15-4.3 addresses Judicial Communication with Jurors and provides that after the
conclusion of trial and the completion of the jurors’ service, the court may engage in
discussions with the jurors, as long as the discussions occur on the record and in open
court with counsel having the opportunity to be present.24
24
ABA Criminal Justice Section Discovery and Trial By Jury Standards (Standard 15-4.3, “Judicial Communication
with Jurors”) (3d ed. 1996).
114
IV. Benefits Of Post-Verdict Interviews With Jurors
The Committee discussed several benefits from conducting post-verdict
discussions with jurors. First, these informal post-verdict discussions give judges the
opportunity to informally and personally thank members of the jury for their service.
This may provide useful and appropriate information about ways to improve the jury
service experience. Many judges on the Committee who have spoken to jurors after the
verdict confirmed how appreciative jurors are when a judge informally and personally
thanked them for their service. Most Criminal Division judges who adopt this practice
expressed that that it is a satisfying and uplifting experience.
Second, post-verdict discussions may help to ease the jurors’ uncertainties about
their service and their verdict. It was pointed out that a common question during post-
verdict discussions concerns the publication of the jurors’ names as part of jury selection.
Judges are able to inform jurors of why their names are made public and ease concerns
surrounding the possibility of retaliation by a defendant, by explaining the unlikelihood
of retaliation and the severe penalties if such retaliation occurs. Also, some members
noted that post-verdict discussions assist in avoiding juror contact with individuals
involved in the trial and members of the press, as they occur while others are leaving the
courthouse.
Third, frequently the post-verdict discussions address questions about matters of
public record. For instance, jurors often ask if a defendant has a criminal record, if a
defendant has pending charges, when a defendant will be sentenced or what is the
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sentencing range. Some members expressed the view that the court should be able to
explain matters of public record, because they do not involve the merits of an issue that
has not yet been decided. These members stated that but for their selection to the jury,
individual jurors could have attended any hearings in the case and would have been privy
to any matters discussed in open court, such as discovery hearings and evidentiary
motions, from which they were sequestered while serving on the jury. By responding to
questions regarding matters discussed in open court, the judge is simply providing
information that is a matter of public record.
V. Criticisms Of Post-Verdict Ex Parte Discussions Between Judges And
Juries
The Committee also discussed concerns with permitting post-verdict discussions
between judges and jurors. First, some members expressed the view that these
conversations may lead to jurors being tainted in the future. Second, some members
explained that the prosecutors and defense counsel would like to be present to speak with
jurors after the verdict is rendered to learn about the jurors thoughts on counsel’s
performance or the evidence. Some members opposed permitting judges to speak to
jurors without involvement of counsel. Others were concerned that if counsel were
present, they would remain in an adversarial role and may lodge objections or ask
questions, which would defeat the purpose of the informal discussions by creating a
“chilling effect” on the discussions. Additionally, by raising objections, counsel could
turn an innocuous issue into an adversarial one.
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Third, another concern raised involved the possibility of a juror stating something
that may lead the judge to conclude that there has been possible jury misconduct. If this
occurred the matter must be disclosed, investigated and may lead to a mistrial. Some
members disputed this concern asserting that it would be better for the trial judge to be
made aware of possible jury misconduct rather than for these concerns to go unanswered
or be revealed as a basis for an appeal or a petition for post-conviction relief.
The Committee voted and reached the following determination: eight members
were in favor of a per se prohibition on post-verdict discussions between judges and
juries in criminal cases; six members were in favor of permitting post-verdict discussions
between judges and juries in criminal cases if the discussion took place on the record;
eight members were in favor of permitting post-verdict discussions between judges and
juries in criminal cases with procedures left to the sound discretion of the trial judge,
without the Committee recommending a rule to address this issue.
VI. Recommendation
After further consideration, the Committee voted and reached the following
determination: 14 members were in favor of a per se prohibition on post-verdict
discussions between judges and juries in criminal cases; 2 members were in favor of
permitting post-verdict discussions between judges and juries in criminal cases if the
discussion took place on the record; 4 members were in favor of permitting post-verdict
discussions between judges and juries in criminal cases with procedures left to the sound
117
discretion of the trial judge, without the Committee recommending a rule to address this
issue.
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5. Transmission of Discovery in Criminal Cases
The Criminal Practice Committee and the Conference of Criminal Presiding
Judges have been concerned about the increasingly serious problems created by the
various and often incompatible, means of recording and distributing discovery. The
problem involves both software and hardware, and is not just limited to defense counsel
being able to read or see what is provided by prosecutors. Sometimes equipment used by
police departments is not compatible with the equipment prosecutor’s use. Additionally,
when a private entity uses surveillance video, prosecutors often have problems replicating
the video.
The Criminal Practice Committee has recommended the formation of a special
committee or task force to address this issue, because this problem is beyond the scope of
any existing Supreme Court Committee or working group. It recommended that either
the Administrative Director of the Courts or the Chief Justice establish a special
committee charged with making recommendations regarding discovery in criminal cases.
The Criminal Practice Committee recommended that the special committee should
include Superior and Municipal Court Judges, members of the Criminal and Municipal
Practice Committees, representatives of the Attorney General’s Office, the State Police
and Association of Police Chiefs, the Public Defender, private defense counsel and IT
personnel.
119
C. Matters Previously Sent to the Supreme Court
1. Bail Source/Sufficiency Hearings; Implementation of N.J.S.A. 2A:162-13 R.
3:26-1 and new R. 3:26-8
In the previous rules cycle, the Supreme Court amended R. 3:26-1 to adopt a new
paragraph (c), which requires defendants admitted to bail who are charged with crimes to
which the bail restrictions set forth in N.J.S.A. 2A:162-12 apply to provide the Attorney
General with information required by the statute. The Court also adopted new R. 3:26-8
to implement N.J.S.A. 2A:162-13, which authorizes the court, on the prosecutor’s request
to hold a hearing, subject to the terms and conditions stated in the rule regarding the
source of bail funds and the identity and reliability of the surety.
The Court approved the rule proposals to implement N.J.S.A. 2A:162-13 during
the 2006-2008 rules cycle. The amendments to R. 3:26-1(c) and new R. 3:26-8 were
effective September 1, 2008.
120
2. Follow-Up Report On The Implementation Of The Recordation Of Custodial
Interrogations
In State v. Thomahl Cook, 179 N.J. 533 (2004), the New Jersey Supreme Court
called for a careful and deliberate study to evaluate the protections that electronic
recordation of custodial interrogations affords both the State and criminal defendants. Id.
at 562. Following State v. Cook, the Chief Justice appointed the Special Committee on
the Recordation of Custodial Interrogations to make recommendations on the use of
electronic recordation of custodial interrogations. On April 15, 2005, the Special
Committee submitted its report to the Supreme Court. The report, as posted at
http://www.judiciary.state.nj.us/notices/reports/cookreport.pdf recommended that
electronic recordation of custodial interrogations should be required in certain cases. The
report also recommended that “the Supreme Court…periodically review the
implementation of the recording requirement” (Recommendation 9).
On October 14, 2005, the Supreme Court issued an Administrative Determination
regarding the Report of the Special Committee on the Recordation of Custodial
Interrogations. In that Administrative Determination, the Court required that effective
January 1, 2006, custodial interrogations in homicide cases were to be electronically
recorded. Furthermore, effective January 1, 2007, the recordation requirement would
apply to all other offenses specified in R. 3:17(a). The Court also asked that the
Administrative Director of the Courts and the Criminal Practice Committee work with the
Office of the Attorney General and the County Prosecutors to review the implementation
of the recordation requirement, and that a status report be filed by June 1, 2007.
121
To meet this last requirement, the Criminal Practice Committee and the
Conference of Criminal Presiding Judges recommended adoption of the Recordation of
Custodial Interrogations Reporting Form, for use in cases where: (1) the defendant was
charged with murder, aggravated manslaughter or manslaughter; and (2) the offense
occurred on or after January 1, 2006; and (3) the defendant was tried or the State filed a
notice of intent to rely on an unrecorded statement claiming an exception to the recording
requirement, and the court made a ruling thereon. That form was promulgated on July
18, 2006, via Directive #11-06. The Criminal Practice Committee subsequently
developed a revised form in order to collect data in the additional cases for which
recordation would be required as of January 1, 2007. That form was promulgated on
December 22, 2006, via Directive #22-06. Both directives require that trial judges
complete the forms and forward them to the Administrative Office of the Courts (AOC),
Criminal Practice Division. In addition, the Division of Criminal Justice created a
separate form for use by prosecutors.
On May 30, 2007, the Administrative Director filed the Report on the
Implementation of the Requirement for Recordation of Custodial Interrogations with the
Supreme Court. The report noted that as of May 1, 2007, the Criminal Practice Division
had not received any completed Recordation of Custodial Interrogations Reporting
Forms, because no cases had met the criteria that triggered completion of the AOC’s
form. In other words, no homicide cases occurring on or after January 1, 2006 had gone
to trial, and in no case had a judge ruled on the State’s intent to rely on an unrecorded
122
statement that the State claimed was an exception to the recording requirement. The
Attorney General’s Office, however, had received forms in 111 cases homicide cases that
occurred on or after January 1, 2006. In only three of those 111 cases were the custodial
interrogations not recorded, and all three cases fell under one of the exceptions to the
recording requirement. In two cases, the defendants made spontaneous statements; while
the third case involved a juvenile who was not a suspect at the time of the interrogation.
It was therefore clear that law enforcement was in complete compliance with the
recordation requirement.
The Criminal Practice Committee subsequently recommended that recordation
continue to be monitored in order to examine law enforcement’s compliance with the
requirement in non-homicide cases. After reviewing the form submissions the
Committee is confident that, based on the available information, law enforcement has
been making every effort to comply with the recordation requirement. Although the
information that we have received is admittedly limited, we are not aware of any
difficulties or issues pertaining to recordation that would cause us to question that
conclusion. As a result, the Committee forwarded the follow-up report on the
Implementation of the Recordation of Custodial Interrogations, dated October 21, 2008,
to the Acting Administrative Director of the Courts with a recommendation that there is
no longer a need to continue monitoring law enforcement’s compliance with the
recordation requirement, and that such monitoring should immediately cease.
123
D. Rule Proposals and Other Issues Considered and Rejected
1. Alibi Rule – State v. Bradshaw - R. 3:12-2
The Committee considered whether a rule amendment was necessary in light of
the Appellate Division decision in State v. Bradshaw, 392 N.J. Super. 425 (App. Div.
2007), aff’d on other grounds and remanded, 195 N.J 493 (2008), where the Appellate
Division held that the alibi notice requirements in R. 3:12-2 were unconstitutional as
applied to a defendant’s own testimony concerning his whereabouts at the time of the
alleged crime. The Supreme Court granted certification and declined to address the
constitutional issue finding that it was not necessary to resolve the appeal. Rather, the
Court interpreted R. 3:12-2 to “mean that only in the rarest of circumstances should the
‘interest of justice standard’ result in a prohibition of a defendant’s own alibi testimony
as an appropriate sanction.” State v. Bradshaw, 195 N.J. at 507. The Committee
discussed whether it is still necessary to consider an amendment to R. 3:12-2 in light of
the Supreme Court decision and determined that no rule change is necessary.
124
2. Bail Forfeiture Rule – R. 3:26-6
In letters dated June 14, 2007 and July 18, 2007, a private attorney requested that
the Acting Administrative Director propose an amendment to R. 3:26-6, which addresses
bail forfeiture procedures. The attorney raised an issue that once a judgment has been
entered and a preclusion notice is sent by the superior Court Clerk’s office to the surety,
the Clerk will not stay the preclusion process despite the fact that the surety and county
counsel have entered into a consent agreement which will be submitted to the Superior
Court for approval. The attorney suggested amending R. 3:26-6 to address this concern.
The Committee considered a proposed amendment to R. 3:26-6 to specifically provide
for the automatic stay of a surety’s obligation to satisfy in full the default judgment upon
the filing of a motion seeking an order setting aside the forfeiture or default judgment.
The Committee referred the matter to the Bail Judge Subcommittee, which
reviewed and discussed the matter at its March 27, 2008 meeting. Assignment Judge
Donald Volkert, former chair of the Bail Judge Subcommittee, provided a letter response
to the Committee explaining that upon becoming aware of this issue, the Superior Court
Clerk’s Office changed the procedures whereby a consent agreement signed by the
parties would stay preclusion procedures. After thirty days, the Clerk’s Office makes
follow up contact with the parties to ensure that the consent order has been approved by
the judge. The Bail Judge Subcommittee view was that this change in procedures by the
Clerk’s Office resolves the issue raised by the private attorney. The Bail Judges decided
to take no further action and recommended that the Committee not amend the R. 3:26-6.
125
The Committee agreed with the recommendation from the Bail Judge Subcommittee that
no rule change is necessary.
126
3. Electronic Recordation of Custodial Interrogations – R. 3:17
Currently, R. 3:17(a) states that unless an exception applies, custodial
interrogations conducted in a place of detention must be electronically recorded when a
person is charged with certain offenses. A question has arisen as to whether the “charged
with” language in R. 3:17(a) creates confusion as to the “start time” of the recordation.
The concern is that the current wording of R. 3:17(a) could be interpreted as requiring
recordation only after a person has actually been charged with one of the applicable
crimes.
The purpose of the rule, which was recommended in the Report of the Supreme
Court Special Committee on Recordation of Custodial Interrogations, and in light of State
v. Cook, 179 N.J. 533 (2004), was to cover all aspects of the interrogation, not just those
when a defendant is formally charged with the covered offense. In recommending that
the Court adopt R. 3:17, the Special Committee on the Recordation of Custodial
Interrogations clearly intended that the entire interrogation be recorded, beginning at the
point at which Miranda warnings must be given:
The Committee recommends that electronic recording occur when a
custodial interrogation is conducted in a place of detention. The
Committee further recommends that the recording be “stem-to-
stern”, i.e. the entire interrogation must be recorded, rather than
just the final statement. Requiring stem-to-stern recordation is . . .
essential if the benefits attendant to electronic recordation are to be
fully realized. Recording should begin at, and include, the point at
which Miranda warnings are required to be given. [See Report of
the Special Supreme Court Committee on Recordation of Custodial
Interrogations at 37 (April 15, 2005)]
127
Moreover, Recommendation 3 of the Report of the Supreme Court Special
Committee on Recordation of Custodial Interrogations was adopted by the Supreme
Court in its Administrative Determination dated October 14, 2005. Recommendation 3
states: “Electronic Recording should occur when a custodial interrogation is being
conducted in a place of detention and should be begin at, and include, the point at which
Miranda warnings are given.”
A representative from the Attorney General’s office explained that the rule need
not be amended because there is no confusion with regard to the start time of the
recordation. The Committee agreed that no rule change is necessary.
128
4. Hypnotically Refreshed Testimony – State v. Moore
In State v. Moore, 188 N.J. 182 (2006), the New Jersey Supreme Court held that
the hypnotically refreshed testimony of a witness in a criminal trial was generally
inadmissible, and that State v. Hurd, 86 N.J. 525 (1981), should no longer be followed in
New Jersey. In State v. Hurd, the Court established guidelines for the admissibility of
hypnotically refreshed testimony proffered by a witness in a criminal trial.
In Moore, the Court further held that, based upon Rock v. Arkansas, 483 U.S. 44,
107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), which held that a defendant could not be denied
his constitutional right to testify because of a state rule that excluded post-hypnotic
testimony, a defendant may testify at his own trial after having been hypnotized. The
Court requested that the Committee consider and recommend improvements to both the
Hurd Guidelines and the Fertig (Hypnotically Refreshed Testimony) model jury charge.
The Attorney General’s Office conducted a survey on the use of a defendant’s
hypnotically refreshed testimony in criminal cases. The survey revealed that the use of a
defendant’s hypnotically refreshed testimony has arisen in very few cases.
Representatives from the Office of the Public Defender agreed that the use of a
defendant’s hypnotically refreshed testimony arises rarely. The Committee reached the
consensus that because this issue arises on rare occasions, there is no need develop a
procedure or to propose a rule to address the use of a defendant’s hypnotically refreshed
testimony in criminal cases at the present time.
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5. State v. Luna – R. 3:20-2 - Defendant’s Waiver of Presence at Trial
In State v. Luna, 193 N.J. 202 (2007) the Court held that when the trial court has
actual knowledge, before or during trial, that a defendant is incarcerated and thus unable
to appear at trial, the court must conduct an inquiry before proceeding with trial to
determine if defendant’s absence is knowing and voluntary. The Court further held that
when the defendant’s incarceration first comes to light after trial, the defendant may bring
a post-trial motion, pursuant to R. 3:20-2, for a new trial. At the post-trial hearing the
defendant bears the burden to show that the failure to attend trial was due to incarceration
and there was no ability or means to advise his or her attorney or the court, directly or
indirectly, of this fact. After giving the State the opportunity to respond, the court must
determine if the defendant’s absence was voluntary. The Court rejected the defendant’s
request for the Court to adopt formal guidelines for use by trial judges after finding a
waiver or to adopt a rule requiring judges to evaluate certain factors in all cases. The
Court determined that trial judges have the discretion in deciding whether to start a trial
when a defendant is inexcusably absent.
R. 3:20-2 currently provides: “[a] motion for a new trial based on a claim that the
defendant did not waive his or her appearance for trial shall be made prior to sentencing.”
The Committee determined that R. 3:20-2 need not be amended in light of Luna to permit
a defendant to file a post-trial motion for a new trial. While the Committee did not
recommend a rule amendment, it agreed that absent extraordinary circumstances,
130
defendants should not be tried in absentia if they are incarcerated before they can be
produced for trial.
131
6. State v. McAllister
This is a matter held for future consideration from the 2004-2007 term. In State v.
McAllister, 184 N.J. 17, 22 (2005), the defendant was convicted at a jury trial of forgery
and theft. The State had alleged that, while employed as a caretaker for an elderly
couple, she was forging their checks and stealing from their bank accounts. The
investigation had begun when the couple received their own canceled checks, which they
had not written, that had been endorsed by “McAllister” and marked with an account
number. The Prosecutor’s Office thereafter sent a Grand Jury subpoena to the
defendant’s bank and received records showing that the defendant had deposited monies
from the couple’s account into hers. Id. at 20-21
Prior to trial, the defendant filed a motion to suppress the bank records and argued
that a Grand Jury subpoena was insufficient to obtain the records, which was denied.
After a jury trial, the defendant was convicted of forgery and theft.
On appeal, defendant reasserted her argument that bank records must be obtained
via a search warrant, with a probable cause standard. In the alternative, the defendant
argued that she should have been notified of the subpoena so that she could have moved
to quash the subpoena. Id. at 22.
The State argued that no other state requires a probable cause standard and urged
the Court “to reaffirm the preexisting standard applicable to grand jury subpoenas duces
tecum—that documents requested are relevant to the grand jury’s investigation.” The
State further argued that notice to the subject that his or her bank records are being sought
132
during a criminal investigation “would violate grand jury secrecy and play havoc with the
grand jury’s investigative function.” Id. at 23-24.
The New Jersey Supreme Court held that, under the New Jersey Constitution,
account holders do have a reasonable expectation of privacy in their bank records. Id. at
32-33. The Court stated that there are circumstances that will arise that will justify state
intrusion on that interest. Id. at 33. The Court rejected the defendant’s argument that
account holders should receive notice of the subpoena. The Court held that, “[s]imply
stated, because providing notice to every account holder whose bank records are
subpoenaed may unduly impair the grand jury's ability to investigate, the legitimate needs
of law enforcement warrant a workable and practical exception.” Id. at 38. The Court
noted investigations concerning money laundering, identity theft, insurance fraud, and
terrorist activity as examples of the importance of the Grand Jury obtaining such records
in secrecy. Ibid.
The Court further rejected imposing a standard of probable cause and reaffirmed
the standard of relevance. The Court noted In re Addonizio, 53 N.J. 107 (1968), where it
had held that “grand juries have never been bound only to investigate charges that were
already supported by probable cause. State v. McAllister, 184 N.J. at 34-36. The Court
affirmed the defendant’s conviction. It also referred “this issue to the Criminal Practice
Committee for further study of the benefits and burdens of enhanced protections for bank
records” and “the need, if any, for additional grand jury procedures.” Id. at 42-43
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The Criminal Practice Committee formed a Subcommittee, which informally
surveyed prosecutors and defense counsel as to the handling of bank records in both the
state and federal systems.
In the state system, the prosecutor obtains records as set forth in State v.
McAllister. If the defendant is indicted, the records are released as part of the discovery.
If the defendant has never been arrested, and is not indicted, the prosecutor closes the file
and no notice is given to the target of the investigation. This file may be closed
permanently, or the prosecutor may conclude that the file should be closed pending
further evidence that may develop in the future.
In the federal system, when a prosecutor initiates a Grand Jury investigation, the
prosecutor sends a Federal Criminal Rule 6(e) letter to the judge who is assigned to the
Grand Jury. A 6(e) letter is sent to the judge in all cases, including those cases involving
the subpoena of bank records, to advise the judge that the federal prosecutor is opening
an investigation. Grand Jury subpoenas issued during the investigation are exempted
from notice requirements under the Federal Right to Financial Privacy Act. 12 U.S.C. §
3420.
The Subcommittee reached a consensus that the procedures enumerated in State v.
McAllister strike a fair balance between an account holder’s right to privacy and the
legitimate needs of law enforcement to investigate alleged criminal activity. The
Subcommittee discussed its conclusions with the full Committee. The Committee agreed
with the Supreme Court’s conclusion that relevance is an appropriate standard for a
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Grand Jury subpoena. The Committee further agreed that notice of the subpoena to an
account holder could cause that target to flee and/or remove funds from the account, and
could otherwise thwart or destroy an investigation.
The Committee ultimately concluded that no further recommendations need be
made to the Supreme Court in this area.
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7. Conditional Discharge Appeals – R. 3:23-2
In its 2004-2007 Report, upon request of the Municipal Court Practice Committee,
the Committee proposed amendments to R. 3:23-2 that would: (1) permit a defendant
who has been granted a conditional discharge, pursuant to N.J.S.A. 2C:36A-1, following
the denial of a motion to suppress evidence to appeal the denial; (2) change the word
“clerk” to “court administrator”; and (3) distinguish separate appeals by the defendant
from appeals by the State. The reason for the first proposal was that pursuant to N.J.S.A.
2C:36A-1, a defendant who enters a guilty plea as part of a conditional discharge also
receives a driver’s license suspension and there is no mechanism to appeal from the
denial of the motion to suppress, a process that is not currently provided for in the court
rules because no judgment of conviction is entered. Other defendants who do not enter a
guilty plea as part of conditional discharge do not receive a driver’s license suspension.
With regard to the first rule proposal, during the 2004-2007 term, the Court asked
for further research as to how appeals of motions to suppress are handled when a
defendant is entered into Pretrial Intervention and a driver’s license suspension or
professional license suspension is ordered. As a result, the Committee continued to
review this matter.
Thereafter, on April 17, 2007, the Appellate Division issued State v. Thomas, 392
N.J. Super. 169 (App. Div. 2007), which held that the trial court erred by imposing a
lower sentence than that negotiated between the State and N.J.S.A. 2C:35-12, based on
the court's belief that the agreement violated defendant's constitutional rights because it
136
imposed a greater sentence after the defendant invoked his right to a suppression hearing.
In Thomas, the defendant was charged with possession of a controlled dangerous
substance in a school zone. Pursuant to Brimage Guidelines, the State calculated the
following pleas for the three categories: four years of prison, with two years of parole
ineligibility for the pre-indictment offer; five years of prison, with thirty months of parole
ineligibility for the initial post-indictment offer; and five years of prison with thirty-three
months of parole ineligibility for the final post-indictment offer. Id. at 179. The
defendant filed a motion to suppress, which was denied and thereafter entered a guilty
plea which called for a sentence of five years imprisonment with thirty-three months of
parole ineligibility. At sentencing the trial court imposed a sentence of five years of
prison, with thirty months of parole ineligibility (as opposed to the thirty-three months of
parole ineligibility), “because that was the maximum offer the State could have made
under the Guidelines if defendant had not moved to suppress.” The trial court opined that
to do otherwise would “penalize defendant for exercising his constitutional right to a
suppression hearing.” Id. at 180.
The Appellate Division disagreed with the trial court’s conclusion and held:
[a]lthough it is true that plea agreements are
unacceptable if based on an illegal term or condition,
we disagree with the proposition that an agreement to
forego filing a motion to suppress constitutes such an
illegal term or condition. The prosecutor's offer of a
harsher sentence because defendant filed a motion
cannot be deemed to have violated any of his rights.”
[Id. at 180 (citing Pressler, Current N.J. Court Rules,
comment 4.3 on R. 3:9-3 at 822 (2007))].
137
The Committee determined that Thomas case was dispositive of this issue
regarding appeals of motions to suppress in conditional discharge cases, because the
Appellate Division essentially held that the inability to file a motion to suppress is not an
illegal term or condition of a plea. Thus, from the Committee’s perspective, it follows
that the inability to appeal the denial of a motion to suppress would not be an illegal
condition of a plea. Thus, in the Committee’s view, no rule amendments were necessary.
138
8. State v. Kent
This matter was discussed during the prior term after the Committee’s report was
filed. In State v. Kent, 391 N.J. Super. 352 (App. Div. 2007) the Appellate Division held
that the Confrontation Clause of the Federal Constitution and the testimonial/non-
testimonial standards of admissibility set forth in Crawford v. Washington, 541 U.S. 36,
124 S. Ct. 1354, 158 L.Ed.2d 177 (2004) apply to drunk driving prosecutions in
municipal court. It asked the Legislature, the Criminal Practice Committee and the
Municipal Court Practice Committee to:
consider the adoption of statutes or court rules patterned after
N.J.S.A. 2C:35-19 that would create similar notice-demand
requirements for State Police lab reports used in DWI trials
and also for blood sample certificates generated under
N.J.S.A. 2A:62A-11. We do not suggest any particular
timelines or procedures for such notice-demand provisions,
but instead defer to the prospective development of
appropriate measures through such rule-making or
legislation.”
[State v. Kent, 391 N.J. Super. at 382.]
The Kent court also asked that the Legislature and Committees “explore means of
abating the time and travel burdens upon nurses, chemists and other third-party witnesses
who now will be constitutionally required to travel to municipal court for DWI trials,”
such as “the feasibility of remote video conferences at trials or de bene esse videotaped
depositions, so that such witnesses need not physically appear in municipal courts late at
night and whether the scheduling or venues of DWI trials might be altered to minimize
logistical burdens on medical providers and laboratory personnel, including the creation
139
of special daytime court calendars to accommodate such witnesses.” State v. Kent, 391
N.J. Super. at 383.
