Jersey Supreme Court Research Articles

Address at New Jersey Supreme Court Memorial Proceedings for Hon. William J. Brennan, Jr.

Address at New Jersey Supreme Court Memorial Proceedings for Hon. William J. Brennan, Jr.

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Understanding expert testimony on child sexual abuse denial after New Jersey v. J.L.G.: Ground truth, disclosure suspicion bias, and disclosure substantiation bias.

The New Jersey Supreme Court held in New Jersey v. J.L.G. (2018) that experts can no longer explain to juries why sexually abused children might deny abuse. The court was influenced by expert testimony that "methodologically superior" studies find lower rates of denial. Examining the studies in detail, we argue that the expert testimony was flawed due to three problems with using child disclosure studies to estimate the likelihood that abused children are reluctant to disclose abuse: the ground truth problem, disclosure suspicion bias, and disclosure substantiation bias. Research identifying groups of children whose abuse can be proven without reliance on disclosure reveals that denial of sexual abuse is common among abused children.

Analyzing the scientific foundation of Child Sexual Abuse Accommodation Syndrome: A reply to Lyon et al.

The issue before the New Jersey Supreme Court in the Frye hearing New Jersey v. J.L.G. (2018) was whether the scientific community agreed that Summit's (1983) Child Sexual Abuse Accommodation Syndrome rested on a firm scientific foundation. Lyon et al. (this issue) critique our approach to describing child sexual abuse disclosure, which involved extrapolating rates from children who came to the attention of authorities. Lyon et al. claim that our conclusions are marred by sampling biases resulting from what they term the ground truth problem, suspicion bias and substantiation bias. The points Lyon et al. claim we "fell victim to" were the very points we acknowledge are inherent difficulties in estimating the extent to which children will come forward to tell others about sexual maltreatment. Lyon et al. offer an alternative solution to the inherent difficulties in studying a difficult-to-identify population, relying in large part on 21 papers published mostly in the 1960s and 1970s. We argue that the method they propose has more flaws than the one it is intended to replace. Points of agreement and disagreement, along with suggestions for future research, are discussed. Moving forward, we argue that studies are needed that embrace both validity and generalizability in order to foster data-driven theories rather than invoking the intuitive suppositions of Summit's (1983) syndromal evidence.

Investigating and Presenting an Alibi Defense

The New Jersey Supreme Court has said that “few defenses have greater potential for creating reasonable doubt as to a defendant's guilt in the minds of the [jurors than an alibi].” But is alibi a powerful defense, or a risky gambit with a high likelihood of backfiring? In two-thirds of exoneration cases, the innocent defendant offered an alibi which was rejected by the fact finder. This article explores the psychology of autobiographical memory, how police and jurors perceive alibi witnesses, common interview and interrogation tactics, common cross-examination questions, and offers some guidance about how to better present this defense.

Investigating and Presenting an Alibi Defense

The New Jersey Supreme Court has said that “few defenses have greater potential for creating reasonable doubt as to a defendant's guilt in the minds of the [jurors than an alibi].” But is alibi a powerful defense, or a risky gambit with a high likelihood of backfiring? In two-thirds of exoneration cases, the innocent defendant offered an alibi defense at trial which was rejected by the fact-finder. This article talks about alibi defenses from psychological research into the defendant's autobiographical memory and investigator tactics in the interrogation room, to alibi witnesses' memory and susceptibility to post-event information, to expected cross-examination and other courtroom issues.

Improving juror sensitivity to specific eyewitness factors: judicial instructions fail the test

A recent New Jersey Supreme Court decision recognized the difficulty jurors have with evaluating eyewitness evidence. This decision resulted in the development of instructions that highlight factors affecting identification accuracy. Research has explored the efficacy of eyewitness instructions for improving jurors’ decision-making. Jurors in these studies are typically presented with identifications that manipulate multiple witnessing and identification conditions simultaneously, making it difficult to ascertain whether instructions help jurors evaluate any one eyewitness factor. We conducted two experiments to examine how jurors evaluate eight individual eyewitness factors with and without instructions. Across both experiments, none of the individual eyewitness factors nor instructions influenced jurors. Instructions only assisted jurors when multiple eyewitness factors were collapsed to create either extremely good or poor-quality identifications. These findings contribute to the long history of jurors remaining largely insensitive to the nuances of witnessing and identification conditions. Current safeguards may only assist jurors under limited circumstances.

Eyewitnesses in the courtroom: a jury-level experimental examination of the impact of the Henderson instructions

The New Jersey Supreme Court in New Jersey v. Henderson (