At the May 2007 meeting, a Joint Municipal/Criminal Subcommittee was formed
to address these issues. On May 16, 2007, the Supreme Court granted certification in
State v. Buda, State v. Berezansky, State v. Sweet, and State in the Interest of J.A., which
addressed similar confrontation issues as those raised in Kent. The Subcommittee
decided to await these rulings to reconvene. In June 2008, the Supreme Court decided
State v. Buda, 195 N.J. 278 (2008); State v. Sweet, 195 N.J. 357 (2008) and State in the
Interest of J.A., 195 N.J. 324 (2008). In State v. Sweet, the Court held that ampoule
testing certificates at issue in State v. Sweet and the breath testing instrument inspection
certificates at issue in State v. Dorman (companion case to Sweet) are hearsay statements,
but are admissible under the business records exception to the hearsay rule codified at
N.J.R.E. 803(c)(6). State v. Sweet, 195 N.J. at 371. The Court concluded that those
records are nontestimonial under Crawford v. Washington and are thus inadmissible
under the Confrontation Clause. State v. Sweet, 195 N.J. at 374. The Committee
determined that in light of these decisions, it need not consider this issue further at this
time.
140
E. No Action Necessary
1. Comprehensive Review of Existing Plea Forms
This matter was held over for future consideration from the 2002-2004 term.
During the 2002-2004 term, the Committee considered whether the time had come for a
comprehensive review of the plea forms, including a review of which questions should be
considered relevant. Several members of the Committee felt that the forms were
becoming unmanageable, largely because there were so many of them and they were in
need of nearly constant revision. It was noted, for example, that the plea forms that had
been revised and disseminated in August 2002 were in need of further revision within a
month because of changes in the law.
The Committee also discussed whether several new surcharges should be added to
the forms. One member thought that all substantial collateral consequences, including
surcharges, should be on the forms. However, this was deemed to be impractical, as
there are dozens of State and Federal collateral consequences of a guilty plea; e.g.,
N.J.S.A. 45:15C-6 provides that tree expert certification may be revoked or temporarily
suspended if a person is convicted of a crime. Another member felt that all surcharges
should be removed from the forms. It was also suggested that there be a separate sheet
for all fines or penalties, so that only one form would have to be changed when the law
was revised.
Finally, the Committee agreed that discussions should continue with the
Administrative Office of the Courts about the possibility of computerizing the forms (for
141
the relevant information generated by offense and date), and placing them on the
Judiciary’s website.
The Committee could not reach a consensus on the first two issues, and decided to
continue its deliberations on these issues during the next term. Since that time, all
Administrative Directives, including those that promulgated the latest versions of the plea
forms, have been placed on the Judiciary’s website. The Committee has not revisited the
two remaining issues, and will continue to seek computerized forms and judgments
which can be generated for each case individually.
The Committee revisited this matter during the 2007-2009 term and was informed
that all of the all Administrative Directives including those that promulgated the latest
versions of the plea forms have been placed on the Judiciary’s website. The individual
plea forms will be placed on the judiciary website under the FORMS tab. The most
recent plea forms will be posted at http://www.judiciary.state.nj.us/forms.htm
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2. Public Access to Court Records
The Supreme Court Special Committee on Public Access to Court Records,
chaired by Justice Barry Albin, was charged in 2006 to conduct a comprehensive review
of the provisions of R. 1:38, “Confidentiality of Court Records” and to recommend any
changes to the rule necessary to clarify or facilitate the public’s access to court records.
The Committee considered whether it should submit formal comments to the report. A
discussion ensued and the Committee determined that because the membership reflected
various organizations and individuals with differing views, the members should inform
their respective organizations about the report and file comments individually.
143
F. Matters Held for Future Consideration
1. Bail Review Procedures
The Chief Justice asked the Committee, the Conference of Criminal Presiding
Judges and the Conference of Municipal Court Presiding Judges to review and provide
recommendations for bail review procedures in light of the Report on Procedures
Following in the Setting and Consolidation of Bail on Charges Filed Against Defendant
Jose Lachira Carranza, issued by retired Judge Arthur D’Italia on August 29, 2007. The
Committee considered whether R. 3:26-2 should be amended and referred the matter to
the Conference of Criminal Presiding Judges for review and comment. If necessary, the
Committee will review this matter further after the Conference of Criminal Presiding
Judges completes its work.
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2. Criminal Defendants and Civil Commitment
The Office of the Attorney General asked the Committee to consider adopting
standard language to notify the criminal court, defense attorney and prosecutor when a
defendant who is in custody awaiting trial or sentencing or who is at the police station
exhibits behavior of mental illness that may lead to civil commitment and the defendant
is transferred to a screening center for an evaluation. It was suggested that the
notification language be included in court orders transferring a defendant out of county
jail and to a screening center to evaluate the defendant’s behavior.25 The reason for this
proposal is because according to the civil commitment laws, if the defendant is in need of
civil commitment and cannot be treated in jail, the law enforcement authority must seek
appropriate treatment for that person. Currently, when a defendant is transferred out of
county jail for an evaluation, notice of the transfer is not given to the judge, defense
attorney or prosecutor in the criminal case. This is primarily because the civil
commitment matter is typically handled by County Counsel, with defense representation
by the Public Advocate, and a screening judge, often a Municipal Court Judge.
If an evaluation reveals a need for civil commitment, the screening judge can issue
a temporary commitment order. While committed, the defendant can be subject to
psychological evaluations in accordance with the civil commitment laws and policies.
25
The commitments at issue fall under R. 4:74-4. The proposal does not address defendants who are civilly
committed after being found not guilty by reason of insanity (NGRI) or defendants who are found incompetent to
stand trial.
145
While the defendant is away from jail, the criminal judge, county prosecutor and defense
counsel in the criminal case are not given updates on the defendant’s status.
Specific concerns arise regarding: (1) the lack of notice of the transfer to the court,
the prosecutor and the defendant’s attorney in the criminal case; (2) the inability of the
criminal court and the prosecutor to receive information related to defendant’s
whereabouts and the likely date of release; and (3) the discoverability of information
contained in reports and notes of psychiatric evaluations that may impact the criminal
proceedings. The Committee considered a proposal to include notice to the prosecutor,
defense counsel and the criminal judge when a defendant is transferred out of county jail
to a screening center, Anne Klein or other facility.
The Committee also discussed the confidentiality of records and reports generated
as a result of a civil commitment. Because these records are confidential, they are not
automatically sent to the court, the prosecutor or the defendant’s attorney in the criminal
case. Nonetheless, these records or reports may contain information relevant to the
criminal court proceedings. It was suggested that the confidential records and reports
could only be obtained by a court order for use in the criminal case. The Committee
considered proposed modifications to the detainer to address this issue. The Committee
agreed to refer this matter the Civil Practice Committee with a suggestion to form a Joint
Criminal/Civil Committee to resolve these issues.
146
3. Disposition of Municipal Court Matters in Superior Court
The Conference of Criminal Presiding Judges and Municipal Presiding Judges
have been jointly working on an Administrative Directive clarifying a paperwork flow
when Superior Court judges dispose of Municipal matters that accompany indictable
charges, instead of returning the non-indictable matters to the Municipal Court. The
Conference of Criminal Presiding Judges referred this matter to the Criminal Practice
Committee for input from the County Prosecutors’ Association and the Office of the
Public Defender. The Presiding Judges are of the view that there should be a statewide
policy regarding disposition of these matters. Currently, the practice varies from county
to county.
There are several reasons for creating a uniform policy to address the disposition
of municipal court matters in Superior Court. In some counties, all matters, non-
indictable and traffic are sent to the Superior Court with the indictable and are addressed
at the Superior Court level. In other counties, the non-indictable or traffic matter is sent
back to the municipal court for disposition. In still others, the indictable and non-
indictable matters are addressed, but the traffic matters are not addressed but sent back to
the municipal court. All agreed that in order for a uniform Directive to be successfully
implemented, it should set forth a course of action that all interested parties will follow.
The Committee discussed a proposed Directive and determined that this proposal should
be considered by the County Prosecutors’ Association and by the Public Defender for
147
their input. The Committee is forwarding this matter to County Prosecutors’ Association
and by the Public Defender’s Office to consider the proposed procedure.
148
4. Model Jury Selection Questions for Criminal Cases
Administrative Office of the Courts’ Directive #21-06 (Dec. 11, 2006), as
modified by Directive #4-07 (May 16, 2007) set forth jury selection standards and the
Model Jury Voir Dire questions for criminal and civil cases, that were recommended by
the Special Committee of Peremptory Challenges and Jury Voir Dire, as approved by the
Supreme Court. The Civil Practice Committee is recommending that the Model Jury
Selection Questions for Civil Cases be included in the appendix of the Court Rules. The
Criminal Practice Committee considered whether to make a recommendation to the Court
to include the current Model Jury Selection Questions for Criminal Cases in the appendix
of the court rules.
The Committee discussed whether only the Model Jury voir dire questions should
be included in the appendix of the court rules or if the Directives, in their entirety, should
be included in the appendix of the court rules. Some members were of the view that it
would be best to include the Directives in their entirety, because they containing the
Model Jury questions, along with necessary explanations for the questions.
The Committee believes that the procedures set forth in Directive #21-06 and
Directive #4-07 contain valuable information to accompany the Model Jury voir dire
questions. The Committee determined that both Directives should be included in the
appendix of the Court Rules. During the term, the Committee was informed that the
Special Committee on Peremptory Challenges and Jury Voir Dire was considering
149
possible revisions to the Directives. The Committee will revisit this proposal after the
Special Committee on Peremptory Challenges and Jury Voir Dire completes its work.
150
5. Municipal Appeals
The Committee was asked to consider a recommendation that R. 3:23-3 should be
amended to require that a notice of appeal from a judgment or order entered by a
Municipal Court state the grounds for the appeal. A member of the Committee explained
that the court has the discretion to order the parties to file briefs, and judges could do so
for the parties to expand upon issues that may not be clear. The Committee then
discussed whether the trial de novo system was based upon the Constitution, statutes, or
court rules. In light of the varying opinions on the subject, the recommendation that R.
3:23-3 be amended was withdrawn, and the Committee agreed to table the issue for
further review of the trial de novo system. The Committee will continue to consider this
issue during the next term.
151
6. Nicole’s Law – N.J.S.A. 2C:14-12 and N.J.S.A. 2C:44-8
N.J.S.A. 2C:14-12 and N.J.S.A. 2C:44-8, frequently referred to as Nicole’s Law
permit the court (1) to issue an order as a condition of bail or (2) to continue a prior order
or issue a new order upon conviction, prohibiting a defendant charged with or convicted
of a sex offense from having any contact with a victim, including restraining the
defendant from entering a victim’s residence, place of employment, business or school
and from harassing or stalking the victim or victim’s relatives. The law defines “sex
offense” by referencing Megan’s Law, N.J.S.A. 2C:7-2. Similar to Domestic Violence
restraining orders a court order entered pursuant to Nicole’s Law can remain in effect
after a sentence to probation or incarceration has been served. The Committee was
advised that the Conference of Criminal Presiding Judges and Conference of Criminal
Division Managers were drafting an order and procedures to implement Nicole’s Law. In
addition, the AOC formed a Joint Family/Criminal Committee, with judges and AOC
staff participating, to create procedures to prevent entry of conflicting orders by a
criminal judge and a family judge.
If necessary, the Committee will review this matter further after the order and
procedures to implement Nicole’s Law are finalized by the AOC.
152
7. Preservation of Evidence
Several years ago the Office of the Public Defender proposed a rule
recommendation mandating the preservation of evidence by prosecuting authorities.
Shortly thereafter, the Division of Criminal Justice issued a Directive addressing the
storage of DNA evidence. As a result, storage of DNA evidence has not been a problem
and the rule proposal was not considered extensively by the Committee. The Public
Defender’s office has reported, however, that the preservation of large physical evidence
is still an issue. Given technological advances, the Office of the Public Defender asked
that the Committee reconsider this topic. A discussion ensued and the Committee created
a Subcommittee comprised of representatives from the Attorney General’s Office,
Prosecutor’s Office, Office of the Public Defender and private defense bar to address this
issue.
153
8. Pretrial Intervention Guidelines
This is a matter held for future consideration from the 2004-2007 term. In light of
a recent opinion, State v. Moraes-Pena, 386 N.J. Super. 569 (App. Div), certif.. denied,
188 N.J 492 (2006) in which the Appellate Division reversed the trial court’s order
admitting the defendant into the Pretrial Intervention (PTI) Program over the prosecutor’s
objection, the Committee was asked to consider whether the PTI Guidelines should be
updated. Members of the Committee were asked to forward any proposed changes to the
Committee staff at the Administrative Office of the Courts. This Committee is
continuing to consider this topic.
154
9. Recording Requirements for Out-Of-Court Identifications
This was a matter held for future consideration from the 2004-2007 term. In State
v. Delgado, 188 N.J. 48 (2006), the New Jersey Supreme Court exercised its supervisory
powers under the New Jersey Constitution “to require that, as a condition to the
admissibility of an out-of-court identification, law enforcement officers make a written
record detailing the out-of-court identification procedure, including the place where the
procedure was conducted, the dialogue between the witnesses and the interlocutor, and
the results.” The Court added that “[w]hen feasible, a verbatim account of any exchange
between the law enforcement officer and witness should be reduced to writing. When not
feasible, a detailed summary of the identification should be prepared.” Id. at 63. The
Court also noted that although electronic recordation was advisable in stationhouse
interviews where recorders might be available, it was not mandated. Ibid. The Court
requested that the Committee prepare a rule that required that law enforcement officials
record out-of-court identification procedures consistent with the opinion. The Committee
considered a rule proposal and had several comments. The Committee is continuing to
review the proposal.
155
10. Review of Verdict Sheets at Charge Conference
The Committee consider adding a requirement to the court rules that the verdict
sheet be reviewed and discussed at the charge conference as well as the charge itself,
because, notwithstanding the fact that the oral charge may control, the wording and form
of the verdict sheet can sometimes be critical and there should be an opportunity to object
to the verdict sheet and for the objection to be placed on the record. The Committee
discussed the use of verdict sheets in every case or just in multiple-count cases. The
Committee reviewed a rule proposal and had several comments. The Committee is
continuing to review this proposal.
156
11. R. 3:14-1(j) – Technical Amendment
The Committee considered a technical amendment to R. 3:14-1(j) in recognition of
the rights accorded civil partners. The Civil Practice Committee is making similar
amendments to the Part I and Part IV rules. Several members pointed out that other
paragraphs of R. 3:14-1 many need to be amended because they may be outdated. The
Committee is continuing to review this topic.
Respectfully Submitted,
Hon. Edwin H. Stern, Chairman
Hon. Lawrence Lawson, Vice-Chairman
Hon. Christine Allen-Jackson
Hon. Linda G. Baxter
Hon. Marilyn C. Clark
Hon. Gerald J. Council
Hon. Frederick P. DeVesa
Hon. Garry J. Furnari
Hon. Albert J. Garofolo
Hon. John C. Kennedy
Hon. Joseph F. Lisa
Hon. James F. Mulvihill
Hon. Ramona A. Santiago
Hon. Sheila A. Venable
Hon. Barbara Ann Villano
J. Patrick Barnes, Esq.
Robert D. Bernardi, Esq.
Robert A. Bianchi, Esq.
Alan Dexter Bowman, Esq.
Milagros Camacho, Esq.
John M. Cannel, Esq.
Lori Caughman, Esq.
Philip James Degnan, Esq.
John J. Eastlack, Jr., Esq.
Deborah Gramiccioni, Esq.
Dale Jones, Esq.
Henry E. Klingeman, Esq.
James P. Lynch, Esq.
John H. McMahon, Esq.
Boris Moczula, Esq.
Dennis Murphy, Esq.
Brian Neary, Esq.
Joan H. Richardson-Bowser, Esq.
Simon L. Rosenbach, Esq.
Elizabeth H. Smith, Esq.
Tracy Thompson, Esq.
AOC Staff: Joseph J. Barraco, Esq.
Vance D. Hagins, Esq.
Melaney S. Payne Esq.
February 17, 2009
2007-2009 Term
TABLE OF CONTENTS February 17, 2009
Page
- 1 -
A. Proposed Rule Amendments Recommended for Adoption................................1
1. Post-Conviction Relief Rules...................................................................................1
2. R. 2:5-3(d) and R. 3:22-6(c) – Ordering Transcripts in Municipal Appeals and
Appeals from Second or Subsequent Denials of Petitions for Post-Conviction
Relief......................................................................................................................59
3 R. 2:7-2(d) – Attorney of Record...........................................................................63
4. R. 3:30 – Expungement Fees..................................................................................66
B. Non-Rule Recommendations...............................................................................68
1. Amendments to the Main Plea Form – Immigration Status...................................68
2. Amendments to the Main Plea Form – Interstate Compact for Adult Offender
Supervision.............................................................................................................70
3. Presentence Reports................................................................................................75
4. Ex Parte Post-Trial Communications Between Judges and Juries.......................105
5. Transmission of Discovery in Criminal Cases.....................................................118
C. Matters Previously Sent to the Supreme Court...............................................119
1. Bail Source/Sufficiency Hearings; Implementation of N.J.S.A. 2A:162-13
R 3:26-1 and new R. 3:26-8 ................................................................................119
2. Follow-Up Report on The Implementation of the Recordation of
Custodial Interrogation.........................................................................................120
D. Rule Proposals and Other Issues Considered and Rejected..........................123
1. Alibi Rule – State v. Bradshaw – R. 3:12-2.........................................................123
2 Bail Forfeiture Rule – R. 3:26-6...........................................................................124
3. Electronic Recordation of Custodial Interrogations – R. 3:17.............................126
4. Hypnotically Refreshed Testimony – State v. Moore..........................................128
5. Defendant’s Waiver of Presence at Trial - State v. Luna – R. 3:20-2 .................129
6. State v. McAllister................................................................................................131
7. Conditional Discharge Appeals – R. 3:23-2.........................................................135
8. State v. Kent.........................................................................................................138
E. No Action Necessary...........................................................................................140
1. Comprehensive Review of Existing Plea Forms..................................................140
2. Public Access to Court Records...........................................................................142
F. Matters Held for Future Consideration...........................................................143
1. Bail Review Procedures.......................................................................................143
TABLE OF CONTENTS
Page
- 2 -
2. Criminal Defendants and Civil Commitment.......................................................144
3. Disposition of Municipal Court Matters in Superior Court.................................146
4. Model Jury Selection Questions for Criminal Cases...........................................148
5. Municipal Appeals................................................................................................150
6. Nicole’s Law – N.J.S.A. 2C:14-2 and N.J.S.A. 2C:44-8.....................................151
7. Preservation of Evidence......................................................................................152
8. Pretrial Intervention Guidelines...........................................................................153
9. Recording Requirements for Out-of Court Identifications..................................154
10. Review of Verdict Sheets at Charge Conference.................................................155
11. R. 3:14-1(j) – Technical Amendment...................................................................156
1
A. Proposed Rule Amendments Recommended for Adoption.
1. Post-Conviction Relief Rules
a. Background
During the 2002-2004 term, the Committee discussed ways in which to alleviate
the statewide delays in scheduling and resolving petitions for post-conviction relief
(PCR). The Committee also discussed State v. Rue, 175 N.J. 1 (2002), in which the New
Jersey Supreme Court held that PCR counsel must advance even those arguments raised
by their clients that counsel believes to be without merit. It was suggested that the
volume of PCR petitions being filed affected the ability of the Public Defender’s Office
to identify the petitions raising issues for which representation would be warranted and
for which relief would likely be granted. It was also suggested that delays occurred when
some of the Criminal Division Manager’s Offices forwarded cases to the Public Defender
and when the Public Defender’s Office assigned counsel. Additionally, it was suggested
that once counsel was assigned, there were delays in the receipt transcripts and case files.
Another issue discussed was whether R. 3:22-10 should be amended to expressly allow
oral argument by defense counsel on a first petition for post-conviction relief. See State
v. Mayron, 344 N.J. Super. 382 (App. Div. 2001).
As both the Public Defender’s Office and the Conference of Criminal Presiding
Judges were reportedly in the process of drafting proposals to address the backlog of
post-conviction relief cases, the Committee postponed recommending any possible
solutions during the 2002-2004 term. The Committee revisited the topic of PCR issues at
2
the beginning of the 2004-2007 term. At that time, the Committee considered whether to
create a Subcommittee to look into the possibility of revising the PCR rules in light of
Rue to limit, expand or clarify the rules regarding the scope of PCR issues that assigned
counsel must raise on behalf of their clients. The Public Defender, however, agreed with
Rue and its interpretation, and did not support a change in the rules, especially one that
would narrow the constitutional claims that a defendant could raise in a PCR petition.
The Committee then discussed whether the Office of the Public Defender should
be required to represent a defendant on a first PCR petition. It was reported that the
Public Defender supported such a requirement, because if all of the defendant’s claims
were raised in the first PCR petition there would be no need for subsequent petitions to be
filed, or alternatively, subsequent petitions could be handled via a form letter.
After a lengthy discussion, the Committee reached an impasse regarding how to
proceed. It agreed to revisit the issue at a later time, when the Conference of Criminal
Presiding Judges issued its PCR report. On June 22, 2005, the Conference of Criminal
Presiding Judges sent its Report of the Conference of Criminal Presiding Judges on
Revisions to The Rules Governing Post Conviction Relief (PCR) and Establishment of
PCR Time Goals to the Acting Administrative Director of the Courts for discussion by
the Judicial Council, which highlighted the Conference of Criminal Presiding Judges’
concerns that defendants who had filed petitions for post-conviction relief have had to
wait for unacceptable periods of time to have their petitions resolved. The Conference’s
3
Report also outlined concerns with the PCR process, set forth steps taken to address the
delays and provided recommendations to ameliorate the problem.
On July 12, 2006, the New Jersey Supreme Court decided State v. Webster, 187
N.J. 254 (2006). In Webster, the Court considered “whether PCR counsel violated R.
3:22-6(d) by failing to advance all of the issues raised by defendant.” Id. at 257. The
Court held that “the brief must advance the arguments that can be made in support of the
petition and include defendant’s remaining claims, either by listing them or incorporating
them by reference so that the judge may consider them.” The Court referred the matter to
the Criminal Practice Committee, asking that it propose a revision to R. 3:22-6(d) to
reflect the views expressed in the opinion. Id. at 258. In light of Webster, a
Subcommittee was formed to draft a rule amendment. The Subcommittee consisted of
judges, representatives from the Office of the Public Defender, representatives from the
Division of Criminal Justice and was staffed by the Administrative Office of the Courts.
Additionally, since the current court rules governing the handling of PCRs were not being
followed, largely because of the backlog situation, the Subcommittee was also charged
with reviewing the entire PCR process. The recommendations contained in the
Conference of Criminal Presiding Judges’ PCR report were used as a starting point for
discussion.
The Subcommittee conducted an expansive review of the post-conviction relief
rules and the current practice used by prosecutors, defense attorneys and the court. The
Subcommittee prepared a detailed report recommending significant changes to the court
4
rules governing post-conviction relief. The Committee reviewed the Subcommittee’s
recommendations and adopted most, with some revisions. The following rule proposals
focus on developing procedures to allow the court to dismiss, without prejudice, a
deficient petition for post-conviction relief and allow a defendant to re-file it as a
cognizable first post-conviction relief application with assignment of counsel. The
proposals also clarify that post-conviction motions for reconsideration of a sentence
should be filed pursuant to R. 3:21-10. This proposal is designed to ensure that a motion
for reconsideration of a sentence is not misinterpreted to be a first post-conviction relief
application. The proposed amendments would also provide that upon any motion filed
pursuant to R. 3:21-10, “the matter may be referred to the Office of the Public Defender
who shall represent the defendant as assigned by the judge.” This proposal is intended to
permit the court to assign counsel for difficult or possible meritorious issues “pursuant to
the court rules” in compliance with the Public Defender Act. See N.J.S.A. 2A:158A-5.
Additionally, the proposals modify the time frames and limitations to file petitions for
post-conviction relief.
b. Proposed Rule Amendments
(1) R. 1:3-4. Enlargement of Time
R. 1:3-4(c) sets forth matters where a fixed time for doing an act may not be
enlarged. The Committee is proposing a recommendation to amend paragraph (c) of this
rule to make clear that the general time limits to file a petition for post-conviction relief
as set forth in R. 3:22-12 cannot be enlarged or relaxed except as specifically set forth in
5
R. 3:22-12(a). This proposal is made in conjunction with a proposal to add a new
paragraph (c) to R. 3:22-12 to state that the time limitation set forth in R. 3:22-12 shall
not be relaxed, except as provided therein.
(2) R. 3:21-4. Sentence
R. 3:21-4 governs sentencing. Paragraph (h) of the rule explains the notification
to defendants of the right to appeal. The Committee believes that because it is proposing
changes to the time limitations to file petitions for post-conviction relief, that when being
sentenced defendants should be made aware of these new, more stringent time limitations
for filing post-conviction relief petitions. The proposal is to amend paragraph (h) of the
rule to state that after imposing the sentence, the court shall inform the defendant of the
time limitations for filing petitions for post-conviction relief. The Committee suggests
also amending the caption of paragraph (h) to include notification to file a petition for
post-conviction relief.
(3) R. 3:21-10. Reduction or Change of Sentence
The Committee is proposing that R. 3:21-10 be amended to include a new
paragraph (b)(5), which would permit a motion to reduce or change a sentence to be filed
and an order to be entered “correcting a sentence not authorized by law, including the
Code of Criminal Justice.” Along with this proposal, the Committee is recommending an
amendment to paragraph (c) of R. 3:21-10 that would provide that “upon any motion
filed pursuant to this rule, the matter may be referred to the Office of the Public
Defender, who shall represent the defendant as assigned by the judge.”
6
(a) New paragraph (b)(5)
The proposal to add a new paragraph (b)(5) to R. 3:21-10 is designed to include
the procedures to file post-conviction motions to reduce or change a sentence, pursuant to
R. 3:21-10, and PCR claims alleging that the sentence imposed was “in excess of or
otherwise not in accordance with the sentence authorized by law,” pursuant to R. 3:22-
2(c), into one rule. There are several reasons for this proposal. First, the Committee
recognized that often pro se defendants are not aware of, or may not fully understand, the
different procedures for filing PCR applications pursuant to R. 3:22-1 to 3:22-12 and
motions to change or reduce sentences pursuant to R. 3:21-10(b). As a result, the courts
often receive PCR applications, filed pursuant to R. 3:22-1 to 3:22-12, which seek relief
that falls within R. 3:21-10. For example, it was pointed out that a defendant may
incorrectly file a motion to change a custodial sentence to permit entry into a drug
rehabilitation program as a PCR petition pursuant to R. 3:22-2(c), rather than as a motion
for reconsideration of a sentence pursuant to R. 3:21-10(b)(1). Consequently, when a
motion for reconsideration of a sentence is incorrectly filed as a PCR application, the
court is faced with dismissing the petition as not cognizable under the PCR rules,
considering the motion as if it were correctly filed under R. 3:21-10(b) or forwarding the
matter to the Public Defender’s Office for the assignment of counsel.
Several problems arise with each of these options. First, the PCR rules are
interpreted liberally regarding the assignment of counsel for a defendant’s first PCR
petition; however, the rules require a showing of good cause for counsel to be assigned
7
for second or subsequent petitions. If a defendant misfiles a sentencing reconsideration
motion as a PCR petition and the court dismisses the petition as not cognizable under the
PCR rules, the petition could be “counted” as the defendant’s first PCR application
triggering the assignment of counsel. Under this scenario if the defendant filed a
subsequent PCR application, counsel would not be assigned absent a showing of good
cause. The Committee agreed that this result was undesirable if the initial PCR petition
could have properly been filed as a motion to reconsider the sentence under R. 3:21-10.
Alternatively, if the court considers a misfiled application as if it were correctly
filed pursuant to R. 3:21-10, a question arises whether the court has authority to
“convert” a PCR petition to a R. 3:21-10 motion. The Committee also discussed whether
the Public Defender’s Office had the responsibility to seek relief, such as filing a motion
to amend the PCR petition or filing a motion to dismiss the petition without prejudice so
that the defendant could re-file the matter pursuant to R. 3:21-10.
Furthermore, the Committee recognized that there is no court rule requiring the
Public Defender to represent defendants on post-conviction motions filed pursuant to R.
3:21-10. Therefore, by referring the case to the Public Defender’s Office for assignment
of counsel in a matter that should have been filed pursuant to R. 3:21-10, the court would
be ordering the assignment of counsel in cases where representation is not statutorily
required.3 See N.J.S.A. 2A:158A-5.
3
The Committee is recommending amendments to R. 3:21-10(c) to address the assignment of counsel in post-
conviction sentencing motions.
8
In light of these concerns, the Committee believes that when no other grounds for
post-conviction relief are asserted, it is appropriate for defendants to file sentencing
claims pursuant to R. 3:21-10. The proposal to amend R. 3:21-10(b)(5) includes
language permitting the filing of a motion to correct “a sentence not authorized by law,
including the Code of Criminal Justice.” The Committee believes that this proposal will
make it easier for the courts and the attorneys to appropriately resolve sentencing matters
in a timely fashion.
The Committee has concluded, however, that if a PCR petition sets forth an
allegation that a sentence imposed is in excess of or otherwise not in accordance with the
sentence authorized by law, along with other grounds cognizable under R. 3:22-2(a), (b)
or (d), the application should be filed pursuant to the rules governing post-conviction
relief and the sentencing allegations should be considered as part of the PCR application.
This option will allow the court to consider the entire PCR petition, including sentencing
claims, in one filing. The Committee is proposing to amend R. 3:22-2(c) accordingly.
(b) Discretionary Assignment of Counsel
The Committee recognized that while defendants are entitled to counsel for the
first PCR petition, R. 3:22-6(a), there is currently no court rule requiring the Public
Defender to represent defendants who file motions to reconsider a sentence pursuant to R.
3:21-10. Nonetheless, occasionally post-conviction motions to reduce or change a
sentence involve complex legal issues that would warrant the assignment of counsel.
Representatives from the Office of the Public Defender pointed out that their statutory
9
authority, N.J.S.A. 2A:158A-5, mandates that their office represent defendants on “any
direct appeal from conviction and such post-conviction proceedings as would warrant the
assignment of counsel pursuant to the court rules.”4 The Public Defender has agreed that
pursuant to N.J.S.A. 2A:158A-5, if a court rule required the assignment of counsel on a
motion filed pursuant to R. 3:21-10, the Public Defender’s Office would comply with it.
In light of the Committee’s proposal to add procedures for challenging a sentence
not authorized by law to R. 3:21-10(b)(5), the Committee is also recommending a
modification to paragraph (c) of R. 3:21-10 to provide that counsel may be assigned by
the judge where warranted and if such assignment is made, the Public Defender shall
represent the defendant.
With the addition of paragraph (b)(5), the other subsections of R. 3:21-10(b) will
be renumbered accordingly, and the proposed new language of paragraph (c) will permit
counsel to be assigned by the judge for difficult or possibly meritorious issues.
(4) R. 3:22-2. Grounds
In correlation with the proposed amendments to R. 3:21-10, the Committee is
proposing to amend R. 3:22-2(c) to provide that a PCR petition is cognizable if it is based
upon the ground that the:
[i]mposition of sentence in excess of or otherwise not in
accordance with the sentence authorized by law if raised
together with other grounds cognizable under paragraph (a),
(b), or (d) of this rule. Otherwise a claim alleging that the
imposition of sentence in excess of or otherwise not in
4
R. 3:22-6(a) provides that defendants are entitled to counsel for representation for a first petition for post-
conviction relief.
10
accordance with the sentence authorized by law shall be filed
pursuant to R. 3:21-10(b)(5).
This proposal will permit the court to consider claims that the sentence imposed
was in excess or otherwise not in accordance with the law, together with other grounds
for relief that are cognizable under paragraphs (a), (b) or (d) of R. 3:22-2. Otherwise, if
the application only sets forth grounds that the sentence was excessive or otherwise not in
accordance with the law, a motion should be filed pursuant to R. 3:21-10(b)(5), as
proposed, and the court will have the discretion to assign counsel.
(5) R. 3:22-3. Exclusiveness of Remedy; Not Substitute for
Appeal or Motion
The Committee considered a proposal to eliminate the bar contained in the last
sentence of R. 3:22-3, which precludes the filing of a petition for post-conviction relief
while appellate review is available. It was suggested that if a petition for post-conviction
relief is filed while an appeal is pending, the Criminal Division Manager’s office should
notify the Appellate Division Clerk’s Office of the filing. The Appellate Division Clerk’s
Office would then adjourn consideration of the pending appeal so that the Appellate
Division could consider the direct appeal of the alleged trial errors and the appeal of the
post-conviction relief application at the same time. The purpose of the suggestion was to,
in most cases, eliminate the need for the Appellate Division to consider the same files on
11
two or more separate occasions.5 The Committee considered adding new language as the
last sentence of the paragraph to state:
“Nothing in this Rule, however, shall prohibit the filing of a
petition without first pursuing appellate review if the issues
are raised in accordance with R. 3:22-4.”
The Committee ultimately determined not to include this language in the rule.
While some members of the Committee agreed that the proposal could eliminate
the need for the Appellate Division to consider duplicate files, some were concerned that
drafting a rule permitting the filing of a post-conviction relief petition while an appeal is
pending may add additional time to the appellate process. For instance, since a defendant
must file an appeal within 45 days from the entry of a final judgment, the direct appeal
could be briefed and ready to be heard and then the defendant could file a petition for
post-conviction relief, which would delay the resolution of the appeal. After the post-
conviction relief matter is resolved, the direct appeal may have to be re-briefed to address
the issues raised in both the direct appeal and the post-conviction relief appeal. As a
result, there may be a delay in time for an appeal to be heard and resolved, since the
appeal would be stayed pending the resolution of the petition for post-conviction relief in
the Law Division.
The Committee also considered a suggestion that the proposed rule amendments
will not fix the concern with delays in resolving post-conviction applications. It was
asserted that most PCR claims involve allegations of ineffective assistance of counsel,
5
Along with this suggestion, it was also suggested that R. 3:22-12 be amended to require that a post-conviction
relief application be filed within a year after the sentence is imposed.
12
and therefore, the PCR hearings should be held before appellate briefs are filed in a
particular case. The suggestion was that when a defendant is informed of the right to
appeal, the defendant should also be informed that if he has any complaints about his
lawyer, he should either state those complaints or state that he has such complaints as part
of the Notice of Appeal, which will cause the Appellate Division to remand the case to
resolve the PCR claims.
After a discussion, the Committee concluded that staying an appeal to consider a
petition for post-conviction relief or combining a direct appeal with a PCR appeal could
cause a significant delay in the resolution of the appeal and that it would likely result in
more complex appeals. While the proposals could eliminate duplicate efforts of the
courts, prosecutors and defense attorneys, the Committee was unsure if the proposal
would help accomplish the objective of revising the PCR rules to meet a specified time
goal. Ultimately, the Committee believes that the rule should not be amended to allow a
PCR application to be briefed and to toll the time to resolve the direct appeal. The
Committee also believes that advising a defendant of the ability to raise PCR claims at
the time of sentencing would invite numerous complaints, which may not be precluded
by a subsequent filing of a PCR application.
Finally, the Committee is recommending deleting the word “available” at the end
of the paragraph and replacing it with the word “pending. This proposal will clarify
when a petition is barred from being filed during the appellate process and is consistent
with proposed new R. 3:22-6A(2), which would require that the Public Defender notify
13
the court if a direct appeal, including a petition for certification, is pending so that the
court can dismiss the post-conviction relief petition without prejudice.
(6) R. 3:22-4. Bar of Grounds Not Raised in Prior Proceedings;
Exceptions
The Committee is recommending several amendments to R. 3:22-4 designed to
curtail the filing of repeated post-conviction relief applications arising out of the same
conviction, and to encourage defendants to include all post-conviction relief claims in
their original petitions or be precluded from doing so at a later date, except where
circumstances warrant an exception to this general rule. These amendments further
impose corresponding limitations on defendants’ ability to raise grounds for post-
conviction relief which were not asserted in a prior proceeding.
The amendments incorporate the Supreme Court of New Jersey’s decision in State
v. Ways, 180 N.J. 171, 192 (2004), regarding the use of newly discovered evidence as a
basis for post-conviction relief. As the Court held in Ways, the requirement that newly
discovered evidence “must not have been discoverable earlier through the exercise of
reasonable diligence” operates to “encourage defendants and attorneys to act with
reasonable dispatch in searching for evidence.” Ibid.; cf. R. 4:50-1(b) (addressing motion
for new trial on basis of newly discovered evidence).
(a) R. 3:22-4(a)
The Committee is proposing to designate paragraph (a) to add explanatory
language to the rule describing the bar of grounds for post-conviction relief that have not
14
been raised in a prior proceeding. Proposed paragraph (a)(1) includes the current
language of the rule which provides that a ground for post-conviction relief would be
barred unless the court found “that the ground for relief not previously asserted could not
reasonably have been raised in any prior proceeding.” The proposal includes new
explanatory language that “[a] ground could not reasonably have been raised in a prior
proceeding only if defendant shows that the factual predicate for that ground could not
have been discovered earlier through the exercise of reasonable diligence.”
Proposed paragraph (a)(2) includes the current language of the rule which
provides that a ground for post-conviction relief would be barred unless the court found
“that enforcement of the bar would result in fundamental injustice.” Members from the
Division of Criminal Justice proposed to include a definition of “fundamental injustice”
in the rule as follows:
A fundamental injustice occurs only when the facts
underlying the ground for relief, if proven and viewed
in light of the evidence as a whole, would raise a
reasonable probability of defendant’s innocence.
The Committee recommends leaving the term “fundamental injustice” undefined
being of the view that the interpretation of this term is best determined by caselaw. Thus,
a definition of “fundamental injustice” is not included in the rule proposal.
Proposed paragraph (a)(3) includes the current language of the rule which states
that a ground for post-conviction relief would be barred unless the denial of relief would
be contrary to the Constitution of the United States or the State of New Jersey. The
15
Committee recommends amending this language to provide that a ground for post-
conviction relief would be barred unless the court found that a denial of relief would be
contrary to “a new rule of constitutional law” under either the Constitution of the United
States or the State of New Jersey. The Committee also recommends adding explanatory
language to the rule which states that:
A denial of relief would be contrary to a new rule of
constitutional law only if the defendant shows that the claim
relies on a new rule of constitutional law, made retroactive to
defendant’s petition by the United States Supreme Court or
the Supreme Court of New Jersey that was unavailable during
the pendency of any prior proceedings.
A concern was raised of whether under this explanatory language relief could be
denied if a new rule of constitutional law was established by the Appellate Division that
was not considered by the New Jersey Supreme Court or established by a federal district
or federal circuit court that was not considered by the United States Supreme Court.
The Committee was informed that the proposed language, limiting relief to cases
involving a new rule of constitutional law established by the United States Supreme
Court or the New Jersey Supreme Court is based on federal habeas corpus jurisprudence.
Nonetheless, some members were concerned with prohibiting a trial court reviewing an
application for a second or subsequent post-conviction relief application from considering
New Jersey Appellate Division Cases and federal district court or circuit court cases that
may be widely followed, but never reach the United States Supreme Court or New Jersey
Supreme Court. Also, some members expressed concern with preventing the trial court
16
from considering federal circuit court opinions when there is a split in the federal circuit
courts that is not resolved by the United States Supreme Court.
An extensive discussion ensued, which resulted in a vote on three alternatives: (1)
add “or Superior Court, Appellate Division” after “Supreme Court of New Jersey” in the
explanatory paragraph of the rule proposal which would allow the trial court to consider
cases decided by the Appellate Division in determining if a bar on a second or subsequent
petition for post-conviction relief applies; (2) keep the proposed language, as is, which
would allow the trial court to consider New Jersey Supreme Court and United States
Supreme Court cases in determining if a bar on second or subsequent petitions for post-
conviction relief applied; or (3) delete the explanatory paragraph, which would allow the
trial court to consider cases, other than those decided by the New Jersey Supreme Court
or United States Supreme Court in making this determination. The Committee conducted
an initial vote: 5 members were in favor of adding “or Superior Court, Appellate
Division” to the explanatory paragraph of the rule; 11 members were in favor of leaving
the proposed language as is; 8 members were in favor of deleting the explanatory
paragraph. As a final vote 14 members were in favor of leaving the proposed language as
is, which would allow the trial court to consider New Jersey Supreme Court and United
States Supreme Court decisions in determining if a bar on a second or subsequent petition
for post-conviction relief applies, and 7 members were in favor of deleting the
explanatory paragraph.
17
(b) R. 3:22-4(b)
The Committee is proposing to add a new paragraph (b) to the rule, which creates
a two-prong analysis to consider if the bar of second and subsequent petitions for post-
conviction relief applies. This proposal incorporates the New Jersey Supreme Court’s
decision in State v. Ways, 180 N.J. 171, 192 (2004) regarding the use of newly
discovered evidence as a basis for post-conviction relief. This proposal is designed to
limit the scope of matters for which a second or subsequent petition for post-conviction
relief can be granted. To that end, it provides that a second or subsequent petition for
post-conviction relief shall be dismissed unless it is timely pursuant to R. 3:22-12(a)6 and
it alleges on its face either:
(A) that the petition relies on a new rule of
constitutional law, made retroactive to defendant’s
petition by the United States Supreme Court or the
Supreme Court of New Jersey, that was unavailable
during the pendency of any prior proceedings; or
(B) that the factual predicate for the relief sought could
not have been discovered earlier through the exercise
of reasonable diligence, and the facts underlying the
ground for relief, if proven and viewed in light of the
evidence as a whole, would raise a reasonable
probability that the relief sought would be granted.
In light of the recommended addition of paragraph (b), the Committee also recommends
adding the phrase “Bar of Second or Subsequent Petitions” to the caption of the rule.
6
R. 3:22-12 addresses the general time limitations to file a petition for post-conviction relief.
18
(7) R. 3:22-6. Indigents; Waiver of Fees; Assignment of Counsel,
and Grant of Transcript; Assigned Counsel May Not Withdraw
(a) R. 3:22-6(a)
The Committee is recommending that post-conviction relief petitions be
prescreened by the criminal division manager’s office to ascertain whether the petition is
cognizable under R. 3:22-2, and if it is, whether it meets the requirements of R. 3:22-8.
The purpose of the prescreening is to assist the trial court in determining whether the
rules have been complied with. If not, the deficiencies can be set forth in the court’s
order sent to the Office of the Public Defender for assignment of counsel. The second
proposal being made is to make the assignment of counsel be via a court order. The third
recommendation is to require that the assignment orders contain the name of the judge to
whom the case is assigned and set a place and date for a case management conference.
This latter requirement, that the order contain a date for the next event, would be
consistent with the practice in the Criminal Division for all other events. Finally, an
amendment was proposed to require that the court set forth the reasons for its findings
that a petition is not cognizable under R. 3:22-2, or that a petition does not meet the
requirements of R. 3:22-8 and dismiss the petition.
Representatives from the Office of the Public Defender sought to add language to
paragraph (a) of the rule to provide that the court shall set a place and date for a case
management conference not less than 90 days after the matter is referred to the Office of
the Public Defender. The Committee recognized that the Administrative Office of the
19
Courts has promulgated orders to be used when a trial judge refers a petition for post-
conviction relief to the Office of the Public Defender for assignment of counsel.7 The
orders set forth time frames for the assignment of counsel and for assigned counsel to file
an appearance with the court. The orders also require the court to set the date for a case
management conference. However, the orders do not contain a specific time frame for
which the case management conference must occur. The Committee rejected adding time
frames to the rule to set the case management conference. Instead, it opted to give the
trial judge discretion to schedule the case management conference within a reasonable
time period.
The Committee agreed to amend language in the second sentence of paragraph (a)
which provides that “a defendant who is not represented by the Office of the Public
Defender” may complete an indigency form to “a defendant who wants to be represented
by the Office of the Public Defender.” This language is designed to address the situation
where a defendant may not have been eligible for a Public Defender during trial or on
appeal, but would like to allege indigency for representation on post-conviction relief.
(b) R. 3:22-6(b)
Addressing the assignment of counsel on a second or subsequent petition for post-
conviction relief, paragraph (b) presently provides that when a defendant files a second or
subsequent petition for post-conviction relief, the matter shall be referred to the Public
Defender’s Office for assignment of counsel upon a showing of good cause. The
7
See Memorandum to Assignment Judges, Criminal – Post-Conviction Relief – Form Order Assigning Counsel,
from Hon. Philip S. Carchman, Acting Administrative Director of the Courts (May 3, 2005).
20
Committee recommends amending paragraph (b) to define “good cause” for the
assignment of counsel on a second or subsequent petition for post-conviction relief (in
the last sentence of paragraph (b)) as follows:
For purposes of this section, good cause exists only
when the court finds that a substantial issue of fact or
law requires assignment of counsel and when a second
or subsequent petition alleges on its face a basis to
preclude dismissal under R. 3:22-4.
This proposed amendment makes clear that such a showing of “good cause” for
assignment of counsel on a second or subsequent petition requires, at a minimum, a
showing that defendant’s petition satisfies one of the exceptions to dismissal found in R.
3:22-4(b), as amended.
(c) R. 3:22-6(d)
This proposal was designed to help resolve conflicts between the requirements of
State v. Rue, 175 N.J. 1 (2002) and State v. Webster, 187 N.J. 254 (2006) for counsel to
include claims put forth by defendant in the petition, regardless of merit, and an
attorney’s ethical obligation under R. 3.1 of the Rules of Professional Conduct to refrain
from raising frivolous claims.
The Committee first recommends amending the first sentence of paragraph (d) to
state that the court will not substitute new counsel at defendant’s request, except upon a
showing of good cause and notice to the Public Defender. Representatives from the
Public Defender’s Office indicated that some defendants file motions for the court to
replace or substitute counsel because of discontent with counsel. This proposal is
21
designed to discourage the filing of such motions and to notify the Public Defender’s
Office if the court is substituting counsel or considering such a motion.
The proposed amendments to the last few sentences of R. 3:22-6(d) respond to the
decisions of the Supreme Court of New Jersey in State v. Rue, 175 N.J. 1 (2002) and
State v. Webster, 187 N.J. 254 (2006). In Rue, the Court interpreted R. 3:22-6(d) and
held that “[a]t the very least, where communication and investigation have yielded little
or nothing, counsel must advance the claims the client desires to forward in a petition and
brief and make the best available arguments in support of them.” State v. Rue, 175 N.J.
at 19. In Webster, the Court ruled that defense counsel had no obligation to advance any
claim put forth by defendant for which counsel “can formulate no fair legal argument in
support.” State v. Webster, 187 N.J at 257. However, the Webster Court required
defense counsel to include such claims in the petition “either by listing them or
incorporating them by reference so that the judge may consider them.” Ibid. As the
Court held, this would “serve to preserve defendant’s contentions for federal exhaustion
purposes.” Ibid.
The Committee proposes to amend the last few sentences of paragraph (d) to help
resolve conflicts between the requirements set forth in Rue and Webster for counsel to
raise and incorporate any claims put forth by their clients, regardless of merit, and an
attorney’s ethical obligation under R. 3:1 of the Rules of Professional Conduct to refrain
from raising frivolous claims. The Committee’s proposal is to amend the last two
sentences of paragraph (d) to read as follows:
22
Counsel should advance all of the legitimate
arguments requested by the defendant that the record
will support. If defendant insists upon the assertion of
any grounds for relief that counsel deems to be without
merit, counsel shall list such claims in the petition or
amended petition or incorporate them by reference.
The Committee also recommends adding a sentence to the end of the paragraph to
address the filing of pro se briefs which states: “Pro se briefs can also be submitted.”
(d) Changing Terms “Refer” And “Referral” To “Assign”
And “Assignment”
The Committee believes that using the terms “refer” or “referral” to describe the
procedure when the court forwards petitions to the Office of the Public Defender for
assignment of counsel is confusing. The Committee recommends using the terms
“assign” or “assignment” to describe when the court is forwarding the petition to the
Office of the Public Defender for assignment of counsel. This proposed change has been
made in all of the rules governing post-conviction relief.
(e) Proposed Paragraphs (e) and (f) – Not Recommended
The Committee considered adding paragraphs (e) and (f) to address the Public
Defender’s concerns about obtaining the complete case file from the prosecutor and to
define “good cause” for assignment of counsel on a second or subsequent petition for
post-conviction relief. The proposals were as follows:
(e) Discovery. Upon a showing of good cause by
defense counsel, the State shall provide a new copy of
discovery materials and relevant correspondence and
documents previously provided to trial counsel.
23
(f) Good Cause for Assignment of Counsel on a
Second or subsequent Application for Post-conviction
relief. Good cause exists when the defendant's
assertions, if proven and viewed in light of the
evidence as a whole, would raise a reasonable
probability that the post-conviction relief application
would be granted. If good cause is found, a
presumption that the procedural bars are relaxed is
assumed.
The Committee decided that it was unnecessary to draft a rule requiring the
prosecutor to provide case files to the Public Defender, because this involves
communications between the parties and resources in their respective offices. With
regard to the proposal to add a new paragraph (f), the Committee was of the view that the
meaning of “good cause” is sufficiently explained in the proposed amendment to the last
sentence of paragraph (b) in R. 3:22-6.
(8) New R. 3:22-6A. Notifying Court of Assignment; Filing of
Appearance
(a) R. 3:22-6A(1)
On May 3, 2005, the Administrative Office of the Courts promulgated orders for
judges to issue when forwarding a pro se petition for post-conviction relief to the Office
of the Public Defender for assignment of counsel. One order addresses assignment of
counsel on the first petition for post-conviction relief and the other addresses assignment
of counsel for second or subsequent petitions of post-conviction relief. The Committee
considered language in a new rule to address procedures for the Public Defender to notify
the court of counsel who will handle the particular post-conviction relief petition after the
24
judge has issued an order forwarding the case to the Public Defender for the assignment
of counsel.8 The first paragraph of R. 3:22-6A would require that within ninety days of
receipt of an order of assignment issued by the court, the Office of the Public Defender
provide the court with the name of the attorney assigned to represent the defendant. That
attorney would be required to file an appearance with the court within ten days.
The Public Defender’s Office pointed out that the 90-day time period to assign
counsel is reasonable because it takes time for the Post-Conviction Relief Unit to obtain
the case file and transcripts, which are needed to appropriately assign counsel. The
Office of the Public Defender also suggested adding language permitting an exception to
the 90-day time limit to allow for an extension of time, upon a showing of good cause, to
provide the court with the name of the attorney assigned to represent the defendant.
Concern was expressed with allowing a 90-day time period for the Public
Defender to assign an attorney and permitting exceptions to enlarge that time frame after
an order of assignment has been received by their office. It was opined that a defendant
should not have to wait for 90 days after filing the PCR petition to have counsel assigned.
It was suggested that the 90-day time frame for the assignment of counsel should be
reduced to 30 days after the Public Defender’s receipt of the order of assignment.
Representatives from the Office of the Public Defender and the private defense bar
asserted that there is little meaningful function for a defense attorney handling a post-
conviction relief case until the transcripts or case file are obtained. Without first having
8
See Memorandum to Assignment Judges, Criminal – Post-Conviction Relief – Form Order Assigning Counsel,
from Hon. Philip S. Carchman, Acting Administrative Director of the Courts (May 3, 2005).
25
the case file, a defense attorney is unable to answer many of the client’s questions, have a
meaningful conversation or respond to a defendant’s allegations. Those members stated
that unlike pretrial matters, there is no sense of urgency on post-conviction relief matters,
because there is no presumption of innocence at that stage.
Some members disagreed and believed that defense counsel could meet with
clients regarding allegations raised in the pro se post-conviction relief petition to possibly
narrow or clarify some issues raised by the defendant. Some members also thought it
was important for the defendant to have the name of an attorney to send correspondence,
instead of sending correspondence to the court. It was pointed out that such
correspondence would then be covered by the attorney-client privilege, however, when
this correspondence is sent to the court after a petition is filed but before an attorney is
assigned it can be made available to the prosecution. Members in support of the 90-day
time limit to assign counsel pointed out that the proposed rule provides a 90-day outer
limit on the assignment of counsel, however, counsel could be assigned before then,
which is currently occurring in some counties.
The Committee voted and ten members were in favor of the proposal to require the
assignment of counsel within 90 days after the Public Defender’s receipt of the order of
assignment. Nine members were in favor of changing the rule proposal to require the
assignment of counsel within 30 days.
26
(b) R. 3:22-6A(2) and (3)
The Committee is recommending adoption of subsection (A)(2) to address the
circumstance in which a petition for post-conviction relief is filed at the same time that a
direct appeal is pending. Specifically, the Committee recommends adding language to
proposed R. 3:22-6A(2) to state: “If a direct appeal, including a petition for certification,
is pending, the Public Defender’s Office shall notify the court, and the petition shall be
dismissed without prejudice.” This recommendation is consistent with the proposed
amendment to R. 3:22-3 which will provide that a petition for post-conviction relief may
not be filed while appellate review or a motion incident to trial proceedings is pending.
The Committee also suggests including language in paragraph (A)(2) to address
the deadlines for re-filing a petition dismissed without prejudice because a direct appeal
was pending. The suggested language provides that:
if the defendant refiles the petition within 90 days of
the date of the judgment on direct appeal, including
consideration of a petition for certification or within
five years after rendition of the judgment or sentence
sought to be attacked, whichever is later, it shall be
considered a first petition for post-conviction relief.
The Committee also recommends adoption of new paragraph (A)(3) to provide
that where the order assigning the case to the Public Defender’s office states that the
petition is not cognizable under R. 3:22-2 or does not meet the requirements of R. 3:22-8
or the Public Defender determines such deficiencies exist and notifies the court, the court
can dismiss the petition without prejudice, unless an amended petition is filed within a
27
certain time period that is cognizable under R. 3:22-2 and which meets the requirements
contained in R. 3:22-8. In that regard, R. 3:22-6A(3) will differentiate petitions
dismissed as not cognizable under R. 3:22-2 and R. 3:22-8 from petitions dismissed
under R. 3:22-6A(2) because direct appeal was pending.
The proposals provide that any petition dismissed without prejudice pursuant to R.
3:22-6A(3) would be treated as a first petition for post-conviction relief if a cognizable
petition is re-filed within certain time parameters. Therefore, the Committee also
recommends language to this effect be added to R. 3:22-12. The Committee also
recommends that the AOC develop a mechanism to track when PCR applications are
dismissed without prejudice.
The Committee discussed how to craft a rule to address the “filing date” when a
defendant misfiles a motion to change or reduce a sentence (R. 3:21-10) as a first petition
for post-conviction relief. Currently, when this occurs the petition is referred to the
Public Defender’s Post-Conviction Relief Unit for assignment of counsel. After review,
if the Public Defender’s Post-Conviction Relief Unit determines that a motion should
have been filed pursuant to R. 3:21-10, the attorney will typically ask the court to vacate
the order assigning the matter to the Post-Conviction Relief Unit on the basis that the
defendant’s application is cognizable pursuant to R. 3:21-10. The Public Defender’s
Post-Conviction Relief Unit normally sends the case to the local Public Defender’s Office
for handling. Members from the Public Defender’s Office explained that under the
circumstances the attorney may ask the court to vacate the assignment order, because
28
there is no statutory authority mandating that the Public Defender’s Office represent
defendants in R. 3:21-10 motions for reconsideration of sentences. Therefore, the court’s
order referring the case to the Public Defender for assignment of counsel in a matter that
should have been filed pursuant to R. 3:21-10 might now be ordering the Public Defender
to represent defendants in cases where representation is not statutorily required.9
The Committee engaged in a discussion of whether the court had authority to
“convert” a post-conviction relief petition to a R. 3:21-10 motion or if the Public
Defender’s Office had the responsibility to seek relief, such as filing a motion to amend
the post-conviction relief petition or filing a motion to dismiss the petition without
prejudice, and then the defendant could re-file the matter pursuant to R. 3:21-10.
To address this concern, the Committee suggests adding paragraph (A)(3) to
permit the Public Defender to file an amended cognizable petition or to seek other relief
as may be appropriate. The proposed language is as follows:
Where the order of assignment sets forth reasons that the
petition is not cognizable under R. 3:22-2, or does not contain
the requirements of R. 3:22-8, or the Office of the Public
Defender determines that such deficiencies exist and so
notifies the court, the attorney assigned to represent the
defendant shall, within 120 days of assignment, file an
amended petition or new application that is cognizable under
R. 3:22-2 and which meets the requirements contained in R.
3:22-8 or shall seek other relief as may be appropriate.
9
The Committee is recommending amendments to R. 3:21-10 to address the issues of post-conviction sentencing
motions and assignment of counsel for those motions.
29
(c) R. 3:22-6A(4)
The Committee recommends adding paragraph A(4) to provide that in cases where
a defendant is not represented by the Office of the Public Defender, the attorney
representing the defendant shall file an appearance contemporaneously with the filing of
a petition for post-conviction relief.
(9) R. 3:22-7. Docketing; Service on Prosecutor; Assignment for
Disposition
The Committee recommends technical amendments that will reflect and be
consistent with the current practice in the Criminal Division. The Committee
recommends that the references to “Clerk” in the rule be changed to “Criminal Division
Manager.” The Committee also recommends amending the rule to state that the criminal
division manager shall promptly notify the Criminal Presiding Judge of the filing of the
petition, as opposed to, the Assignment Judge. The proposal would also provide that the
Criminal Presiding Judge shall refer the matter to a trial judge for disposition.
(10) R. 3:22-9. Amendments of Pleadings; Answer or Motion by
Prosecutor
The Committee is recommending that the time period for assigned counsel to file
an amended petition for post-conviction relief be increased from 25 to 90 days. The
Committee recognized that sometimes, briefs are filed along with applications for post-
conviction relief. The Committee believes that the 90-day time frame is a more realistic
time period given counsel’s responsibilities once counsel receives the case.
30
Representatives from the Office of the Public Defender pointed out that the
proposed language in R. 3:22-6A(3) provides defense counsel with 120 days to file an
amended petition that is not cognizable under R. 3:22-2 or does not contain the
requirements of R. 3:22-8. However, the proposed amendment to R. 3:22-9 provides
defense counsel with 90 days to file an amended petition. The Office of the Public
Defender suggested that both rules should contain the 120-day deadline. The Committee
believes that there is a distinction between providing a longer time frame of 120 days to
file an amended petition in R. 3:22-6(A)(3), because that rule addresses petitions that are
not in compliance with the rules. If those petitions are not amended, they may be
dismissed without prejudice. On the other hand, R. 3:22-9 governs petitions that are
properly filed and defense counsel may or may not amend the petition. The Committee
does not believe that it is necessary to provide defense counsel with 120 days to file an
amendment, or to file a notice that no amended petition is warranted, when the initial
petition is cognizable.
The Committee also recommends increasing the time for the prosecutor to file a
answer from 30 days to 60 days. The 60-day time period will commence once defense
counsel has submitted the petition and brief. This proposal is designed to avoid situations
in which the prosecutor must respond separately to the original petition filed by a
defendant and an amended petition filed by the Office of the Public Defender after
issuance of an order of assignment pursuant to the amendments to R. 3:22-6. As set forth
above, the proposed amendments to R. 3:22-9 provide assigned counsel with 90 days
31
from the date of assignment to file an amended petition, require that assigned counsel
provide notice of whether an amended petition will in fact be filed, and obviate the need
for prosecutors to respond until such notice, or the amended petition, is served.
The Committee recognized that in practice, prosecutors rarely file motions to
dismiss petitions for post-conviction relief. Instead of filing a formal dismissal motion,
the prosecutor will typically mention dismissal as part of the answer or reply brief that is
filed. The Public Defender’s Office estimated that approximately 6-12 motions for
dismissal were filed in the past two years. One judge did not recall receiving any
motions for dismissal of a petition for post-conviction in ten years. The Committee
therefore recommends deleting references to motions for dismissal and their respective
filing requirements from the rule, as well as the reference to the dismissal motions in the
caption of the rule.
Representatives from the Division of Criminal Justice proposed adding the
following language to the rule to address situations where a defendant may be
uncooperative or unresponsive to counsel and seeks to withdraw a PCR petition without
prejudice:
The court shall not permit a defendant to withdraw a petition
for post-conviction relief without prejudice where the basis
for the withdrawal is that the defendant is unresponsive to
counsel, or where defendant is incarcerated in another
jurisdiction.
The purpose of this proposal was to require that defendants fully prosecute their
post-conviction relief petitions or face dismissal of such petitions with prejudice to
32
conserve judicial resources and prevent defendants from circumventing the bar on second
or successive petitions imposed by R. 3:22-4(b), as proposed to be amended. The
Committee concluded that this language should not be added to the rule. The Committee
is of the view that situations where a defendant is uncooperative or unresponsive to
counsel should be handled on a case-by-case basis.
(11) R. 3:22-10. Presence of Defendant at Hearing; Preference
The Committee is proposing amendments to the rule to delete the first sentence
and recommends designating paragraph (a) to address a defendant’s presence at an
evidentiary hearing, and adding new paragraphs (b), (c), (d), and (e) to incorporate
standards for evidentiary hearings that have been developed by case law over time.
(a) R. 3:22-10(a)
The Committee recommends that the first sentence of the rule, which states that
the proceedings shall be given preference, be deleted to accurately reflect the current
practice that post-conviction relief applications are handled as expeditiously as possible.
The Committee notes that the resolution of other cases of significance may be given
preference over the resolution of PCR cases. Additionally, the Committee proposes to
designate new paragraph (a) and amend the current language to make clear that the
defendant has a right to be present for oral argument, as well as, when testimony is being
given. The Committee agreed that the rule should also make clear that the defendant can
waive his right to be present at the oral argument or when testimony is adduced. If a
33
defendant is out-of-state or otherwise cannot be brought to a hearing, consent to the
waiver of presence can be provided by counsel or be otherwise implied.
(b) New Paragraph R. 3:22-10(b)
The Committee recommends incorporating into R. 3:22-10 the standards set forth
by the Supreme Court of New Jersey for determining whether an evidentiary hearing is
warranted. See State v. Preciose, 129 N.J. 451 (1992); State v. Marshall, 148 N.J. 89,
cert. denied, 522 U.S. 850 (1997). In Preciose, the Court ruled that evidentiary hearings
should be granted only if a defendant “has presented a prima facie claim in support of
post-conviction relief” by demonstrating a “reasonable likelihood” of success. State v.
Preciose, 129 N.J. at 462-63. In Marshall, the Court made clear, however, that there is a
“pragmatic dimension” to the post-conviction relief court’s determination of whether an
evidentiary hearing is warranted. State v. Marshall, 148 N.J. at 158. Thus, a defendant is
not entitled to an evidentiary hearing if such a hearing would not “aid the court’s analysis
of whether the defendant is entitled to post-conviction relief” or if “defendant’s
allegations are too vague, conclusory, or speculative . . . .” Ibid. The Court further
affirmed that the “purpose of an evidentiary hearing is to permit the defendant to prove
that he or she was improperly convicted or sentenced; it is not an occasion for the
defendant to question witnesses in an indiscriminate search for additional grounds for
post-conviction relief.” Ibid.
Paragraph (b), extracted primarily from State v. Preciose, sets forth new proposed
language which provides that a defendant is entitled to a evidentiary hearing only upon:
34
(1) establishment of a prima facie case in support of post-conviction relief; (2) a
determination by the court that there are material issues of disputed fact that cannot be
resolved by reference to the existing record, and (3) a determination that an evidentiary
hearing is necessary to resolve the claims for relief.
The proposal also defines prima facie case as a reasonable likelihood that the
claim for relief, viewing the facts alleged in the light most favorable to the defendant,
will ultimately succeed on the merits.
(c) New Paragraph R. 3:22-10(c)
Paragraph (c) sets forth new language explaining that before the court can grant a
hearing, any factual assertion that provides a predicate for a claim of relief must be made
by affidavit or certification, pursuant to R. 1:4-4 and be based on personal knowledge of
the declarant.
(d) New Paragraph R. 3:22-10(d)
Paragraph (d) sets forth new language explaining that the scope of an evidentiary
hearing shall be limited to the issue of whether the defendant was improperly convicted.
The purpose of this rule is to ensure that the defendant does not attempt to investigate
additional claims for relief during the post-conviction relief hearing, for which the
defendant has not demonstrated a reasonable likelihood of success on the merits.
(e) New Paragraph - R. 3:22-10(e)
The Committee is proposing adding a new paragraph (e) that would set forth three
circumstances for which the court shall not grant an evidentiary hearing: (1) if a hearing
35
will not assist the court in resolving defendant’s claim; (2) if the allegations are too
vague, conclusory or speculative; or (3) for the purpose of permitting a defendant to
investigate additional claims for relief for which the defendant has not established a
prima facie case of a reasonable likelihood of success as required by R. 3:22-10(b).
(12) R. 3:22-11. Determination; Findings and Conclusions;
Judgment; Supplementary Orders
Concern was raised that the rules do not contain any time frames for rulings on
motions to dismiss or final determinations in post-conviction relief cases. Therefore, the
Committee is recommending an amendment to R. 3:22-11 to require that the court make
a final determination on the PCR petition within 30 days of the hearing or in the absence
of a hearing, within 30 days of the filing of the amended petition or answer filed in the
case.
The Committee also recommends deleting references to motions for dismissals in
light of its recommendation to amend R. 3:22-9 to delete the practice of motions for
dismissals.
(13) R. 3:22-12. Limitations
The Committee considered when a deficient petition for post-conviction relief
should be deemed filed. Typically the five-year time bar in R. 3:22-12 commences at the
time of the conviction or the time of sentencing, depending upon what the defendant is
challenging. State v. Milne, 178 N.J. 486, 491 (2004). If a defendant alleges facts
36
demonstrating that the delay was because of the defendant’s inexcusable neglect or if the
“interests of justice demand it”, the court may relax the time bar. Id. at 492.
The Committee is proposing several amendments to R. 3:22-12 to incorporate
Milne. First, the Committee proposes to amend paragraph (a) of R. 3:22-12 to state that
“no petition shall be granted pursuant to this rule if filed more than 5 years after rendition
of the judgment or sentence sought to be attacked” unless the defendant shows that the
delay was due to excusable neglect and that there is a reasonable probability that if the
defendant’s factual assertions were found to be true, the defendant would have been
found not guilty. Members from the Office of the Public Defender opposed the language
requiring a finding of “a reasonable probability that if the defendant’s factual assertions
were found to be true the defendant would have been found not guilty” to relax the 5-year
time bar. Those members proposed that the standard should be “a reasonable probability
that if the defendant’s factual assertions were found to be true the relief sought would be
granted.” The Office of the Public Defender’s reasoning for this proposal is that
requiring a reasonable probability that a defendant would be found not guilty would set
the bar for a first petition for post-conviction relief higher than the bar set for a second or
subsequent petition for post-conviction relief.
Second, the Committee proposes to add a new paragraph (a)(3) to R. 3:22-12 to
provide that a petition dismissed without prejudice as not cognizable under R. 3:22-2, or
for failing to meet the requirements of R. 3:22-8, shall not trigger the application of the
provisions pertaining to second or subsequent post-conviction relief petitions so long as
37
that dismissed petition is amended to conform with R. 3:22-2 and R. 3:22-8 and is re-
filed by the original 5-year deadline set forth in R. 3:22-12, or is re-filed within 90 days
of dismissal, whichever is later. The Committee is of the view that this amendment will
more “strongly encourage[] those believing they have grounds for post-conviction relief
to bring their claims swiftly, and [will more strongly] discourage[] them from sitting on
their rights until it is too late for a court to render justice.” State v. Mitchell, 126 N.J.
565, 576 (1992).
In addition, in conjunction with the proposed amendments to R. 3:22-4(b), it is
proposed that R. 3:22-12 be amended to add a new paragraph (a)(2) to impose a one-year
time limit to file all second or subsequent petitions to encourage defendants to raise all of
their claims in the first PCR petition that is filed.
The Committee also proposes deleting the first sentence from the rule which
provides that a petition to correct an illegal sentence may be filed at any time, because it
is recommending that similar language be included in R. 3:21-10, in light of the proposed
amendments to R. 3:22-2.
In light of the foregoing discussions, the Committee is proposing that the Court
adopt the following rule recommendations.
38
1:3-4. Enlargement of Time.
(a) . . . No Change
(b) . . . No Change
(c) Enlargements Prohibited. Neither the parties nor the court may, however, enlarge the
time specified by R. 1:7-4 (motion for amendment of findings); R. 3:18-2 (motion for
judgment of acquittal after discharge of jury); R. 3:20-2, R. 4:49-1(b) and (c) and R.
7:10-1 (motion for new trial); R. 3:21-9 (motion in arrest of judgment); R. 3:21-10(a); R.
3:22-12 (petitions for post-conviction relief); R. 3:23-2 (appeals to the Law Division
from judgments of conviction in courts of limited criminal jurisdiction); R. 3:24 (appeals
to the Law Division from interlocutory orders and orders dismissing the complaint
entered by courts of limited criminal jurisdiction); R. 4:40-2(b) (renewal of motion for
judgment); R. 4:49-2 (motion to alter or amend a judgment); and R. 4:50-2 (motion for
relief from judgment or order).
Note: Source-R.R. 1:27B (a) (b) (c) (d) (e), 4:6-1, 8:12-5(a)(b). Paragraph (c) amended
July 7, 1971, effective September 13, 1971; paragraph (b) amended November 27, 1974
to be effective April 1, 1975; paragraph (b) amended July 22, 1983 to be effective
September 12, 1983; paragraph (c) amended July 26, 1984 to be effective September 10,
1984; paragraphs (b) and (c) amended July 14, 1992 to be effective September 1, 1992;
paragraph (c) amended January 5, 1998 to be effective February 1, 1998; paragraph (c)
amended July 10, 1998 to be effective September 1, 1998; paragraph (c) amended July
28, 2004 to be effective September 1, 2004[.]; paragraph (c) amended
________________ to be effective ____________.
39
3:21-4. Sentence
(a) . . . No Change.
(b) . . . No Change
(c) . . . No Change
(d) . . . No Change
(e) . . . No Change
(f) . . . No Change
(g) . . . No Change
(h) Notification of Right to Appeal and to File Petitions for Post-Conviction Relief.
After imposing sentence, whether following the defendant's plea of guilty or a finding of
guilty after trial, the court shall advise the defendant of the right to appeal and, if the
defendant is indigent, of the right to appeal as an indigent. The court shall also inform
the defendant of the time limitations in which to file petitions for post-conviction relief.
(i) . . . No Change
(j) . . . No Change
Note: Source-R.R. 3:7-10(d). Paragraph (f) amended September 13, 1971, paragraph (c)
deleted and paragraphs (d), (e) and (f) redesignated as (c), (d) and (e) July 14, 1972 to be
effective September 5, 1972; paragraph (e) adopted and former paragraph (e)
redesignated as (f) August 27, 1974 to be effective September 9, 1974; paragraph (b)
amended July 17, 1975 to be effective September 8, 1975; paragraphs (d) and (e)
amended August 28, 1979 to be effective September 1, 1979; paragraph (d) amended
December 26, 1979 to be effective January 1, 1980; paragraph (g) adopted July 26, 1984
to be effective September 10, 1984; paragraph (d) caption and text amended November 5,
1986 to be effective January 1, 1987; paragraph (d) amended November 2, 1987 to be
effective January 5, 1988; to be effective February 1, 1988; new paragraph (c) adopted
and former paragraphs (c), (d), (e), (f), and (g) redesignated (d), (e), (f), (g), and (h)
40
respectively June 29, 1990 to be effective September 4, 1990; paragraph (b) amended
July 14, 1992 to be effective September 1, 1992; paragraph (I) adopted April 21, 1994 to
be effective June 1, 1994; paragraphs (b), (e), (f) and (g) amended July 13, 1994 to be
effective January 1, 1995; former paragraphs (f), (g), (h), and (I) redesignated as
paragraphs (g), (h), (I), and (j) and new paragraph (f) adopted July 10, 1998 to be
effective September 1, 1998; paragraph (j) amended July 5, 2000 to be effective
September 5, 2000[.]; paragraph (h) caption and text amended ___________________to
be effective__________________________.
41
3:21-10. Reduction or Change of Sentence
(a) . . . No Change.
(b) Exceptions. A motion may be filed and an order may be entered at any time (1)
changing a custodial sentence to permit entry of the defendant into a custodial or non-
custodial treatment or rehabilitation program for drug or alcohol abuse, or (2) amending a
custodial sentence to permit the release of a defendant because of illness or infirmity of
the defendant or (3) changing a sentence for good cause shown upon the joint application
of the defendant and prosecuting attorney, or (4) changing a sentence as authorized by the
Code of Criminal Justice, or (5) correcting a sentence not authorized by law including the
Code of Criminal Justice, or [(5)](6) changing a custodial sentence to permit entry into
the Intensive Supervision Program, or [(6)] (7) changing or reducing a sentence when a
prior conviction has been reversed on appeal or vacated by collateral attack.
(c) Procedure. A motion filed pursuant to paragraph (b) hereof shall be accompanied by
supporting affidavits and such other documents and papers as set forth the basis for the
relief sought. A hearing need not be conducted on a motion filed under paragraph (b)
hereof unless the court, after review of the material submitted with the motion papers,
concludes that a hearing is required in the interest of justice. All changes of sentence shall
be made in open court upon notice to the defendant and the prosecutor. An appropriate
order setting forth the revised sentence and specifying the change made and the reasons
therefor shall be entered on the record. Upon any motion filed pursuant to this rule, the
42
matter may be referred to the Office of the Public Defender who shall represent the
defendant as assigned by the judge.
(d) . . . No Change.
(e) . . . No Change.
Source-R.R. 3:7-13(a)(b); paragraph (b) amended and redesignated as (c) and new
paragraph (b) adopted July 17, 1975 to be effective September 8, 1975; paragraph (b)
amended August 28, 1979 to be effective September 1, 1979; new paragraph (d) adopted
July 16, 1981 to be effective September 14, 1981; paragraph (a) amended July 15, 1982
to be effective September 13, 1982; paragraph (b) amended and paragraph (e) adopted
July 22, 1983 to be effective September 12, 1983; paragraph (c) amended July 13, 1994
to be effective January 1, 1995; paragraph (b) amended June 28, 1996 to be effective
September 1, 1996[.]; new paragraph (b)(5) adopted, former paragraphs (b)(5) and (b)(6)
redesignated as (b)(6) and (b)(7) and paragraph (c) amended ______________to be
effective ______________.
43
3:22-2. Grounds
A petition for post-conviction relief is cognizable if based upon any of the following
grounds:
(a) . . . No Change.
(b) . . . No Change.
(c) Imposition of sentence in excess of or otherwise not in accordance with the
sentence authorized by law if raised together with other grounds cognizable under
paragraph (a), (b), or (d) of this rule. Otherwise a claim alleging that the imposition of
sentence in excess of or otherwise not in accordance with the sentence authorized by law
shall be filed pursuant to R. 3:21-10(b)(5).
(d) . . . No Change.
Note: Source--R.R. 3:10A-2[.]; paragraph (c) amended________to be
effective___________.
44
3:22-3. Exclusiveness of Remedy; Not Substitute for Appeal or Motion
Except as otherwise required by the Constitution of New Jersey, a petition pursuant to
this rule is the exclusive means of challenging a judgment rendered upon conviction of a
crime. It is not, however, a substitute for appeal from conviction or for motion incident
to the proceedings in the trial court, and may not be filed while such appellate review or
motion is [available] pending.
Note: Source--R.R. 3:10A-3[.]; amended _____________to be effective___________.
45
3:22-4. Bar of Grounds Not Raised in Prior Proceedings; Bar of Second or
Subsequent Petitions; Exceptions
(a) Any ground for relief not raised in a prior proceeding under this rule, or in the
proceedings resulting in the conviction, or in a post-conviction proceeding brought and
decided prior to the adoption of this rule, or in any appeal taken in any such proceedings
is barred from assertion in a proceeding under this rule unless the court on motion or at
the hearing finds:
[(a)] (1) that the ground for relief not previously asserted could not reasonably
have been raised in any prior proceeding; or
[(b)] (2) that enforcement of the bar would result in fundamental injustice; or
[(c)] (3) that denial of relief would be contrary to a new rule of constitutional law
under either the Constitution of the United States or the State of New Jersey.
A ground could not reasonably have been raised in a prior proceeding only if
defendant shows that the factual predicate for that ground could not have been discovered
earlier through the exercise of reasonable diligence.
A denial of relief would be contrary to a new rule of constitutional law only if the
defendant shows that the claim relies on a new rule of constitutional law, made
retroactive to defendant’s petition by the United States Supreme Court or the Supreme
Court of New Jersey, that was unavailable during the pendency of any prior proceedings.
(b) A second or subsequent petition for post-conviction relief shall be dismissed
unless:
46
(1) it is timely under R. 3:22-12(a)(2); and
(2) it alleges on its face either:
(A) that the petition relies on a new rule of constitutional law, made
retroactive to defendant’s petition by the United States Supreme Court or the Supreme
Court of New Jersey, that was unavailable during the pendency of any prior proceedings;
or
(B) that the factual predicate for the relief sought could not have been
discovered earlier through the exercise of reasonable diligence, and the facts underlying
the ground for relief, if proven and viewed in light of the evidence as a whole, would
raise a reasonable probability that the relief sought would be granted.
Note: Source--R.R. 3:10A-4[.]; caption amended, redesignation of paragraph (a), former
paragraphs (a), (b), and (c) amended and redesignated as paragraphs (a)(1), (a)(2) and
(a)(3) and new paragraph (b) added______________to be effective___________.
47
3:22-6. Indigents; Waiver of Fees; Assignment of Counsel, and Grant of
Transcript; Assigned Counsel May Not Withdraw
(a) Waiver of Fees; Assignment on First Petition. At the time of filing of a petition
under this Rule, a defendant who [is not] wants to be represented by the Office of the
Public Defender may annex thereto a sworn statement alleging indigency in the form
prescribed by the Administrative Director of the Courts, which form shall be furnished to
the defendant by the criminal division manager's office. The criminal division manager's
office shall determine whether the defendant is indigent and screen the petition to
determine whether the petition is cognizable under R. 3:22-2 and, if so, whether the
requirements of R. 3:22-8 have been met. The Criminal Division Manager shall
thereafter forthwith submit the same to the [Presiding Judge of the Criminal Division]
Criminal Presiding Judge who, if satisfied therefrom that the defendant is indigent, shall
order the criminal division manager's office to file the petition without payment of filing
fees. At the same time, and without separate petition therefor, if the petition is the first
one filed by the defendant attacking the conviction pursuant to this rule, the court shall as
of course, unless defendant affirmatively states an intention to proceed pro se, [refer]
assign, by order, the matter to the Office of the Public Defender if the defendant's
conviction was for an indictable offense, or assign counsel in accordance with R. 3:4-2 if
the defendant's conviction was for a non-indictable offense. All orders of assignment
pursuant to this section shall contain the name of the judge to whom the case is assigned
and shall set a place and date for a case management conference.
48
If the petition is not cognizable under R. 3:22-2, or if the petition does not meet
the requirements of R. 3:22-8, the court shall set forth the reasons that the petition is not
cognizable under R. 3:22-2, or fails to meet the requirements of R. 3:22-8, and shall
dismiss the petition.
(b) Assignment of Counsel on Cause Shown. Upon any second or subsequent
petition filed pursuant to this Rule attacking the same conviction, the matter shall be
[referred] assigned to the Office of the Public Defender only upon application therefor
and showing of good cause. For purposes of this section, good cause exists only when
the court finds that a substantial issue of fact or law requires assignment of counsel and
when a second or subsequent petition alleges on its face a basis to preclude dismissal
under R. 3:22-4.
(c) . . . No Change.
(d) Substitution; Withdrawal of Assigned Counsel. [Absent a showing of good cause,
t]The court [will] shall not substitute new assigned counsel at the request of defendant
while assigned counsel is serving[.], except upon a showing of good cause and notice to
the Office of the Public Defender. Assigned counsel may not seek to withdraw on the
ground of lack of merit of the petition. Counsel should advance [any grounds insisted
upon by defendant notwithstanding that counsel deems them without merit] all of the
legitimate arguments requested by the defendant that the record will support. If
defendant insists upon the assertion of any grounds for relief that counsel deems to be
49
without merit, counsel shall list such claims in the petition or amended petition or
incorporate them by reference. Pro se briefs can also be submitted.
Note: Source--R.R. 3:10A-6(a)(b)(c)(d). Paragraph (b) amended July 14, 1972 to be
effective September 5, 1972; paragraphs (a) and (d) amended July 13, 1994 to be
effective January 1, 1995[.]; paragraphs (a), (b) and (d) amended ________________to
be effective__________.
50
3:22-6A. Notifying Court of Assignment; Filing of Appearance
(1) Within ninety days of receipt of an order of assignment on a filed petition for
post-conviction relief, the Public Defender shall provide the court with the name of the
attorney assigned to represent the defendant. That attorney shall, within ten days, file an
appearance with the judge.
(2) If a direct appeal, including a petition for certification, is pending, the Public
Defender shall notify the court, and the petition shall be dismissed without prejudice. If
the defendant refiles the petition within 90 days of the date of the judgment on direct
appeal, including consideration of a petition for certification, or within five years after
rendition of the judgment or sentence sought to be attacked, whichever is later, it shall be
considered a first petition for post-conviction relief.
(3) Where the order of assignment sets forth reasons that the petition is not
cognizable under R. 3:22-2, or does not contain the requirements of R. 3:22-8, or the
Office of the Public Defender determines that such deficiencies exist and so notifies the
court, the attorney assigned to represent the defendant shall, within 120 days of
assignment, file an amended petition or new application that is cognizable under R. 3:22-
2 and which meets the requirements contained in R. 3:22-8, or shall seek other relief as
may be appropriate. In the absence of an amended petition, the court may dismiss the
petition without prejudice.
51
(4) In all other cases in which an attorney is representing the defendant, the attorney
shall file an appearance contemporaneously with the filing of a petition for post-
conviction relief.
Note: Adopted __________________.
52
3:22-7. Docketing; Service on Prosecutor; Assignment for Disposition
The [clerk] criminal division manager shall make an entry of the filing of the petition
in the proceedings in which the conviction took place, and, if it is filed pro se, shall
forthwith transmit a copy thereof to the prosecutor of the county. If an attorney files the
petition, that attorney shall serve a copy thereof on the prosecutor before filing and shall
file proof, certification or acknowledgment of service with the petition. The [clerk]
criminal division manager shall promptly notify the Criminal Presiding Judge
[Assignment Judge or judge designated by the Assignment Judge] of the filing of the
petition, [who] and the Criminal Presiding Judge shall forthwith refer the matter for
disposition to a trial judge.
Note: Source--R.R. 3:10A-7; amended July 13, 1994 to be effective September 1,
1994[.]; amended__________________to be effective_________________________.
53
3:22-9. Amendments of Pleadings; Answer [or Motion] by Prosecutor
Amendments of pleadings shall be liberally allowed. For all petitions assigned by the
Office of the Public Defender pursuant to R. 3:22-6(a), [A]assigned counsel may as of
course serve and file an amended petition within [25] 90 days after assignment. If
assigned counsel determines that no amended petition is warranted, counsel must serve
and file notice of that determination within 90 days after assignment. For all petitions
assigned to the Office of the Public Defender, the prosecutor shall, within 60 days after
service of a copy of the amended petition or the notice that no amended petition will be
filed, serve and file an answer to the petition or amended petition. For all other petitions
for post-conviction relief, w[W]ithin [30] 60 days after service of a copy of the petition or
amended petition, the prosecutor shall serve and file an answer thereto. [or move on 10
days' notice for dismissal. If a motion for dismissal is denied the State's answer shall be
filed within 15 days thereafter.] The court may make such other orders with respect to
pleadings, as it deems appropriate.
Note: Source--R.R. 3:10A-9[.]; caption and text amended_____________to be
effective____________.
54
3:22-10. Presence of Defendant at Hearing; Preference; Evidentiary Hearing
[The proceedings shall be given preference and be determined promptly.]
(a) A defendant in custody [may be present in court in the court's discretion and] shall
be entitled to be present when oral argument or testimony is adduced [on a material issue
of fact within the defendant's personal knowledge]. The defendant’s presence can be
waived by counsel upon request of the defendant.
(b) A defendant shall be entitled to an evidentiary hearing only upon the
establishment of a prima facie case in support of post-conviction relief, a determination
by the court that there are material issues of disputed fact that cannot be resolved by
reference to the existing record, and a determination that an evidentiary hearing is
necessary to resolve the claims for relief. To establish a prima facie case, defendant must
demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the
light most favorable to the defendant, will ultimately succeed on the merits.
(c) Any factual assertion that provides the predicate for a claim of relief must be made
by an affidavit or certification pursuant to Rule 1:4-4 and based upon personal knowledge
of the declarant before the court may grant an evidentiary hearing.
(d) The scope of an evidentiary hearing shall be limited to the issue of whether the
defendant was improperly convicted.
(e) A court shall not grant an evidentiary hearing:
(1) if an evidentiary hearing will not aid the court’s analysis of the defendant’s
entitlement to post-conviction relief;
55
(2) if the defendant’s allegations are too vague, conclusory or speculative; or
(3) for the purpose of permitting a defendant to investigate whether additional
claims for relief exist for which defendant has not demonstrated a reasonable likelihood
of success as required by R. 3:22-10(b).
Note: Source--R.R. 3:10A-11; amended July 13, 1994 to be effective September 1,
1994[.]; first paragraph of rule amended and designated as new paragraph (a) and new
paragraphs (b), (c), (d) and (e) added _________to be effective________________.
56
3:22-11. Determination; Findings and Conclusions; Judgment; Supplementary
Orders
The court shall make its final determination within 30 days of the hearing or, if there
is no hearing, within 30 days of the filing of the last amended petition or answer. In
making final determination upon a petition, [either on motion for dismissal or after
hearing,] the court shall state separately its findings of fact and conclusions of law, and
shall enter a judgment, which shall include an appropriate order or direction with respect
to the judgment or sentence in the conviction proceedings and any appropriate provisions
as to rearraignment, retrial, custody, bail, discharge, correction of sentence, or as may
otherwise be required.
Note: Source--R.R. 3:10A-12[.]; amended _________________to be effective_____ .
57
3:22-12. Limitations
(a) General Time Limitations. [A petition to correct an illegal sentence may be filed
at any time.]
(1) First Petition For Post-Conviction Relief. No [other] petition shall be [filed]
granted pursuant to this rule if filed more than 5 years after rendition of the judgment or
sentence sought to be attacked unless it alleges facts showing that the delay beyond said
time was due to defendant's excusable neglect and that there is a reasonable probability
that if the defendant’s factual assertions were found to be true the defendant would have
been found not guilty.
(2) Second or Subsequent Petition for Post-Conviction Relief. Notwithstanding
any other provision in this rule, no second or subsequent petition shall be filed more than
one year after the latest of:
(A) the date on which the constitutional right asserted was initially
recognized by the United States Supreme Court or the Supreme Court of New
Jersey, if that right has been newly recognized by either of those Courts and made
retroactive by either of those Courts to cases on collateral review; or
(B) the date on which the factual predicate for the relief sought was
discovered, if that factual predicate could not have been discovered earlier through
the exercise of reasonable diligence.
(3) A petition dismissed pursuant to R. 3:22-6A(3) without prejudice as not
cognizable under R. 3:22-2, or for failing to meet the requirements of R. 3:22-8, shall be
treated as a first petition for purposes of these rules if amended and refiled within 90 days
58
after the date of dismissal, or 5 years after rendition of the judgment or sentence sought to
be attacked, whichever is later.
(b) . . . No Change
(c) These time limitations shall not be relaxed, except as provided herein.
Note: Source--R.R. 3:10A-13. Caption added and text designated as paragraph (a), and
new paragraph (b) added July 12, 2002 to be effective September 3, 2002[.]; paragraph
(a) amended and redesignated as paragraph (a)(1) new paragraphs (a)(2), (a)(3) and (c)
added ___________________to be effective____________________.
59
2. Rules 2:5-3(d) and 3:22-6(c) – Ordering Transcripts in Municipal Appeals
and Appeals from Second or Subsequent Denials of Petitions for Post-
Conviction Relief
The Committee is proposing amendments to R. 2:5-3(d) and R. 3:22-6(c) to make
the ordering of transcripts in municipal appeals and in appeals from the denial of a
second or subsequent post-conviction relief application discretionary. The reasoning
behind this proposal is that the Appellate Division may not need transcripts in certain
cases on appeal, other than those presented to the Law Division particularly those
involving second or subsequent petitions for post-conviction relief that have been
dismissed on the papers and there is a written statement of reasons for the decision made
by the Superior Court so that the oral transcript is reduced to writing. The Committee is
of the view that the court can avoid costs associated with the ordering of transcripts in
these cases.
The Committee believes that as currently written, the “where necessary” language
contained in R. 3:22-6 could be interpreted to make the ordering of transcripts either
mandatory or discretionary in second or subsequent petitions for post-conviction relief.
The proposed amendment would change “shall” to “may” in R. 2:5-3(d) and R. 3:22-6(c)
in a effort to make it clearer that transcripts need not be ordered in cases that fall within
these rules. The Committee is proposing amendments to R. 2:5-3(d) and R. 3:22-6(c).
60
R. 2:5-3. Preparation and filing of transcript; statement of proceedings; prescribed
transcript request form
(a) . . . No Change.
(b) . . . No Change.
(c) . . . No Change.
(d) Deposit for Transcript; Payment Completion. The appellant, if not the State or a
political subdivision thereof, shall, at the time of making the request for the transcript,
deposit with the reporter or the clerk of the court or agency from whom a transcript is
ordered, either the estimated cost of the transcript as determined by the court reporter,
clerk or agency, or the sum of $ 500.00 for each day or fraction thereof of trial or hearing.
If the appellant is the State or a political subdivision thereof, it shall provide a voucher to
the reporter or the clerk or the agency for billing for the cost of the transcript. The
reporter, clerk or agency, as the case may be, shall upon completion of the transcript, bill
or reimburse the appellant, as appropriate, for any sum due for the preparation of the
transcript or overpayment made therefore. If the appellant is indigent and is entitled to
have a transcript of the proceedings below furnished without charge for use on appeal,
either the trial or the appellate court, on application, may order the transcript prepared at
public expense. Unless the indigent defendant is represented by the Public Defender or
that office is otherwise obligated by law to provide the transcript to an indigent, the court
may [shall] order the transcript of the proceedings below furnished at the county's
expense if the appeal involves prosecution for violation of a statute and at the
municipality's expense if the appeal involves prosecution for violation of an ordinance.
(e) . . . No Change.
61
(f) . . . No Change.
Note: Source-R.R. 1:2-8(e) (first, second, third, fourth, sixth and seventh sentences), 1:2-
8(g), 1:6-3, 1:7-1(f) (fifth sentence), 3:7-5 (second sentence), 4:44-2 (second sentence),
4:61-1(c), 4:88-8 (third and fourth sentences), 4:88-10 (sixth sentence). Paragraphs
(a)(b)(c) and (d) amended July 7, 1971 to be effective September 13, 1971; paragraphs
(b) and (d) amended July 14, 1972 to be effective September 5, 1972; paragraph (c)
amended June 29, 1973 to be effective September 10, 1973; caption amended and
paragraph (a) caption and text amended July 24, 1978 to be effective September 11,
1978; paragraphs (c) and (d) amended July 16, 1981 to be effective September 14, 1981;
paragraph (e) amended November 1, 1985 to be effective January 2, 1986; paragraph (a)
amended, paragraph (d) caption and text amended, former paragraph (e) redesignated
paragraph (f), and paragraph (e) caption and text adopted November 7, 1988 to be
effective January 2, 1989; paragraphs (a) and (e) amended July 14, 1992 to be effective
September 1, 1992; paragraphs (c), (e) and (f) amended July 13, 1994 to be effective
September 1, 1994; paragraph (d) amended July 28, 2004 to be effective September 1,
2004; paragraphs (a) and (e) amended July 27, 2006 to be effective September 1, 2006[.];
paragraph (d) amended to be effective .
62
R. 3:22-6. Indigents; waiver of fees; assignment of counsel, and grant of transcript;
assigned counsel may not withdraw
(a) . . . No Change.
(b) . . . No Change.
(c) Transcript. After assignment of counsel, or if the indigent defendant proceeds
without counsel, the court may [shall] grant an application for the transcript of testimony
of any proceeding shown to be necessary in establishing the grounds of relief asserted.
(d) . . . No Change.
Note: Source-R.R. 3:10A-6(a)(b)(c)(d). Paragraph (b) amended July 14, 1972 to be
effective September 5, 1972; paragraphs (a) and (d) amended July 13, 1994 to be
effective January 1, 1995[.]; paragraph (c) amended to be effective .
63
3. Rule 2:7-2(d) – Attorney of Record
During the 2004-2007 rules cycle, the Court adopted the Committee’s
recommendation to amend R. 2:7-2(d) to assure that a timely notice of appeal is filed in
the Appellate Division after an unsuccessful trial de novo and to assure timely assignment
of counsel where the assigned attorney filing the notice of appeal is seeking to withdraw
and have the court appoint another attorney. As amended, the rule was designed to
provide that if assigned counsel is the counsel of record in the Law Division and does not
move to withdraw or be substituted as counsel, that attorney will remain the counsel of
record for an appeal. These amendments were effective on September 1, 2007.8
In State v. Taimanglo, 403 N.J. Super. 112, 121 (App. Div. 2008), the Appellate
Division stated, in footnote 7:
We also note assigned counsel's obligation to file an appeal to
us if desired by the client, and to move to be relieved
thereafter. See R. 2:7-2(d); Pressler, Current N.J. Court Rules,
comment 4 on R. 2:7-2(d) (2009). There is no indication of an
intent to change the filing requirement when R. 3:27-2 was
deleted and R. 2:7-4 was amended in 2004. See also State v.
Sheridan, 280 N.J. Super. 419, 655 A.2d 934 (App. Div.
1995); Pressler, supra.
As currently written, paragraph (d) of R. 2:7-2 provides that assigned counsel
remain counsel on appeal, unless counsel moves to be relieved, but the rule does not
provide that counsel must actually file the appeal. In light of Taimanglo, the Committee
is proposing to add language to paragraph (d) to clarify that assigned counsel is also
obligated to file the appeal. This proposed amendment addresses assigned counsel in
8
The Court also adopted the Committee’s recommendation to remove cross-references to other rules that were
contained in paragraph (d) of the rule.
64
non-indictable cases when a defendant is convicted, has de novo review in the Law
Division, and then files an appeal in the Appellate Division. The Committee agreed to
also recommend an amendment to the caption of paragraph (d) to reflect that this
paragraph of the rule addresses appeals filed in non-indictable prosecutions.
The Committee is recommends the proposed amendments to R. 2:7-2(d).
65
2:7-2. Assignment of Counsel on Appeal
(a) …No Change.
(b) …No Change.
(c) …No Change.
(d) ...Responsibility of Counsel Assigned by the Trial Court For Non-Indictable
Offenses. Assigned counsel representing a defendant in a non-indictable prosecution
shall file an appeal for a defendant who elects to exercise his or her right to appeal. An
attorney filing a notice of appeal shall be deemed the attorney of record for the appeal
unless the attorney files with the notice of appeal an application for the assignment of
counsel on appeal.
Note: Source--R.R. 1:2-7(b), 1:12-9(b) (d). Paragraph (c) adopted November 1, 1985 to
be effective January 2, 1986; paragraph (a) amended, paragraph (b) caption and text
amended, paragraph (c) adopted and former paragraph (c) redesignated paragraph (d)
November 5, 1986 to be effective January 1, 1987; paragraphs (b) and (d) amended July
10, 1998 to be effective September 1, 1998; paragraphs (b) and (d) amended July 12,
2002 to be effective September 3, 2002; paragraph (d) amended June 15, 2007 to be
effective September 1, 2007[.]; paragraph (d) caption and text amended to
be effective .
66
4. Rule 3:30 – Expungement Fees
The Committee is proposing a new rule, R. 3:30, to address fees to file an
application or petition for an expungement of records. Currently, the fees to process an
application or petition for the expungement of records are contained in two separate
statutes, N.J.S.A. 22A:2-25 and N.J.S.A. 2C:52-29, which has caused confusion as to the
total fee required.
N.J.S.A. 22A:2-25 governs Law Division Filing fees and states:
Upon the filing, entering or docketing with the deputy clerk
of the Superior Court in the various counties of the herein-
mentioned papers or documents by either party to any action
or proceeding in the Law Division of the Superior Court,
other than a civil action in which a summons or writ must be
issued, he shall pay the deputy clerk of the court the
following fees:
. . . Filing first paper on petition for expungement …$ 22.50
N.J.S.A. 2C:52-29 also governs expungement filing fees. It states:
Any person who files an application pursuant to this chapter
shall pay to the State Treasurer a fee of $30.00 to defer
administrative costs in processing an application hereunder.
Based upon these two statutes, when an individual files an application or petition
for an expungement of records, the total fee is $52.50.
The Committee is recommending the adoption of a new rule, R. 3:30, to reference
the two applicable statutes requiring fees to file an application or petition for an
expungement of records in one court rule. The Committee recommends that new R. 3:30
be adopted.
67
Rule 3:30. Fees for Expungement of Records
Any person who files an application for an expungement of records, pursuant
to N.J.S.A. 2C:52-1 to - 32, shall pay filing fees as required by N.J.S.A. 2C:52-29
and N.J.S.A. 22A:2-25.
Note: Adopted ________ to be effective .
68
B. Non-Rule Recommendations
1. Amendments to the Main Plea Form – Immigration Status Issues
The Committee is proposing that Question #17 of the Main Plea Form,
which addresses a defendant’s immigration status, be clarified. Currently,
Question #17 of the Main Plea Form reads: “Do you understand that if you are
not a United States citizen or national, you may be deported by virtue of your plea
of guilty?” This question provides for a response of Yes, No or NA (i.e. not
applicable). The Conference of Criminal Presiding Judges reported that when
defendants select the response of “not applicable” in Question #17, often the
record is unclear of why they provided that response. The Conference explained
that many defendants have filed motions to vacate their guilty pleas arguing that
the possible immigration/deportation consequences were not fully explained to
them by counsel at the time the plea was entered. To alleviate this concern, the
Conference of Criminal Presiding Judges recommended amending Question #17
of Main Plea Form as follows:
Question #17:
#17a. Are you a citizen of the United States? [YES] [NO]
(If no, answer question #17b)
#17b. Do you understand that if you are not a [YES] [NO]
United States citizen or national, you
may be deported by virtue of your plea
of guilty?
69
The Committee agreed to recommend the amendments without any
objections. The revisions to the Main Plea Form were promulgated in Attachment
1 of Directive #14-08 (October 8, 2008).
70
2. Amendments to Main Plea Form – Interstate Compact for Adult Offender
Supervision
The Federal Interstate Commission for Adult Offender Supervision (ICAOS)
passed two amendments to the Interstate Compact Rules that went into effect on January
1, 2008. The ICAOS is charged with overseeing the day-to-day operations of the
Interstate Compact for Adult Offender Supervision (Compact), a formal agreement
between member states that seeks to promote public safety by systematically controlling
the interstate movement of certain adult offenders. Upon request of the Administrative
Office of the Courts, Probation Services Division, the Committee considered whether a
rule amendment or an amendment to the plea forms was necessary in light of the
Compact rules involving the transfer of supervision of sex offenders.
Effective January 1, 2008, the ICAOS adopted Rule 1.101 to define a “sex
offender” as: “an adult placed under, or made subject to, supervision as the result of the
commission of an offense and released to the community under the jurisdiction of the
courts, paroling authorities, corrections or other criminal justice agencies, and who is
required to register as a sex offender either in the sending or receiving state, and who is
required to request transfer of supervision under the provisions of the Interstate Compact
for Adult Offender Supervision.” The ICAOS also adopted Rule 3.101-3 regarding
transfer of supervision of sex offenders. The transfer rule provides that “a sex offender
shall not be allowed to leave the sending state until the sending state’s request for transfer
of supervision has been approved, or reporting instructions have been issued by the
receiving state.” As far as timing, the receiving state has five business days to review the
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defendant’s proposed residence to ensure compliance with local laws before issuing
reporting instructions. If the proposed residence is invalid because of an existing law or
policy, the receiving state may deny reporting instructions. In effect the rule, as applied
can prevent a defendant from leaving the sending state until the receiving state approves
the transfer. As a consequence, some defendants may not be able to return home after
being sentenced to probation by the court or after being released on parole.
The Committee first discussed the definition of a “sex offender” and recognized
that offenses requiring sex offender registration in New Jersey may be different from
offenses requiring sex offender registration under a receiving state’s law or policy. As
part of the package to transfer a defendant’s supervision to another state, the New Jersey
Probation Division normally provides the receiving state with information from police
reports and presentence investigation reports (PSI). These investigative reports may
reveal allegations of sexual conduct or a sexual component in the case. The receiving
state will have available these allegations contained in the PSI and/or police report to
possibly consider in determining whether a defendant falls within the definition of a “sex
offender” pursuant to the ICAOS rules and under the receiving state’s law and policy.
Such consideration can even occur if the allegations of sexual conduct or a sexual
component are not a part of the factual basis elicited in support of a guilty plea or the
resulting conviction. For instance, the receiving state may consider allegations contained
in the PSI or police report even when a defendant pleads guilty to a downgraded or lesser
included offense that does not include an element involving sexual conduct or an alleged
72
sexual component. As an example, the Committee considered a hypothetical situation
where a defendant resides in another state, is convicted of burglary in New Jersey and the
facts set forth in the police report indicate a sexual component of the crime; however the
defendant is not charged with or convicted of a sex offense under New Jersey law.
Although the defendant is not charged with or convicted of a sex offense in New Jersey,
the receiving state (i.e., the state of the defendant’s residence) will have available the
investigative reports prepared in the case when assessing whether the defendant qualifies
as a “sex offender” pursuant to the receiving state’s law or policy and the ICAOS rules.
As a result, the defendant may fall within the definition of “sex offender” under the
ICAOS rules and may not be able to return home until a transfer of supervision plan is
approved.
A representative from the Office of the Attorney General contacted the National
Association of Attorneys General to query how other states are handling the application
of the ICAOS rules. Responses from seven states revealed that none of the states were
providing notification to defendants of the possible consequences of the rules, either
because the state considered the application of the rules to be a collateral consequence of
the plea, which did not require notice or because the state had not yet developed any
policies or procedures to address the rules. Although other states have not implemented
any procedures to address the ICAOS rules, the Committee believes that is appropriate
for New Jersey to do so.
73
The Committee considered different ways to inform a defendant, who lives in or
may move to another state, that if there are allegations involving sexual conduct the
Compact may apply and that the defendant may not be able to return home until a
supervision plan is approved. Most members were of the view that a question should be
included on one of the plea forms because it will alert defendants, attorneys and judges to
this potential issue and will help ensure that a knowing and intelligent plea is taken.
Some members believed a question would be best placed on the Additional Questions
For Certain Sex Offenses (Megan’s Law) Plea Form, because it would capture the
majority of defendants who would be affected by the Compact Rules regarding sex
offenders. Others were of the view that a question should be added to the Main Plea
Form to provide notification to all defendants of the possible application of the ICAOS
rules, even if the defendant is not convicted of a sex offense in New Jersey. Some
members objected to including a question on either of the plea forms, being of the view
that application of the Compact Rules is a collateral consequence of a plea and adding
more questions “dilutes” the plea form. The Committee also discussed whether notice in
the plea form was “too late” and whether this potential consequence should be explained
by defense counsel prior to plea negotiations, to allow the defendant to raise any possible
objections before the plea is taken.
A discussion ensued and by a 16-2 vote the Committee determined that a
notification question should be added to the Main Plea Form. The Committee believed
that a 2-part question is appropriate, because the Compact applies to probationers and
74
parolees who may reside in or to move to another state. Question #18a explains to all
defendants that if they reside out-of-state, that return to their residence may be delayed
until a transfer of supervision plan is approved. Question #18b focuses on the transfer of
supervision to another state for defendants who may qualify as a “sex offender” under the
ICAOS rules or the law or policy of the receiving state. The Main Plea Form has been
amended to include new questions #18a and #18b, which state:
18a. Do you understand that pursuant to the rules of [YES] [NO]
The Interstate Compact for Adult Offender
Supervision if you are residing outside the State
of New Jersey at the time of sentencing that
return to your residence may be delayed
pending acceptance of the transfer of your
supervision by your state of residence?
18b. Do you also understand that pursuant to the same [YES] [NO]
Interstate Compact transfer of your supervision
to another state may be denied or restricted by
that state at any time after sentencing if that
state determines you are required to register as a
sex offender in that state or if New Jersey has
required you to register as a sex offender?
The revisions to the Main Plea Form were promulgated in Attachment 1 of AOC
Directive #14-08 (October 8, 2008).
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3. Presentence Reports
I. Introduction
The factual basis for a plea may not correspond to the allegations and facts
embodied in a presentence report or may not be relevant to a negotiated plea
recommendation. Therefore, during the 2002-2004 term, the Criminal Practice
Committee considered various issues concerning corrections to adult presentence
investigation (PSI) reports and which version of a criminal offense should be included in
the “Offense Circumstances” section of the PSI. The Committee created a Subcommittee
during the 2002-2004 term to examine these issues. Due to changes in the Committee’s
roster, the Subcommittee was reconvened with new members during the 2004-2007 term.
During the 2004-2007 term, the Subcommittee was also asked to consider
implementing any forms and/or procedures to make the Department of Corrections and
classification personnel aware of any particular dangers or needs for medication for
prisoners being transferred into state custody following sentencing, and to make sure that
any suicide or similar mental health illness possibilities are timely brought to the
attention of institutional authorities upon commitment. With regard to the facts of the
case, the Subcommittee was asked to consider the impact upon the use of presentence
reports in Sexually Violent Predator Cases and Parole Board hearings, where presentence
reports are relied upon in subsequent hearings to determine the actual facts of the case.
The Committee considered this issue during its discussion of the version of the criminal
offense that should be included in the “Offense Circumstances” section of the PSI.
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To fully understand the current practice and to consider practical solutions, the
Subcommittee asked the Conference of Criminal Division Managers and the Conference
of Criminal Presiding Judges to consider developing a uniform protocol (1) to
memorialize challenges and corrections made to the presentence report, (2) to incorporate
the court’s findings regarding challenges and corrections, and (3) to forward revised
presentence reports to the parties and interested entities. The Subcommittee also asked
the Conference of Criminal Presiding Judges to consider what is (or should be) the
“official version” of the offense contained in the presentence report.
The Conference of Criminal Division Managers and the Conference of Criminal
Presiding Judges forwarded their comments and recommendations on these matters to the
Subcommittee. The Subcommittee took the Conferences’ input into consideration in
drafting a report. The full Committee reviewed the Subcommittee’s Report. Set forth
below is a discussion of the pertinent issues and proposed recommendations to address
these issues.
II. Corrections To The Presentence Investigation (PSI) Report
A. Background
Challenges to the presentence report are normally raised during the sentencing
proceeding in open court. Rarely are challenges presented to the court before the
sentencing hearing. During the Criminal Practice Committee’s 2002-2004 term, a
Deputy Public Defender from Camden County appeared before the Committee and
asserted that when challenges to entries in the PSI were raised at the sentencing hearing,
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the court often accepted changes to the presentence report proposed by defense counsel
or, based on defense counsel’s objections, decided not to consider certain disputed
information contained in the PSI for purposes of sentencing. The presentence report,
however, would not be officially amended, so any changes made or objections raised at
the time of sentencing were not contained in versions of the PSI that were forwarded to
the Department of Corrections (DOC), the Probation Division or the State Parole Board.
The Committee recognized that presentence reports were initially intended only to
aid the court during sentencing, but are now used by the Parole Board, the Probation
Division and the DOC for far different purposes. For instance, the Committee learned
that the DOC uses information contained in the PSI for classification purposes, to
determine custody status, to make job assignments, to recommend drug treatment
programs and to determine eligibility for community release. For the DOC’s purposes
the most important information in the PSI is contained in the sections describing the
circumstances of the offense, the prior court history, the employment history, the mental
health history and the defendant’s version of the offense. While the DOC looks at the
prior court history section of the PSI, it also conducts its own criminal history
investigation.
The State Parole Board uses the information that is in the PSI in essentially the
same way as the DOC. For the Parole Board, the most important information is
contained in the sections describing the circumstances of the offense, medical and mental
history, and the defendant’s version of the offense. Unlike the DOC, the Parole Board
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does not conduct an independent investigation regarding the offender’s criminal history.
It relies exclusively on the information that is set forth in the PSI. Likewise, the
Probation Division utilizes the PSI to establish a meaningful case plan and develop
conditions of supervision.
Consequently, if changes or challenges are made to the information contained in
the PSI, often, those changes or challenges are not documented or forwarded to the
interested parties or agencies. Therefore, when the Parole Board considers whether to
release a particular defendant on parole, it could be relying on the original, uncorrected
presentence report, rather than on a corrected version of the report. That, in turn, could
have an impact on whether the defendant is paroled. Additionally, the DOC often relies
on the information in the PSI to make classification and other decisions. Incorrect
information contained in the PSI could impact upon those decisions, as well. Also, the
Probation Division relies on the PSI to develop a case plan or monitoring strategy based
upon behaviors that may not be reflected in the factual basis for the plea, but may be a
part of the PSI.
B. Types of Challenges/Corrections to PSI
The Committee identified the following common substantive challenges and/or
corrections that are made to the PSI: (1) jail credits (the Committee did not believe that
this was a significant problem); (2) facts of the offense; and (3) prior arrests or
convictions in the court history section of the PSI. Additionally, the Committee
recognized that occasionally administrative corrections are made to the PSI, such as
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changes to telephone numbers and addresses. The Committee agreed that to maintain the
credibility of the presentence investigation process, it is imperative to develop a policy
that all corrections or changes made to the PSI should be captured and forwarded to
appropriate parties or interested entities, regardless of whether it is an administrative
change or a substantive correction.
1. Challenges to the Court History Section of the PSI
Often defendants challenge entries contained in the court history section of the
PSI. Frequently defendants assert that the court history section of the PSI contains
incorrect charges and/or dispositions. The information set forth in the court history
section of the PSI is primarily obtained from a defendant’s Computerized Criminal
History (CCH) which is maintained by the New Jersey State Police and is supported by
fingerprint comparisons. In addition, some court history entries are derived by running a
name check in the criminal Promis/Gavel9 system or municipal Automated Complaint
System (ACS) and comparing other personal identifiers, such as a social security number,
address or date of birth. Promis/Gavel and ACS searches are not verified by fingerprint
comparisons.
Normally, when presented with a challenge to an entry in the court history section
of the PSI, sentencing judges will advise defense counsel and the defendant that the
9
The Promis/Gavel system is an automated criminal case tracking system that captures information concerning
defendants who have been charged with indictable offenses and tracks the processing of those defendants from
initial arrest through appellate review. It provides the function of docketing, indexing, noticing, calendaring,
statistical reporting, and case management reporting.
80
challenge, even if accepted as true, will not change the sentence they are planning to
impose. The sentence is then imposed without consideration of the disputed entry and
without any changes being made to the PSI. Copies of the PSI, as presented to the court,
are then distributed to the Probation Department or the Department of Corrections and
Parole Board depending on the type of sentence imposed.
The Conference of Criminal Division Managers expressed the view that many
defense attorneys and defendants incorrectly assume that because the court proceeded
with sentencing after a challenge is made, that the court accepted the challenge and that
all of the PSI reports will be amended accordingly. However, unless formally requested
by the court, the Criminal Division does not edit the criminal history contained in the PSI
based solely on the assertions of defense counsel and the defendant. The Committee
reached the consensus that a defendant challenging an entry in the PSI has the burden to
provide documentation showing that the entry in the report is incorrect. This includes
challenges to court history entries, jail credits or other substantive or administrative
entries.10
Several objections were raised to the requirement that a defendant must provide
documentation to challenge an entry in the PSI. Representatives from the defense bar
explained that it is highly unlikely and probably unattainable for defendants to prove
inaccuracies in the PSI because they do not have access to criminal history record
10
The Committee also identified challenges to restitution amounts as a prevalent issue. The Committee determined,
however, that the burden on the defendant to provide documentation showing that an entry in the PSI is incorrect
does not apply to challenges to restitution amounts. See State v. Martinez, 392 N.J. Super. 307, 318-19 (App. Div.
2007) (holding that the State has the burden to prove the amount of restitution).
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information and, therefore, objected to this recommendation. Another member raised a
concern of requiring a defendant to provide “documentation” of an alleged inaccuracy
and suggested that the defendant should only be required to provide “evidence” of an
alleged inaccuracy. Moreover, it was explained that frequently, challenges to the PSI are
raised on the date of sentencing leaving little or no time to conduct research on alleged
discrepancies.
2. Verification of Court/Criminal History
As set forth above, a frequent challenge made by defendants to the PSI involves
the defendants’ prior court or criminal history. In all counties, the Criminal Division
Manager’s office has a policy of listing all court history that is available in Promis/Gavel
and ACS, as well as information contained in the NCIC rap sheet. Some of the history
can be verified by fingerprint comparisons. Other court information is derived by
running a name check and comparing other information, such as a social security number,
address, or date of birth and is not verified by fingerprint comparisons.
In some counties the PSI contains a notation indicating the criminal history entries
that have been verified by a fingerprint comparison. While all counties are aware of the
criminal history entries that are supported by fingerprint comparison, the majority do not
note this verification in the court history section of the PSI. Instead, the court typically
notes on its version of the PSI if there is a challenge to a record in the PSI. Depending on
the offense, the court may or may not consider that record in determining the sentence.
The Committee acknowledged that while both of these procedures, fingerprint
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comparisons and the judge’s notations on a hardcopy of the PSI, assist the judge at
sentencing, neither takes the additional step of forwarding the challenges or the judge’s
findings to the DOC, Probation or the Parole Board.
The Committee agreed that it would be helpful to know if a court record or
criminal history is verified by a fingerprint comparison. The Committee agreed that a
statewide policy should be developed regarding verification of court/criminal history
records and notations of whether or not the records are verified by fingerprint
comparisons. It is referring this issue to the Conference of Criminal Division Managers
for implementation.
3. Other Corrections or Amendments to the PSI
Occasionally, administrative changes to the PSI, such as, correcting inaccurate
telephone numbers or addresses are raised at the time of sentencing. The Committee
learned that these changes, like challenges to the court or criminal history entries, are
normally documented on a hardcopy of the PSI, but may not be forwarded to the DOC,
Probation Division or State Parole Board.
C. Referral to the Conference of Criminal Division Managers
At the request of the Subcommittee, the Conference of Criminal Division
Managers developed a procedure to ensure that challenges and corrections to the
presentence report that are accepted at the time of sentencing are incorporated into copies
of the PSI that are distributed to the parties and other entities. The procedure also
explains a method to address challenges a defendant raises to the court or criminal history
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entries in the PSI, as well as other administrative corrections. The procedure proposed by
the Conference of Criminal Division Managers has been supported by the Conference of
Criminal Presiding Judges and is summarized in the recommendations set forth below.
D. Recommendations
The full Committee voted to adopt the following recommendations. Several
Committee members, including representatives from the Office of the Public Defender
objected to RECOMMENDATION 2, being of the view that it would place an
unreasonable burden on defendants to challenge court or criminal history entries
contained in the PSI.
RECOMMENDATION 1: Refer to the Conference of Criminal Division Managers to
develop a protocol to provide notations on the PSI of whether or not an arrest or criminal
history entry or court history entry is verified by a fingerprint comparison.
RECOMMENDATION 2: A defendant challenging an entry in the PSI has the burden
to provide documentation showing that the entry in the report is incorrect. This includes
challenges to court history or criminal history entries, jail credits or other substantive or
administrative entries.11
• If the defendant’s request to change information contained in the PSI involves
a challenge to (1) a court history entry or criminal history entry that is not
supported by a fingerprint comparison, (2) jail credit or other substantive
entries or (3) administrative entries and the challenge is accepted by the Court,
the judge shall note the changes on his or her copy of the report which should
be given the team leader. Court-approved modifications should be made in
accordance with RECOMMENDATION 3.
• If the defendant’s request to change information contained in the PSI involves
a challenge to a court history entry or criminal history entry that is supported
11
Several Committee members including representatives from the Office of the Public Defender Office objected to
the recommendation that a defendant have the burden to provide documentation that an entry in the PSI is
inaccurate. Those members are of the view that this requirement places an unreasonable burden on defendants to
challenge court history entries in the PSI.
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by a fingerprint comparison, the defendant shall resolve the dispute with law
enforcement.
• If the defendant challenges an entry in the PSI, but does not provide
documentation to support the challenge, the disputed entry will remain in the
PSI.
• The court should indicate on the record and on an affixed cover sheet whether
a challenge was made, whether it accepted the challenge and modified the
report or if it did not accept the challenge. The court should also indicate
whether it is considering the disputed entry in imposing the sentence.
RECOMMENDATION 3: Court approved changes to the PSI must be made in the
automated judiciary database.
• All changes that are made to the PSI must be approved by the court. Upon
court approval, modifications to the automated version of the PSI shall be
made by staff of the Criminal Division with proper security clearance, such as
a team leader.
RECOMMENDATION 4: If changes are made to previously distributed copies of the
PSI, revised copies of the PSI will be distributed to all parties, including the prosecutor
and defense counsel and to interested agencies, including the Probation Division, the
State Parole Board and the Department of Corrections, depending upon the sentence
imposed.
• When an original PSI report is distributed to the parties and other interested
agencies (i.e., the Department of Corrections, the State Parole Board or
Probation Division) and a successful challenge is made to the report, the PSI
will be amended in accordance with RECOMMENDATIONS 2 and 3, above,
and be redistributed.
• When revised copies of the PSI report are redistributed, they will have
transmittal sheet affixed to alert the receiving entity that the PSI has been
revised.
• Revised copies of the PSI report will be forwarded to the parties and interested
agencies who received the original version of the report.
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III. “Official” Version Of The Offense
The most current version of the PSI report (rev. 1/2006) has sections to insert the
“Offense Circumstances,” “Special Factors Relative to the Offense” and the “Defendant’s
Version”12 of the offense. Frequently, other documents are attached to the PSI detailing
the alleged facts surrounding the case, such as, copies of police reports, indictments, and
witness’ statements. Most, if not all, of these documents are generated by the prosecution
or law enforcement.
The Committee considered which “version” of the offense should be included in
the “Offense Circumstances” section of the PSI. More specifically, the Committee
discussed whether the PSI should include the police report version of the offense, the
State’s version of the offense (which may be different from the police report), the
defendant’s version of the offense and/or the factual basis for the offense that is provided
in support of a guilty plea. The Committee learned that the descriptions contained in the
“Offense Circumstances” section of the PSI can vary by county. In some counties, it is a
verbatim recitation of what is contained in police reports. In other counties, the “Offense
Circumstances” includes a recitation of what is contained in the indictment. In still
others, it is a compilation of the circumstances from a variety of sources, including facts
stated in police reports, witness statements, and the indictment, which are contained in
the discovery package. As a result, often times, the facts described as the “Offense
12
The PSI states that the defendant’s version of the offense is to be completed only upon application for PTI and
after conviction.
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Circumstances” can be vastly different from the evidence adduced at trial or the facts that
the defendant admits to when pleading guilty.
A. Referral to the Conference of Criminal Presiding Judges
The Subcommittee referred to the Conference of Criminal Presiding Judges to
consider: (1) What is (or should be) the “official version” of the offense in the
presentence report, and (2) should the factual basis provided at the time of the plea be
incorporated into the presentence report? If so, how should this be done? The
Conference reached several conclusions. First, the Conference concluded that no
changes should be made at this time to recharacterize the “official version” of the facts in
the presentence report. It reached the general consensus that the presentence report was
designed to assist the courts in assessing the “whole person” to impose an appropriate
sentence. The Conference believes that the problems raised are more a result of “the
perception that recipients (other than the court) may use this information for different
purposes than for which it was created, as opposed to any inherent problems with the
‘official version’ contained in the report.”
The Conference pointed out that sentencing judges understand, and so should
others, that there is a difference with regard to the events that lead to the defendant’s
arrest and indictment and the eventual charges to which the defendant admits guilt or is
found guilty. The Conference stated that other agencies that come in contact with the
defendant following sentencing should utilize the presentence report in conjunction with
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the Judgment of Conviction focusing on the specific charges for which the defendant was
found guilty or pled guilty and is subsequently sentenced.
Second, with regard to incorporating the factual basis provided at the time of a
guilty plea into the PSI, the Conference ultimately reached the conclusion that the current
practice should not be altered. In reaching this conclusion, the Conference extensively
discussed various methods to possibly incorporate the actual facts admitted at the plea
hearing into the PSI. First, it rejected a procedure requiring the court to memorialize the
facts admitted at the plea. The Conference felt that this potential solution is problematic
because the parties must agree with the judge’s summary of the facts elicited as part of
the plea and there is a possibility that long after sentencing, a defendant could allege that
the judge’s notes are inconsistent with the actual plea transcript, leading to future
litigation.
The Conference also considered a suggestion to attach the plea transcript to the
presentence report, which would reveal the facts admitted at the plea. The Conference
discussed this option but wanted additional information before endorsing such a
procedure, which would be costly. It agreed to consider this possibility after being
provided with more specific details of how this procedure would be implemented. As
discussed in subsection D, infra, the Committee decided to recommend the inclusion of
disclaimer language to the offense circumstances section of the PSI. Therefore, the
Conference of Criminal Presiding Judges did not reconsider a procedure to attach to the
plea transcript to the PSI report.
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B. Problems Arise Because of a Significant Difference Between the Facts
Supporting Alleged Charges and the Facts Supporting the
Conviction
The difference between the facts set forth in the police report, the indictment, and
the factual basis offered at the time of plea often can be significant. For example, a 75-
count indictment charging burglary and theft which is later pled down to five charges of
theft may not present an accurate picture of the defendant’s alleged criminal behavior.
The dismissed charges would be lost if the offense circumstances described in the PSI
were limited to only the crimes to which the defendant pled guilty. Both the Assistant
Director of Probation and the Executive Assistant of the Parole Board reported that it was
extremely important for their agencies to have a full account of a defendant’s purported
criminal behavior even though the defendant can be sentenced and punished only for the
crimes to which he pled guilty.
One area of concern raised by the Parole Board and the Probation Division
involves dismissed or downgraded charges of third degree endangering the welfare of a
child that may involve a sexual component of the offense. In these cases, the police
report may reveal facts describing a sexual component to the offense, however, the
conviction and/or sentencing do not reveal any application of Megan’s Law, Parole
Supervision for Life or other consequences, which accompany convictions for certain
sexual offenses. The Committee learned that, for these cases, upon request of the Parole
Board, the Public Defender’s Office has agreed to purchase plea transcripts when the
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Parole Board has questions regarding whether a sexual component was admitted to in a
guilty plea for endangering the welfare of a child cases.
Although the Public Defender’s Office and the Parole Board have reached an
agreement on how to handle factual questions in cases involving endangering the welfare
of a child, some Subcommittee members were concerned about the impact of possible
factual discrepancies in other cases where a description of the facts admitted at the plea is
not incorporated in the PSI. For instance, the Committee was made aware that the facts
contained in the presentence investigation report are often relied upon in subsequent
hearings to determine the actual facts of cases that fall within the Sexually Violent
Predator Act (N.J.S.A. 30:4-27.24, et. seq.) cases and also at parole board hearings.
The Committee also discussed a proposal to attach the plea transcript to the PSI.
It was suggested that perhaps providing Parole Board and DOC with a transcript of the
plea hearing might be helpful, because it would reflect the crime for which the defendant
was convicted. However, there would be a cost involved in doing so, at least with respect
to the cases that are not appealed. The Committee was informed that the Appellate
Division has offered to provide the Department of Corrections and Parole Board with
transcripts after appeals are concluded. However, this procedure has not been formally
implemented.
The Committee concluded that a proposal to attach the plea transcript to the PSI
report is impractical. First, there would be considerable and unacceptable delays in the
preparation of transcripts of plea colloquies. Second, most courtrooms use tape recorders
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and there are numerous pleas recorded on one tape. Therefore, the tapes would have to
be transported from the courthouse to the transcriber as various defendants request
preparation of the transcript. Third, the PSI will already have been sent to the State
Prison or County Jail by the time the transcript is ready. By rejecting an option to attach
the plea transcripts to the PSI, the Committee concluded that there was no need to have a
pilot project that isolates certain serious crimes or certain offenses by the length of
sentence to determine how much it would cost to get transcripts made for those offenses.
Finally, the Committee also considered requiring the lawyers to agree to the facts
and to provide their agreed upon factual version to be included in the PSI. The
Committee concluded that this would be unworkable. It would be difficult for the
attorneys to agree to the facts of the case in advance of the plea or sentencing because
typically, the prosecution and defense counsel do not meet before the court appearances.
Also, it was pointed out that asking the lawyers to prepare a short summary of the
defendant’s factual statement immediately after the plea was entered was likely to slow
the flow of other cases and pleas in that courtroom.
B. Problems with Use of Facts in Police Reports
The Committee was advised that some counties only include police reports in their
presentence reports, a practice that is not acceptable. See Manual for Preparation of the
Presentence Investigation Report, Section VI, page 1 (October 10, 1997). The Manual
for Preparation of the Presentence Investigation Report states:
The facts from police and prosecutor reports on both original
and final charges need to be ascertained and described in
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summary form for the report. Sentencing judges, probation,
prosecutors, correctional institutions, parole, the Avenel
Diagnostic Center, the Appellate Court, the AOC (for
research) need this information. Only attaching police reports
or an indictment is not acceptable.
See Manual for Preparation of the Presentence Investigation
Report, Section VI, page 1 (October 10, 1997).
See also Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205
(2005) (holding that that a sentencing court may not review police reports or complaint
applications to ascertain facts surrounding a prior conviction. A later court determining
the character of a prior conviction that resulted from a guilty plea “is generally limited to
examining the statutory definition, charging document, written plea agreement, transcript
of plea colloquy, and any explicit factual finding by the trial judge to which the defendant
assented.”). Moreover, it was noted that often police reports were a verbatim description
of how the victim described the offense, and that this was not necessarily what the State
alleged as the facts of the offense. It was suggested, however, that the sentencing judge
is not always the judge who took the plea and that in this situation, it is important for the
sentencing judge to be able to review the police report. The Committee believes that,
ordinarily, a summary of the facts and charges should suffice in this regard, as opposed to
attaching police reports or indictments to the PSI.
C. Defendant’s Version of the Offense
The Committee also discussed how to ensure that the defendant’s version of the
offense was included in the presentence report. The Committee was informed that during
the PSI interview process defendants generally are asked to provide their version of the
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offense. However, sometimes defendants may be counseled not to provide a version of
the case, because they may offer information that could support the finding of
aggravating factors to be considered at the time of sentencing or create other potential
consequences for themselves. The Committee considered developing a protocol that
defense counsel advise the defendant to provide a version of the offense to be included in
the PSI and that if no statement is made, when making future determinations, the DOC
and the State Parole Board will typically rely on the State’s version of the offense that is
contained in the PSI. 13
The Public Defender’s Office opposed this recommendation. The Committee
concluded that requiring this of defense counsel was impracticable, because it would
involve a paradigm shift in current practice. Additionally, there is a likelihood that a
defendant’s statement to a probation officer could vary from the facts admitted in open
court.
D. “Disclaimer Language”
Finally, the Committee considered adding “disclaimer” language to the PSI
following the section heading “Offense Circumstances.” It agreed that the best way to
resolve this complex issue would be to add the following disclaimer language to the PSI:
(These offense circumstances include descriptions of charges
of which the defendant may not have been found guilty by a
jury or may not have pled guilty to. This section should be
13
The Conference of Criminal Presiding Judges supported the recommendation for defense counsel to advise their
clients to provide a full and accurate “defendant’s version” to the probation officer during the presentence
investigation interview so that it can be included in the PSI report. However, this Subcommittee rejected that
proposal.
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read in conjunction with the Final Charges and the
"Defendant's Version")
The Committee is of the view that this language would sufficiently alert recipients
that the facts described in the “Offense Circumstances” may be different than the factual
basis set forth in support of a guilty plea and/or the charges for which a defendant is
convicted. The Committee believes that this recommendation would cover concerns that
have been raised regarding the use of presentence reports in Sexually Violent Predator
Cases and at parole board hearings, where presentence reports are relied upon in
subsequent hearings to determine the actual facts of the case. As a result, the Committee
concluded that there was no need for a rule amendment to indicate that individuals would
be bound by the “Offense Circumstances” version of the offense.
E. Rule Amendment Regarding Defendant’s Admissions
The Committee considered recommending a rule amendment to include language
that a defendant’s statements or admissions to a probation officer regarding his or her
version of an offense for purposes of completing a PSI cannot be used against him if the
plea is later rejected. The Committee reached the conclusion that a rule amendment was
not necessary, since, as set forth above, it rejected a requirement that defense counsel
advise their clients to provide a statement to the probation officer.
F. Recommendations
The full Committee voted to adopt the following recommendations.
RECOMMENDATION 1: The Committee recommends that disclaimer language be
added to the “Offense Circumstances” Section of the PSI to state as follows: (These
offense circumstances include descriptions of charges of which the defendant may not
94
have been found guilty by a jury or may not have pled guilty to. This section should be
read in conjunction with the Final Charges and the "Defendant's Version").
RECOMMENDATION 2: Only attaching police reports or indictments to the PSI
without a description in the “Offense Circumstances” section of the PSI is not acceptable.
The staff member should complete the “Offense Circumstances” of the PSI describing the
circumstances attending to the commission of the offense. Generally, police reports and
indictments should not be included in presentence investigation reports, however, they
may be included, if necessary, so long as the Offense Circumstances” of the PSI is also
completed.
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IV. FORMS AND PROCEDURES TO NOTIFY THE DEPARTMENT OF
CORRECTIONS OF MEDICATION NEEDS FOR PRISONERS
The Committee was asked to consider developing forms and procedures to notify
the Department of Corrections and classification personnel of suicide risks or needs for
medication for prisoners being transferred into state custody following sentencing, and to
make sure that any suicide or similar mental health illness possibilities are timely brought
to the attention of institutional authorities upon commitment.
The Committee concluded that this was a function of the Department of
Corrections and therefore, the court should not be involved in this issue. It was noted that
any medical information that the court has will be included in the PSI. The Committee
was informed that the DOC has periodic meetings with the County Jail Warden’s
Association. The Committee will refer this matter to be considered by the DOC and the
County Jail Warden’s Association.
A. Recommendation
RECOMMENDATION 1: The Committee will refer this matter to be considered by the
DOC and the County Jail Warden’s Association.
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ATTACHMENT A
Copy of Adult Presentence Report
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100
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102
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4. Ex Parte Post-Trial Communications between Judges and Jurors
I. Background
In a letter dated August 18, 2006, an attorney requested that the Administrative
Director of the Administrative Office of the Courts enact a rule or policy prohibiting all
ex parte, post-trial communications between judges and jurors. The Administrative
Director asked the Criminal Practice Committee and the Civil Practice Committee to
consider this matter.14 At the September 20, 2006 meeting, the Criminal Practice
Committee voted that post-verdict, ex parte communications between judges and juries
should be permitted when the interviews are conducted on the record. The Committee
also voted that there should be a per se prohibition against post-verdict, ex parte
communications between judges and juries when the interviews are unrecorded.
A Subcommittee was formed to examine how judges throughout the state and in
other jurisdictions handle post-verdict discussions, and to explore whether any verdicts
have been compromised due to ex parte, post-trial conversations.
On September 21, 2006, the day after Criminal Practice Committee’s meeting, the
Appellate Division decided State v. Walkings.15 In Walkings, after the jury rendered its
verdict, the judge engaged in an ex parte, unrecorded conversation with a juror regarding
the jury’s deliberations. The Appellate Division stated that it saw “no principled reason
for permitting ex parte communications concerning the jury’s deliberations once a verdict
14
The Civil Practice Committee is considering this matter separately.
15
State v. Walkings, 388 N.J. Super. 149 (App. Div. 2006).
106
has been rendered and the jury discharged.”16 The court added that “no communication
should have taken place without the defendant having been given notice of and an
opportunity to be heard and to be present at any such communication between the judge
and juror.”17 In light of Walkings, the Criminal Practice Committee considered whether
there was still a need for a Subcommittee to examine ex parte, post-verdict
communications.
The Criminal Practice Committee was divided on whether there should be a
prohibition against all ex parte, post-verdict communications between judges and jurors
or if this practice should be permitted either with or without procedural guidelines. The
Criminal Practice Committee decided that the Subcommittee should continue examining
ex parte communications, including whether the practice should be continued, and if so,
the permissible scope of those communications. The Ex Parte Communications
Subcommittee conducted an informal survey on the practice of conducting post-verdict
discussions across the state. The survey revealed that this practice varied in different
counties, and even among judges within the same county. For instance, some judges
indicated that they never speak to jurors after the verdict. Some judges thank the jurors
after the verdict, but do not engage in further communications. Other judges conduct
post-verdict conversations to thank the jurors for their service, and answer questions
about jury service, court improvements and matters of public knowledge. The majority
16
Id. at 157-159.
17
Id. at 159.
107
of judges who conduct post-verdict conversations do so off-the-record and the attorneys
are not present.
The Conference of Criminal Presiding Judges considered this issue also, and the
Presiding Judges expressed different views on conducting post-verdict discussions. The
Conference concluded that since the practice varied across the state, there was no need
for a court rule to be adopted. Rather, the decision to conduct the post-verdict
discussions should be left to the discretion of the trial judge.
The Ex Parte Communications Subcommittee met and discussed these issues. The
Subcommittee agreed that there are benefits to conducting post-verdict discussions
between judges and juries and that standards should be developed for such discussions.
The Subcommittee agreed that judges should not offer an opinion about the jury’s verdict
and that the post-verdict discussions should not include matters related to the jury’s
deliberations. The Subcommittee was unable to reach a consensus regarding the presence
of counsel during post-verdict discussions, whether the post-verdict discussions should be
held on the record and the ability of counsel to veto a judge’s decision to have post-
verdict discussions with jurors regardless of counsel’s presence. The Subcommittee
referred its conclusions to the full Committee for consideration.
Several members of the Criminal Practice Committee recognized the benefit of
holding post-verdict discussions with jurors to allow judges to express their appreciation
for the jurors’ service and to gather comments related to their experience, such as
potential areas for improvements in the court system. Some judges explained that they
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issue questionnaires as a way to evaluate the jurors’ experience. The Committee was
informed that this practice is consistent with the recommendation of the Council for
Court Excellence that, “[t]rial judges join jurors at the close of a trial in order to
personally and informally thank them for their service to answer questions about the
court and jury systems and to provide assistance for any juror who may have experienced
extreme stress caused by the trial”.18 The Criminal Practice Committee was divided,
however, on whether post-verdict interviews should go beyond “court improvement” and
juror appreciation discussions, and if so, what procedures, if any, should be implemented.
II. Relevant Law
A. What Are Ex Parte Communications?
In Advisory Opinion 01-01, the Arizona Supreme Court Judicial Ethics
Committee explained that Black’s Law Dictionary defines “ex parte” as “actions taken
‘at the instance and for the benefit of one party only, and without notice to, or argument
by, any person adversely interested.’”19 In considering the propriety of post-trial, ex
parte communications between judges and juries, the Arizona Judicial Ethics Committee
18
Council for Court Excellence, “Juries for the Year 2000 and Beyond: Proposals to Improve the Jury Systems in
Washington,” D.C. 73 (1998).
19
Judicial Ethics Advisory Committee, Arizona Supreme Court, Advisory Opinion 01-01, “Contacting or Speaking
with Members of a Discharged Jury” at 2 (Reissued Jan. 22, 2003) (citing Black’s Law Dictionary at 597 (7th ed.
1999)). See Erskine v. Baker, 22 S.W.3d 537, 539 (Tex. App. 2000) (Ex parte communications are "those that
involve fewer than all of the parties who are legally entitled to be present during the discussion of any matter. They
are barred in order to ensure that every person who is legally interested in a proceeding [is given the] full right to be
heard according to law." The principle underlying the prohibition against ex parte communications for matters
pending in the judicial system is that the disposition of judicial matters is the public's business and ought to be
conducted in public in open court).
109
reached the initial conclusion that under a strict interpretation, “statements made by
jurors in post-verdict discussions are not ex parte communications.”20
Nonetheless, the Arizona Judicial Ethics Committee further stated that “[t]o the
extent that [the post-verdict discussions] contain information that may advantage or
disadvantage one of the parties, . . . they should be treated in the same matter as ex parte
communications.” Recognizing that “[t]he purpose of the prohibition against ex parte
communications is to ensure that every party is given the full right to be heard on matters
before the court,” the Arizona Judicial Ethics Committee found that when judges
discuss certain topics with the jury after a verdict is rendered, the Canons of Judicial
Conduct are not violated provided that appropriate safeguards are put in place to protect
the rights of the parties and to prevent prohibited communications.21
B. New Jersey Law
The relevant court rule, R. 1:16-1, provides “except by leave of court granted on
good cause shown, no attorney or party shall directly, or through any investigator or other
person acting for the attorney interview, examine, or question any grand or petit juror
with respect to any matter relating to the case.” The rule prohibits others from talking to
the jury but is silent about judges. Canon 3A(6) of the Code of Judicial Conduct
addresses ex parte communications by judges concerning a pending or impending
proceeding. It states:
20
Judicial Ethics Advisory Committee, Arizona Supreme Court, Advisory Opinion 01-01, “Contacting or Speaking
with Members of a Discharged Jury” at 2 (Reissued Jan. 22, 2003).
21
Id. at 2.
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A judge should accord to every person who is legally
interested in a proceeding, or that person's lawyer, full right to
be heard according to law, and, except as authorized by law,
neither initiate nor consider ex parte or other communications
concerning a pending or impending proceeding. A judge,
however, may obtain the advice of a disinterested expert on
the law applicable to or the subject matter of a proceeding if
the judge gives notice to the parties of the person to be
consulted and the nature of the advice, and affords the parties
reasonable opportunity to participate and to respond.22
Nearly all of the cases in New Jersey address the issue of ex parte communications
during deliberations or post-trial communications about deliberations. The majority of
cases in this state have admonished ex parte communications between a judge and a
deliberating jury or communications regarding the jury’s deliberations either before or
after the jury has been discharged. See e.g., The Matter of Wilbur H. Mathesius, 188 N.J.
496 (2006) (trial judge violated certain Canons of the Code of Judicial Conduct by
reportedly, “entered the jury room upset and frustrated” and asked the jurors, “what the
hell” were they thinking); State v. Athorn, 46 N.J. 247 (1965), cert. denied, 384 U.S. 962,
86 S.Ct. 1589, 16 L.Ed. 2d 674 (1966) (calling back jurors for interrogation about their
deliberations after they have been discharged is an extraordinary procedure which should
be invoked only upon a strong showing that a litigant may have been harmed by jury
misconduct); State v. Walkings, 388 N.J. Super. 149 (App. Div. 2006) (the trial judge
interviewed a juror about jury deliberations after the verdict and the Appellate Division
22
The Commentary to this Canon states: “The proscription against communications concerning a proceeding
includes communications from lawyers, law teachers, and other persons who are participants in the proceeding,
except to the limited extent permitted. It does not preclude a judge from consulting with other judges, or with court
personnel whose function is to aid the judge in carrying out adjudicative responsibilities.”
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remanded the matter for creation of a record that would disclose all communications
between the juror and the judge); State v. Basit, 378 N.J. Super. 125 (App. Div. 2005)
(where the judge entered the jury room to answer two questions posed by the jury during
deliberations and the Appellate Division ordered a new trial stating that ex parte
communications with the jury regarding its deliberations are barred); State v. Brown, 275
N.J. Super. 329 (App. Div. 1994), certif. denied, 138 N.J. 269 (1994) (where the court
held that it was improper for the trial judge to answer a jury question by entering the jury
room while the jury was deliberating without the presence of counsel and defendant).
B. Law In Other Jurisdictions
Like New Jersey, other jurisdictions have prohibited post-trial, ex parte
discussions regarding jury deliberations. See People v. Delgado, 5 Cal. 4th 312, (1993)
(where the trial judge engaged in a conversation with the jurors outside of the presence of
counsel during jury deliberations in response to a question by a juror, the California
Supreme Court stated “the trial judge should have declined to answer the juror’s question,
immediately terminated all discussion, and reminded the jury that any questions of law on
which they desired guidance must be in writing”); State v. Hilliard, 133 Ariz. 364 (App.
Div. 1982) (where the trial judge went into the jury room and had an off-the-record
discussion with the jury while they were deliberating and the Arizona Court of Appeals
held that it was reversible error for the judge to enter the jury room after the jury had
retired to deliberate regardless of the content of the communications). With regard to
post-verdict communications that do not involve jury deliberations, in an advisory
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opinion, the Arizona Supreme Court Judicial Ethics Advisory Committee interpreted a
Canon of Judicial Conduct that is identical to Canon 3A(6) in the New Jersey Code of
Judicial Conduct and stated that discussing certain topics of public record after a verdict
has been returned and the jury has been discharged may not violate the Canons of
Judicial Conduct, provided that appropriate safeguards are put in place to protect the
rights of the parties and to prevent prohibited communications.23
The Arizona Judicial Ethics Committee set forth the following procedure for
courts to follow when engaged in post-verdict contact with jurors:
1. “[C]ounsel for all parties should be informed of the judge’s intention
to meet with the jurors and given an opportunity to be present, or to
request that the meeting be on the record, or both.”
2. “[T]he judge must admonish the jurors before the meeting that he or
she cannot answer questions regarding matters still pending (such as
sentencing) and must prohibit any statements on such matters. . . .
This does not preclude the judge from giving a general explanation
of the sentencing process in criminal cases and the range of
sentences applicable to the defendant. However, the discussion may
not include the jurors’ opinions or recommendations as to the
sentence the judge should impose in a specific case. “
3. “[T]he judge must also expressly and firmly prohibit any discussion
of the jury’s deliberations. . . . Such a topic is rife with opportunities
for disclosures that may provide grounds for a new trial. Unless the
prohibition is clearly understood and enforced, the judge is placing
himself or herself in a position where prohibited communications
must be anticipated. This alone may undermine public confidence in
the fairness of the proceedings.”
23
Judicial Ethics Advisory Committee, Arizona Supreme Court, Advisory Opinion 01-01, “Contacting or Speaking
with Members of a Discharged Jury” at 3 (Reissued Jan. 22, 2003). As set forth above, Canon 3A(6) of the New
Jersey Code of Judicial Conduct states, in pertinent part: “A judge should accord to every person who is legally
interested in a proceeding, or that person's lawyer, full right to be heard according to law, and, except as authorized
by law, neither initiate nor consider ex parte or other communications concerning a pending or impending
proceeding.”
113
The Arizona Judicial Ethics Committee went on to explain that notwithstanding
the judge’s admonition and establishment of clear parameters for the post-verdict
discussion, there is a possibility that a juror may volunteer information that a judge would
be prohibited from hearing outside the presence of the parties, if at all. The Arizona
Judicial Ethics Committee stated that this information should be treated like any other
unsolicited communication to the judge. It must be promptly disclosed to all parties on
the record, and they must be given an opportunity to be heard on the matter. Depending
on the circumstances of the case and the content of the communication, the judge may be
required to disqualify himself or herself. However, the possibility of this occurrence
should not preclude a dialogue that is otherwise permissible under the canons with
appropriate safeguards in place.
Finally, Part IV of the American Bar Association (ABA) Criminal Justice
Standards addresses Judicial Relations with the Jury. In particular, ABA Criminal Justice
Standard 15-4.3 addresses Judicial Communication with Jurors and provides that after the
conclusion of trial and the completion of the jurors’ service, the court may engage in
discussions with the jurors, as long as the discussions occur on the record and in open
court with counsel having the opportunity to be present.24
24
ABA Criminal Justice Section Discovery and Trial By Jury Standards (Standard 15-4.3, “Judicial Communication
with Jurors”) (3d ed. 1996).
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IV. Benefits Of Post-Verdict Interviews With Jurors
The Committee discussed several benefits from conducting post-verdict
discussions with jurors. First, these informal post-verdict discussions give judges the
opportunity to informally and personally thank members of the jury for their service.
This may provide useful and appropriate information about ways to improve the jury
service experience. Many judges on the Committee who have spoken to jurors after the
verdict confirmed how appreciative jurors are when a judge informally and personally
thanked them for their service. Most Criminal Division judges who adopt this practice
expressed that that it is a satisfying and uplifting experience.
Second, post-verdict discussions may help to ease the jurors’ uncertainties about
their service and their verdict. It was pointed out that a common question during post-
verdict discussions concerns the publication of the jurors’ names as part of jury selection.
Judges are able to inform jurors of why their names are made public and ease concerns
surrounding the possibility of retaliation by a defendant, by explaining the unlikelihood
of retaliation and the severe penalties if such retaliation occurs. Also, some members
noted that post-verdict discussions assist in avoiding juror contact with individuals
involved in the trial and members of the press, as they occur while others are leaving the
courthouse.
Third, frequently the post-verdict discussions address questions about matters of
public record. For instance, jurors often ask if a defendant has a criminal record, if a
defendant has pending charges, when a defendant will be sentenced or what is the
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sentencing range. Some members expressed the view that the court should be able to
explain matters of public record, because they do not involve the merits of an issue that
has not yet been decided. These members stated that but for their selection to the jury,
individual jurors could have attended any hearings in the case and would have been privy
to any matters discussed in open court, such as discovery hearings and evidentiary
motions, from which they were sequestered while serving on the jury. By responding to
questions regarding matters discussed in open court, the judge is simply providing
information that is a matter of public record.
V. Criticisms Of Post-Verdict Ex Parte Discussions Between Judges And
Juries
The Committee also discussed concerns with permitting post-verdict discussions
between judges and jurors. First, some members expressed the view that these
conversations may lead to jurors being tainted in the future. Second, some members
explained that the prosecutors and defense counsel would like to be present to speak with
jurors after the verdict is rendered to learn about the jurors thoughts on counsel’s
performance or the evidence. Some members opposed permitting judges to speak to
jurors without involvement of counsel. Others were concerned that if counsel were
present, they would remain in an adversarial role and may lodge objections or ask
questions, which would defeat the purpose of the informal discussions by creating a
“chilling effect” on the discussions. Additionally, by raising objections, counsel could
turn an innocuous issue into an adversarial one.
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Third, another concern raised involved the possibility of a juror stating something
that may lead the judge to conclude that there has been possible jury misconduct. If this
occurred the matter must be disclosed, investigated and may lead to a mistrial. Some
members disputed this concern asserting that it would be better for the trial judge to be
made aware of possible jury misconduct rather than for these concerns to go unanswered
or be revealed as a basis for an appeal or a petition for post-conviction relief.
The Committee voted and reached the following determination: eight members
were in favor of a per se prohibition on post-verdict discussions between judges and
juries in criminal cases; six members were in favor of permitting post-verdict discussions
between judges and juries in criminal cases if the discussion took place on the record;
eight members were in favor of permitting post-verdict discussions between judges and
juries in criminal cases with procedures left to the sound discretion of the trial judge,
without the Committee recommending a rule to address this issue.
VI. Recommendation
After further consideration, the Committee voted and reached the following
determination: 14 members were in favor of a per se prohibition on post-verdict
discussions between judges and juries in criminal cases; 2 members were in favor of
permitting post-verdict discussions between judges and juries in criminal cases if the
discussion took place on the record; 4 members were in favor of permitting post-verdict
discussions between judges and juries in criminal cases with procedures left to the sound
117
discretion of the trial judge, without the Committee recommending a rule to address this
issue.
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5. Transmission of Discovery in Criminal Cases
The Criminal Practice Committee and the Conference of Criminal Presiding
Judges have been concerned about the increasingly serious problems created by the
various and often incompatible, means of recording and distributing discovery. The
problem involves both software and hardware, and is not just limited to defense counsel
being able to read or see what is provided by prosecutors. Sometimes equipment used by
police departments is not compatible with the equipment prosecutor’s use. Additionally,
when a private entity uses surveillance video, prosecutors often have problems replicating
the video.
The Criminal Practice Committee has recommended the formation of a special
committee or task force to address this issue, because this problem is beyond the scope of
any existing Supreme Court Committee or working group. It recommended that either
the Administrative Director of the Courts or the Chief Justice establish a special
committee charged with making recommendations regarding discovery in criminal cases.
The Criminal Practice Committee recommended that the special committee should
include Superior and Municipal Court Judges, members of the Criminal and Municipal
Practice Committees, representatives of the Attorney General’s Office, the State Police
and Association of Police Chiefs, the Public Defender, private defense counsel and IT
personnel.
119
C. Matters Previously Sent to the Supreme Court
1. Bail Source/Sufficiency Hearings; Implementation of N.J.S.A. 2A:162-13 R.
3:26-1 and new R. 3:26-8
In the previous rules cycle, the Supreme Court amended R. 3:26-1 to adopt a new
paragraph (c), which requires defendants admitted to bail who are charged with crimes to
which the bail restrictions set forth in N.J.S.A. 2A:162-12 apply to provide the Attorney
General with information required by the statute. The Court also adopted new R. 3:26-8
to implement N.J.S.A. 2A:162-13, which authorizes the court, on the prosecutor’s request
to hold a hearing, subject to the terms and conditions stated in the rule regarding the
source of bail funds and the identity and reliability of the surety.
The Court approved the rule proposals to implement N.J.S.A. 2A:162-13 during
the 2006-2008 rules cycle. The amendments to R. 3:26-1(c) and new R. 3:26-8 were
effective September 1, 2008.
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2. Follow-Up Report On The Implementation Of The Recordation Of Custodial
Interrogations
In State v. Thomahl Cook, 179 N.J. 533 (2004), the New Jersey Supreme Court
called for a careful and deliberate study to evaluate the protections that electronic
recordation of custodial interrogations affords both the State and criminal defendants. Id.
at 562. Following State v. Cook, the Chief Justice appointed the Special Committee on
the Recordation of Custodial Interrogations to make recommendations on the use of
electronic recordation of custodial interrogations. On April 15, 2005, the Special
Committee submitted its report to the Supreme Court. The report, as posted at
http://www.judiciary.state.nj.us/notices/reports/cookreport.pdf recommended that
electronic recordation of custodial interrogations should be required in certain cases. The
report also recommended that “the Supreme Court…periodically review the
implementation of the recording requirement” (Recommendation 9).
On October 14, 2005, the Supreme Court issued an Administrative Determination
regarding the Report of the Special Committee on the Recordation of Custodial
Interrogations. In that Administrative Determination, the Court required that effective
January 1, 2006, custodial interrogations in homicide cases were to be electronically
recorded. Furthermore, effective January 1, 2007, the recordation requirement would
apply to all other offenses specified in R. 3:17(a). The Court also asked that the
Administrative Director of the Courts and the Criminal Practice Committee work with the
Office of the Attorney General and the County Prosecutors to review the implementation
of the recordation requirement, and that a status report be filed by June 1, 2007.
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To meet this last requirement, the Criminal Practice Committee and the
Conference of Criminal Presiding Judges recommended adoption of the Recordation of
Custodial Interrogations Reporting Form, for use in cases where: (1) the defendant was
charged with murder, aggravated manslaughter or manslaughter; and (2) the offense
occurred on or after January 1, 2006; and (3) the defendant was tried or the State filed a
notice of intent to rely on an unrecorded statement claiming an exception to the recording
requirement, and the court made a ruling thereon. That form was promulgated on July
18, 2006, via Directive #11-06. The Criminal Practice Committee subsequently
developed a revised form in order to collect data in the additional cases for which
recordation would be required as of January 1, 2007. That form was promulgated on
December 22, 2006, via Directive #22-06. Both directives require that trial judges
complete the forms and forward them to the Administrative Office of the Courts (AOC),
Criminal Practice Division. In addition, the Division of Criminal Justice created a
separate form for use by prosecutors.
On May 30, 2007, the Administrative Director filed the Report on the
Implementation of the Requirement for Recordation of Custodial Interrogations with the
Supreme Court. The report noted that as of May 1, 2007, the Criminal Practice Division
had not received any completed Recordation of Custodial Interrogations Reporting
Forms, because no cases had met the criteria that triggered completion of the AOC’s
form. In other words, no homicide cases occurring on or after January 1, 2006 had gone
to trial, and in no case had a judge ruled on the State’s intent to rely on an unrecorded
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statement that the State claimed was an exception to the recording requirement. The
Attorney General’s Office, however, had received forms in 111 cases homicide cases that
occurred on or after January 1, 2006. In only three of those 111 cases were the custodial
interrogations not recorded, and all three cases fell under one of the exceptions to the
recording requirement. In two cases, the defendants made spontaneous statements; while
the third case involved a juvenile who was not a suspect at the time of the interrogation.
It was therefore clear that law enforcement was in complete compliance with the
recordation requirement.
The Criminal Practice Committee subsequently recommended that recordation
continue to be monitored in order to examine law enforcement’s compliance with the
requirement in non-homicide cases. After reviewing the form submissions the
Committee is confident that, based on the available information, law enforcement has
been making every effort to comply with the recordation requirement. Although the
information that we have received is admittedly limited, we are not aware of any
difficulties or issues pertaining to recordation that would cause us to question that
conclusion. As a result, the Committee forwarded the follow-up report on the
Implementation of the Recordation of Custodial Interrogations, dated October 21, 2008,
to the Acting Administrative Director of the Courts with a recommendation that there is
no longer a need to continue monitoring law enforcement’s compliance with the
recordation requirement, and that such monitoring should immediately cease.
123
D. Rule Proposals and Other Issues Considered and Rejected
1. Alibi Rule – State v. Bradshaw - R. 3:12-2
The Committee considered whether a rule amendment was necessary in light of
the Appellate Division decision in State v. Bradshaw, 392 N.J. Super. 425 (App. Div.
2007), aff’d on other grounds and remanded, 195 N.J 493 (2008), where the Appellate
Division held that the alibi notice requirements in R. 3:12-2 were unconstitutional as
applied to a defendant’s own testimony concerning his whereabouts at the time of the
alleged crime. The Supreme Court granted certification and declined to address the
constitutional issue finding that it was not necessary to resolve the appeal. Rather, the
Court interpreted R. 3:12-2 to “mean that only in the rarest of circumstances should the
‘interest of justice standard’ result in a prohibition of a defendant’s own alibi testimony
as an appropriate sanction.” State v. Bradshaw, 195 N.J. at 507. The Committee
discussed whether it is still necessary to consider an amendment to R. 3:12-2 in light of
the Supreme Court decision and determined that no rule change is necessary.
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2. Bail Forfeiture Rule – R. 3:26-6
In letters dated June 14, 2007 and July 18, 2007, a private attorney requested that
the Acting Administrative Director propose an amendment to R. 3:26-6, which addresses
bail forfeiture procedures. The attorney raised an issue that once a judgment has been
entered and a preclusion notice is sent by the superior Court Clerk’s office to the surety,
the Clerk will not stay the preclusion process despite the fact that the surety and county
counsel have entered into a consent agreement which will be submitted to the Superior
Court for approval. The attorney suggested amending R. 3:26-6 to address this concern.
The Committee considered a proposed amendment to R. 3:26-6 to specifically provide
for the automatic stay of a surety’s obligation to satisfy in full the default judgment upon
the filing of a motion seeking an order setting aside the forfeiture or default judgment.
The Committee referred the matter to the Bail Judge Subcommittee, which
reviewed and discussed the matter at its March 27, 2008 meeting. Assignment Judge
Donald Volkert, former chair of the Bail Judge Subcommittee, provided a letter response
to the Committee explaining that upon becoming aware of this issue, the Superior Court
Clerk’s Office changed the procedures whereby a consent agreement signed by the
parties would stay preclusion procedures. After thirty days, the Clerk’s Office makes
follow up contact with the parties to ensure that the consent order has been approved by
the judge. The Bail Judge Subcommittee view was that this change in procedures by the
Clerk’s Office resolves the issue raised by the private attorney. The Bail Judges decided
to take no further action and recommended that the Committee not amend the R. 3:26-6.
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The Committee agreed with the recommendation from the Bail Judge Subcommittee that
no rule change is necessary.
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3. Electronic Recordation of Custodial Interrogations – R. 3:17
Currently, R. 3:17(a) states that unless an exception applies, custodial
interrogations conducted in a place of detention must be electronically recorded when a
person is charged with certain offenses. A question has arisen as to whether the “charged
with” language in R. 3:17(a) creates confusion as to the “start time” of the recordation.
The concern is that the current wording of R. 3:17(a) could be interpreted as requiring
recordation only after a person has actually been charged with one of the applicable
crimes.
The purpose of the rule, which was recommended in the Report of the Supreme
Court Special Committee on Recordation of Custodial Interrogations, and in light of State
v. Cook, 179 N.J. 533 (2004), was to cover all aspects of the interrogation, not just those
when a defendant is formally charged with the covered offense. In recommending that
the Court adopt R. 3:17, the Special Committee on the Recordation of Custodial
Interrogations clearly intended that the entire interrogation be recorded, beginning at the
point at which Miranda warnings must be given:
The Committee recommends that electronic recording occur when a
custodial interrogation is conducted in a place of detention. The
Committee further recommends that the recording be “stem-to-
stern”, i.e. the entire interrogation must be recorded, rather than
just the final statement. Requiring stem-to-stern recordation is . . .
essential if the benefits attendant to electronic recordation are to be
fully realized. Recording should begin at, and include, the point at
which Miranda warnings are required to be given. [See Report of
the Special Supreme Court Committee on Recordation of Custodial
Interrogations at 37 (April 15, 2005)]
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Moreover, Recommendation 3 of the Report of the Supreme Court Special
Committee on Recordation of Custodial Interrogations was adopted by the Supreme
Court in its Administrative Determination dated October 14, 2005. Recommendation 3
states: “Electronic Recording should occur when a custodial interrogation is being
conducted in a place of detention and should be begin at, and include, the point at which
Miranda warnings are given.”
A representative from the Attorney General’s office explained that the rule need
not be amended because there is no confusion with regard to the start time of the
recordation. The Committee agreed that no rule change is necessary.
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4. Hypnotically Refreshed Testimony – State v. Moore
In State v. Moore, 188 N.J. 182 (2006), the New Jersey Supreme Court held that
the hypnotically refreshed testimony of a witness in a criminal trial was generally
inadmissible, and that State v. Hurd, 86 N.J. 525 (1981), should no longer be followed in
New Jersey. In State v. Hurd, the Court established guidelines for the admissibility of
hypnotically refreshed testimony proffered by a witness in a criminal trial.
In Moore, the Court further held that, based upon Rock v. Arkansas, 483 U.S. 44,
107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), which held that a defendant could not be denied
his constitutional right to testify because of a state rule that excluded post-hypnotic
testimony, a defendant may testify at his own trial after having been hypnotized. The
Court requested that the Committee consider and recommend improvements to both the
Hurd Guidelines and the Fertig (Hypnotically Refreshed Testimony) model jury charge.
The Attorney General’s Office conducted a survey on the use of a defendant’s
hypnotically refreshed testimony in criminal cases. The survey revealed that the use of a
defendant’s hypnotically refreshed testimony has arisen in very few cases.
Representatives from the Office of the Public Defender agreed that the use of a
defendant’s hypnotically refreshed testimony arises rarely. The Committee reached the
consensus that because this issue arises on rare occasions, there is no need develop a
procedure or to propose a rule to address the use of a defendant’s hypnotically refreshed
testimony in criminal cases at the present time.
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5. State v. Luna – R. 3:20-2 - Defendant’s Waiver of Presence at Trial
In State v. Luna, 193 N.J. 202 (2007) the Court held that when the trial court has
actual knowledge, before or during trial, that a defendant is incarcerated and thus unable
to appear at trial, the court must conduct an inquiry before proceeding with trial to
determine if defendant’s absence is knowing and voluntary. The Court further held that
when the defendant’s incarceration first comes to light after trial, the defendant may bring
a post-trial motion, pursuant to R. 3:20-2, for a new trial. At the post-trial hearing the
defendant bears the burden to show that the failure to attend trial was due to incarceration
and there was no ability or means to advise his or her attorney or the court, directly or
indirectly, of this fact. After giving the State the opportunity to respond, the court must
determine if the defendant’s absence was voluntary. The Court rejected the defendant’s
request for the Court to adopt formal guidelines for use by trial judges after finding a
waiver or to adopt a rule requiring judges to evaluate certain factors in all cases. The
Court determined that trial judges have the discretion in deciding whether to start a trial
when a defendant is inexcusably absent.
R. 3:20-2 currently provides: “[a] motion for a new trial based on a claim that the
defendant did not waive his or her appearance for trial shall be made prior to sentencing.”
The Committee determined that R. 3:20-2 need not be amended in light of Luna to permit
a defendant to file a post-trial motion for a new trial. While the Committee did not
recommend a rule amendment, it agreed that absent extraordinary circumstances,
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defendants should not be tried in absentia if they are incarcerated before they can be
produced for trial.
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6. State v. McAllister
This is a matter held for future consideration from the 2004-2007 term. In State v.
McAllister, 184 N.J. 17, 22 (2005), the defendant was convicted at a jury trial of forgery
and theft. The State had alleged that, while employed as a caretaker for an elderly
couple, she was forging their checks and stealing from their bank accounts. The
investigation had begun when the couple received their own canceled checks, which they
had not written, that had been endorsed by “McAllister” and marked with an account
number. The Prosecutor’s Office thereafter sent a Grand Jury subpoena to the
defendant’s bank and received records showing that the defendant had deposited monies
from the couple’s account into hers. Id. at 20-21
Prior to trial, the defendant filed a motion to suppress the bank records and argued
that a Grand Jury subpoena was insufficient to obtain the records, which was denied.
After a jury trial, the defendant was convicted of forgery and theft.
On appeal, defendant reasserted her argument that bank records must be obtained
via a search warrant, with a probable cause standard. In the alternative, the defendant
argued that she should have been notified of the subpoena so that she could have moved
to quash the subpoena. Id. at 22.
The State argued that no other state requires a probable cause standard and urged
the Court “to reaffirm the preexisting standard applicable to grand jury subpoenas duces
tecum—that documents requested are relevant to the grand jury’s investigation.” The
State further argued that notice to the subject that his or her bank records are being sought
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during a criminal investigation “would violate grand jury secrecy and play havoc with the
grand jury’s investigative function.” Id. at 23-24.
The New Jersey Supreme Court held that, under the New Jersey Constitution,
account holders do have a reasonable expectation of privacy in their bank records. Id. at
32-33. The Court stated that there are circumstances that will arise that will justify state
intrusion on that interest. Id. at 33. The Court rejected the defendant’s argument that
account holders should receive notice of the subpoena. The Court held that, “[s]imply
stated, because providing notice to every account holder whose bank records are
subpoenaed may unduly impair the grand jury's ability to investigate, the legitimate needs
of law enforcement warrant a workable and practical exception.” Id. at 38. The Court
noted investigations concerning money laundering, identity theft, insurance fraud, and
terrorist activity as examples of the importance of the Grand Jury obtaining such records
in secrecy. Ibid.
The Court further rejected imposing a standard of probable cause and reaffirmed
the standard of relevance. The Court noted In re Addonizio, 53 N.J. 107 (1968), where it
had held that “grand juries have never been bound only to investigate charges that were
already supported by probable cause. State v. McAllister, 184 N.J. at 34-36. The Court
affirmed the defendant’s conviction. It also referred “this issue to the Criminal Practice
Committee for further study of the benefits and burdens of enhanced protections for bank
records” and “the need, if any, for additional grand jury procedures.” Id. at 42-43
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The Criminal Practice Committee formed a Subcommittee, which informally
surveyed prosecutors and defense counsel as to the handling of bank records in both the
state and federal systems.
In the state system, the prosecutor obtains records as set forth in State v.
McAllister. If the defendant is indicted, the records are released as part of the discovery.
If the defendant has never been arrested, and is not indicted, the prosecutor closes the file
and no notice is given to the target of the investigation. This file may be closed
permanently, or the prosecutor may conclude that the file should be closed pending
further evidence that may develop in the future.
In the federal system, when a prosecutor initiates a Grand Jury investigation, the
prosecutor sends a Federal Criminal Rule 6(e) letter to the judge who is assigned to the
Grand Jury. A 6(e) letter is sent to the judge in all cases, including those cases involving
the subpoena of bank records, to advise the judge that the federal prosecutor is opening
an investigation. Grand Jury subpoenas issued during the investigation are exempted
from notice requirements under the Federal Right to Financial Privacy Act. 12 U.S.C. §
3420.
The Subcommittee reached a consensus that the procedures enumerated in State v.
McAllister strike a fair balance between an account holder’s right to privacy and the
legitimate needs of law enforcement to investigate alleged criminal activity. The
Subcommittee discussed its conclusions with the full Committee. The Committee agreed
with the Supreme Court’s conclusion that relevance is an appropriate standard for a
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Grand Jury subpoena. The Committee further agreed that notice of the subpoena to an
account holder could cause that target to flee and/or remove funds from the account, and
could otherwise thwart or destroy an investigation.
The Committee ultimately concluded that no further recommendations need be
made to the Supreme Court in this area.
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7. Conditional Discharge Appeals – R. 3:23-2
In its 2004-2007 Report, upon request of the Municipal Court Practice Committee,
the Committee proposed amendments to R. 3:23-2 that would: (1) permit a defendant
who has been granted a conditional discharge, pursuant to N.J.S.A. 2C:36A-1, following
the denial of a motion to suppress evidence to appeal the denial; (2) change the word
“clerk” to “court administrator”; and (3) distinguish separate appeals by the defendant
from appeals by the State. The reason for the first proposal was that pursuant to N.J.S.A.
2C:36A-1, a defendant who enters a guilty plea as part of a conditional discharge also
receives a driver’s license suspension and there is no mechanism to appeal from the
denial of the motion to suppress, a process that is not currently provided for in the court
rules because no judgment of conviction is entered. Other defendants who do not enter a
guilty plea as part of conditional discharge do not receive a driver’s license suspension.
With regard to the first rule proposal, during the 2004-2007 term, the Court asked
for further research as to how appeals of motions to suppress are handled when a
defendant is entered into Pretrial Intervention and a driver’s license suspension or
professional license suspension is ordered. As a result, the Committee continued to
review this matter.
Thereafter, on April 17, 2007, the Appellate Division issued State v. Thomas, 392
N.J. Super. 169 (App. Div. 2007), which held that the trial court erred by imposing a
lower sentence than that negotiated between the State and N.J.S.A. 2C:35-12, based on
the court's belief that the agreement violated defendant's constitutional rights because it
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imposed a greater sentence after the defendant invoked his right to a suppression hearing.
In Thomas, the defendant was charged with possession of a controlled dangerous
substance in a school zone. Pursuant to Brimage Guidelines, the State calculated the
following pleas for the three categories: four years of prison, with two years of parole
ineligibility for the pre-indictment offer; five years of prison, with thirty months of parole
ineligibility for the initial post-indictment offer; and five years of prison with thirty-three
months of parole ineligibility for the final post-indictment offer. Id. at 179. The
defendant filed a motion to suppress, which was denied and thereafter entered a guilty
plea which called for a sentence of five years imprisonment with thirty-three months of
parole ineligibility. At sentencing the trial court imposed a sentence of five years of
prison, with thirty months of parole ineligibility (as opposed to the thirty-three months of
parole ineligibility), “because that was the maximum offer the State could have made
under the Guidelines if defendant had not moved to suppress.” The trial court opined that
to do otherwise would “penalize defendant for exercising his constitutional right to a
suppression hearing.” Id. at 180.
The Appellate Division disagreed with the trial court’s conclusion and held:
[a]lthough it is true that plea agreements are
unacceptable if based on an illegal term or condition,
we disagree with the proposition that an agreement to
forego filing a motion to suppress constitutes such an
illegal term or condition. The prosecutor's offer of a
harsher sentence because defendant filed a motion
cannot be deemed to have violated any of his rights.”
[Id. at 180 (citing Pressler, Current N.J. Court Rules,
comment 4.3 on R. 3:9-3 at 822 (2007))].
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The Committee determined that Thomas case was dispositive of this issue
regarding appeals of motions to suppress in conditional discharge cases, because the
Appellate Division essentially held that the inability to file a motion to suppress is not an
illegal term or condition of a plea. Thus, from the Committee’s perspective, it follows
that the inability to appeal the denial of a motion to suppress would not be an illegal
condition of a plea. Thus, in the Committee’s view, no rule amendments were necessary.
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8. State v. Kent
This matter was discussed during the prior term after the Committee’s report was
filed. In State v. Kent, 391 N.J. Super. 352 (App. Div. 2007) the Appellate Division held
that the Confrontation Clause of the Federal Constitution and the testimonial/non-
testimonial standards of admissibility set forth in Crawford v. Washington, 541 U.S. 36,
124 S. Ct. 1354, 158 L.Ed.2d 177 (2004) apply to drunk driving prosecutions in
municipal court. It asked the Legislature, the Criminal Practice Committee and the
Municipal Court Practice Committee to:
consider the adoption of statutes or court rules patterned after
N.J.S.A. 2C:35-19 that would create similar notice-demand
requirements for State Police lab reports used in DWI trials
and also for blood sample certificates generated under
N.J.S.A. 2A:62A-11. We do not suggest any particular
timelines or procedures for such notice-demand provisions,
but instead defer to the prospective development of
appropriate measures through such rule-making or
legislation.”
[State v. Kent, 391 N.J. Super. at 382.]
The Kent court also asked that the Legislature and Committees “explore means of
abating the time and travel burdens upon nurses, chemists and other third-party witnesses
who now will be constitutionally required to travel to municipal court for DWI trials,”
such as “the feasibility of remote video conferences at trials or de bene esse videotaped
depositions, so that such witnesses need not physically appear in municipal courts late at
night and whether the scheduling or venues of DWI trials might be altered to minimize
logistical burdens on medical providers and laboratory personnel, including the creation
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of special daytime court calendars to accommodate such witnesses.” State v. Kent, 391
N.J. Super. at 383.
At the May 2007 meeting, a Joint Municipal/Criminal Subcommittee was formed
to address these issues. On May 16, 2007, the Supreme Court granted certification in
State v. Buda, State v. Berezansky, State v. Sweet, and State in the Interest of J.A., which
addressed similar confrontation issues as those raised in Kent. The Subcommittee
decided to await these rulings to reconvene. In June 2008, the Supreme Court decided
State v. Buda, 195 N.J. 278 (2008); State v. Sweet, 195 N.J. 357 (2008) and State in the
Interest of J.A., 195 N.J. 324 (2008). In State v. Sweet, the Court held that ampoule
testing certificates at issue in State v. Sweet and the breath testing instrument inspection
certificates at issue in State v. Dorman (companion case to Sweet) are hearsay statements,
but are admissible under the business records exception to the hearsay rule codified at
N.J.R.E. 803(c)(6). State v. Sweet, 195 N.J. at 371. The Court concluded that those
records are nontestimonial under Crawford v. Washington and are thus inadmissible
under the Confrontation Clause. State v. Sweet, 195 N.J. at 374. The Committee
determined that in light of these decisions, it need not consider this issue further at this
time.
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E. No Action Necessary
1. Comprehensive Review of Existing Plea Forms
This matter was held over for future consideration from the 2002-2004 term.
During the 2002-2004 term, the Committee considered whether the time had come for a
comprehensive review of the plea forms, including a review of which questions should be
considered relevant. Several members of the Committee felt that the forms were
becoming unmanageable, largely because there were so many of them and they were in
need of nearly constant revision. It was noted, for example, that the plea forms that had
been revised and disseminated in August 2002 were in need of further revision within a
month because of changes in the law.
The Committee also discussed whether several new surcharges should be added to
the forms. One member thought that all substantial collateral consequences, including
surcharges, should be on the forms. However, this was deemed to be impractical, as
there are dozens of State and Federal collateral consequences of a guilty plea; e.g.,
N.J.S.A. 45:15C-6 provides that tree expert certification may be revoked or temporarily
suspended if a person is convicted of a crime. Another member felt that all surcharges
should be removed from the forms. It was also suggested that there be a separate sheet
for all fines or penalties, so that only one form would have to be changed when the law
was revised.
Finally, the Committee agreed that discussions should continue with the
Administrative Office of the Courts about the possibility of computerizing the forms (for
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the relevant information generated by offense and date), and placing them on the
Judiciary’s website.
The Committee could not reach a consensus on the first two issues, and decided to
continue its deliberations on these issues during the next term. Since that time, all
Administrative Directives, including those that promulgated the latest versions of the plea
forms, have been placed on the Judiciary’s website. The Committee has not revisited the
two remaining issues, and will continue to seek computerized forms and judgments
which can be generated for each case individually.
The Committee revisited this matter during the 2007-2009 term and was informed
that all of the all Administrative Directives including those that promulgated the latest
versions of the plea forms have been placed on the Judiciary’s website. The individual
plea forms will be placed on the judiciary website under the FORMS tab. The most
recent plea forms will be posted at http://www.judiciary.state.nj.us/forms.htm
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2. Public Access to Court Records
The Supreme Court Special Committee on Public Access to Court Records,
chaired by Justice Barry Albin, was charged in 2006 to conduct a comprehensive review
of the provisions of R. 1:38, “Confidentiality of Court Records” and to recommend any
changes to the rule necessary to clarify or facilitate the public’s access to court records.
The Committee considered whether it should submit formal comments to the report. A
discussion ensued and the Committee determined that because the membership reflected
various organizations and individuals with differing views, the members should inform
their respective organizations about the report and file comments individually.
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F. Matters Held for Future Consideration
1. Bail Review Procedures
The Chief Justice asked the Committee, the Conference of Criminal Presiding
Judges and the Conference of Municipal Court Presiding Judges to review and provide
recommendations for bail review procedures in light of the Report on Procedures
Following in the Setting and Consolidation of Bail on Charges Filed Against Defendant
Jose Lachira Carranza, issued by retired Judge Arthur D’Italia on August 29, 2007. The
Committee considered whether R. 3:26-2 should be amended and referred the matter to
the Conference of Criminal Presiding Judges for review and comment. If necessary, the
Committee will review this matter further after the Conference of Criminal Presiding
Judges completes its work.
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2. Criminal Defendants and Civil Commitment
The Office of the Attorney General asked the Committee to consider adopting
standard language to notify the criminal court, defense attorney and prosecutor when a
defendant who is in custody awaiting trial or sentencing or who is at the police station
exhibits behavior of mental illness that may lead to civil commitment and the defendant
is transferred to a screening center for an evaluation. It was suggested that the
notification language be included in court orders transferring a defendant out of county
jail and to a screening center to evaluate the defendant’s behavior.25 The reason for this
proposal is because according to the civil commitment laws, if the defendant is in need of
civil commitment and cannot be treated in jail, the law enforcement authority must seek
appropriate treatment for that person. Currently, when a defendant is transferred out of
county jail for an evaluation, notice of the transfer is not given to the judge, defense
attorney or prosecutor in the criminal case. This is primarily because the civil
commitment matter is typically handled by County Counsel, with defense representation
by the Public Advocate, and a screening judge, often a Municipal Court Judge.
If an evaluation reveals a need for civil commitment, the screening judge can issue
a temporary commitment order. While committed, the defendant can be subject to
psychological evaluations in accordance with the civil commitment laws and policies.
25
The commitments at issue fall under R. 4:74-4. The proposal does not address defendants who are civilly
committed after being found not guilty by reason of insanity (NGRI) or defendants who are found incompetent to
stand trial.
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While the defendant is away from jail, the criminal judge, county prosecutor and defense
counsel in the criminal case are not given updates on the defendant’s status.
Specific concerns arise regarding: (1) the lack of notice of the transfer to the court,
the prosecutor and the defendant’s attorney in the criminal case; (2) the inability of the
criminal court and the prosecutor to receive information related to defendant’s
whereabouts and the likely date of release; and (3) the discoverability of information
contained in reports and notes of psychiatric evaluations that may impact the criminal
proceedings. The Committee considered a proposal to include notice to the prosecutor,
defense counsel and the criminal judge when a defendant is transferred out of county jail
to a screening center, Anne Klein or other facility.
The Committee also discussed the confidentiality of records and reports generated
as a result of a civil commitment. Because these records are confidential, they are not
automatically sent to the court, the prosecutor or the defendant’s attorney in the criminal
case. Nonetheless, these records or reports may contain information relevant to the
criminal court proceedings. It was suggested that the confidential records and reports
could only be obtained by a court order for use in the criminal case. The Committee
considered proposed modifications to the detainer to address this issue. The Committee
agreed to refer this matter the Civil Practice Committee with a suggestion to form a Joint
Criminal/Civil Committee to resolve these issues.
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3. Disposition of Municipal Court Matters in Superior Court
The Conference of Criminal Presiding Judges and Municipal Presiding Judges
have been jointly working on an Administrative Directive clarifying a paperwork flow
when Superior Court judges dispose of Municipal matters that accompany indictable
charges, instead of returning the non-indictable matters to the Municipal Court. The
Conference of Criminal Presiding Judges referred this matter to the Criminal Practice
Committee for input from the County Prosecutors’ Association and the Office of the
Public Defender. The Presiding Judges are of the view that there should be a statewide
policy regarding disposition of these matters. Currently, the practice varies from county
to county.
There are several reasons for creating a uniform policy to address the disposition
of municipal court matters in Superior Court. In some counties, all matters, non-
indictable and traffic are sent to the Superior Court with the indictable and are addressed
at the Superior Court level. In other counties, the non-indictable or traffic matter is sent
back to the municipal court for disposition. In still others, the indictable and non-
indictable matters are addressed, but the traffic matters are not addressed but sent back to
the municipal court. All agreed that in order for a uniform Directive to be successfully
implemented, it should set forth a course of action that all interested parties will follow.
The Committee discussed a proposed Directive and determined that this proposal should
be considered by the County Prosecutors’ Association and by the Public Defender for
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their input. The Committee is forwarding this matter to County Prosecutors’ Association
and by the Public Defender’s Office to consider the proposed procedure.
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4. Model Jury Selection Questions for Criminal Cases
Administrative Office of the Courts’ Directive #21-06 (Dec. 11, 2006), as
modified by Directive #4-07 (May 16, 2007) set forth jury selection standards and the
Model Jury Voir Dire questions for criminal and civil cases, that were recommended by
the Special Committee of Peremptory Challenges and Jury Voir Dire, as approved by the
Supreme Court. The Civil Practice Committee is recommending that the Model Jury
Selection Questions for Civil Cases be included in the appendix of the Court Rules. The
Criminal Practice Committee considered whether to make a recommendation to the Court
to include the current Model Jury Selection Questions for Criminal Cases in the appendix
of the court rules.
The Committee discussed whether only the Model Jury voir dire questions should
be included in the appendix of the court rules or if the Directives, in their entirety, should
be included in the appendix of the court rules. Some members were of the view that it
would be best to include the Directives in their entirety, because they containing the
Model Jury questions, along with necessary explanations for the questions.
The Committee believes that the procedures set forth in Directive #21-06 and
Directive #4-07 contain valuable information to accompany the Model Jury voir dire
questions. The Committee determined that both Directives should be included in the
appendix of the Court Rules. During the term, the Committee was informed that the
Special Committee on Peremptory Challenges and Jury Voir Dire was considering
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possible revisions to the Directives. The Committee will revisit this proposal after the
Special Committee on Peremptory Challenges and Jury Voir Dire completes its work.
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5. Municipal Appeals
The Committee was asked to consider a recommendation that R. 3:23-3 should be
amended to require that a notice of appeal from a judgment or order entered by a
Municipal Court state the grounds for the appeal. A member of the Committee explained
that the court has the discretion to order the parties to file briefs, and judges could do so
for the parties to expand upon issues that may not be clear. The Committee then
discussed whether the trial de novo system was based upon the Constitution, statutes, or
court rules. In light of the varying opinions on the subject, the recommendation that R.
3:23-3 be amended was withdrawn, and the Committee agreed to table the issue for
further review of the trial de novo system. The Committee will continue to consider this
issue during the next term.
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6. Nicole’s Law – N.J.S.A. 2C:14-12 and N.J.S.A. 2C:44-8
N.J.S.A. 2C:14-12 and N.J.S.A. 2C:44-8, frequently referred to as Nicole’s Law
permit the court (1) to issue an order as a condition of bail or (2) to continue a prior order
or issue a new order upon conviction, prohibiting a defendant charged with or convicted
of a sex offense from having any contact with a victim, including restraining the
defendant from entering a victim’s residence, place of employment, business or school
and from harassing or stalking the victim or victim’s relatives. The law defines “sex
offense” by referencing Megan’s Law, N.J.S.A. 2C:7-2. Similar to Domestic Violence
restraining orders a court order entered pursuant to Nicole’s Law can remain in effect
after a sentence to probation or incarceration has been served. The Committee was
advised that the Conference of Criminal Presiding Judges and Conference of Criminal
Division Managers were drafting an order and procedures to implement Nicole’s Law. In
addition, the AOC formed a Joint Family/Criminal Committee, with judges and AOC
staff participating, to create procedures to prevent entry of conflicting orders by a
criminal judge and a family judge.
If necessary, the Committee will review this matter further after the order and
procedures to implement Nicole’s Law are finalized by the AOC.
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7. Preservation of Evidence
Several years ago the Office of the Public Defender proposed a rule
recommendation mandating the preservation of evidence by prosecuting authorities.
Shortly thereafter, the Division of Criminal Justice issued a Directive addressing the
storage of DNA evidence. As a result, storage of DNA evidence has not been a problem
and the rule proposal was not considered extensively by the Committee. The Public
Defender’s office has reported, however, that the preservation of large physical evidence
is still an issue. Given technological advances, the Office of the Public Defender asked
that the Committee reconsider this topic. A discussion ensued and the Committee created
a Subcommittee comprised of representatives from the Attorney General’s Office,
Prosecutor’s Office, Office of the Public Defender and private defense bar to address this
issue.
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8. Pretrial Intervention Guidelines
This is a matter held for future consideration from the 2004-2007 term. In light of
a recent opinion, State v. Moraes-Pena, 386 N.J. Super. 569 (App. Div), certif.. denied,
188 N.J 492 (2006) in which the Appellate Division reversed the trial court’s order
admitting the defendant into the Pretrial Intervention (PTI) Program over the prosecutor’s
objection, the Committee was asked to consider whether the PTI Guidelines should be
updated. Members of the Committee were asked to forward any proposed changes to the
Committee staff at the Administrative Office of the Courts. This Committee is
continuing to consider this topic.
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9. Recording Requirements for Out-Of-Court Identifications
This was a matter held for future consideration from the 2004-2007 term. In State
v. Delgado, 188 N.J. 48 (2006), the New Jersey Supreme Court exercised its supervisory
powers under the New Jersey Constitution “to require that, as a condition to the
admissibility of an out-of-court identification, law enforcement officers make a written
record detailing the out-of-court identification procedure, including the place where the
procedure was conducted, the dialogue between the witnesses and the interlocutor, and
the results.” The Court added that “[w]hen feasible, a verbatim account of any exchange
between the law enforcement officer and witness should be reduced to writing. When not
feasible, a detailed summary of the identification should be prepared.” Id. at 63. The
Court also noted that although electronic recordation was advisable in stationhouse
interviews where recorders might be available, it was not mandated. Ibid. The Court
requested that the Committee prepare a rule that required that law enforcement officials
record out-of-court identification procedures consistent with the opinion. The Committee
considered a rule proposal and had several comments. The Committee is continuing to
review the proposal.
155
10. Review of Verdict Sheets at Charge Conference
The Committee consider adding a requirement to the court rules that the verdict
sheet be reviewed and discussed at the charge conference as well as the charge itself,
because, notwithstanding the fact that the oral charge may control, the wording and form
of the verdict sheet can sometimes be critical and there should be an opportunity to object
to the verdict sheet and for the objection to be placed on the record. The Committee
discussed the use of verdict sheets in every case or just in multiple-count cases. The
Committee reviewed a rule proposal and had several comments. The Committee is
continuing to review this proposal.
156
11. R. 3:14-1(j) – Technical Amendment
The Committee considered a technical amendment to R. 3:14-1(j) in recognition of
the rights accorded civil partners. The Civil Practice Committee is making similar
amendments to the Part I and Part IV rules. Several members pointed out that other
paragraphs of R. 3:14-1 many need to be amended because they may be outdated. The
Committee is continuing to review this topic.
Respectfully Submitted,
Hon. Edwin H. Stern, Chairman
Hon. Lawrence Lawson, Vice-Chairman
Hon. Christine Allen-Jackson
Hon. Linda G. Baxter
Hon. Marilyn C. Clark
Hon. Gerald J. Council
Hon. Frederick P. DeVesa
Hon. Garry J. Furnari
Hon. Albert J. Garofolo
Hon. John C. Kennedy
Hon. Joseph F. Lisa
Hon. James F. Mulvihill
Hon. Ramona A. Santiago
Hon. Sheila A. Venable
Hon. Barbara Ann Villano
J. Patrick Barnes, Esq.
Robert D. Bernardi, Esq.
Robert A. Bianchi, Esq.
Alan Dexter Bowman, Esq.
Milagros Camacho, Esq.
John M. Cannel, Esq.
Lori Caughman, Esq.
Philip James Degnan, Esq.
John J. Eastlack, Jr., Esq.
Deborah Gramiccioni, Esq.
Dale Jones, Esq.
Henry E. Klingeman, Esq.
James P. Lynch, Esq.
John H. McMahon, Esq.
Boris Moczula, Esq.
Dennis Murphy, Esq.
Brian Neary, Esq.
Joan H. Richardson-Bowser, Esq.
Simon L. Rosenbach, Esq.
Elizabeth H. Smith, Esq.
Tracy Thompson, Esq.
AOC Staff: Joseph J. Barraco, Esq.
Vance D. Hagins, Esq.
Melaney S. Payne Esq.
February 17, 2009
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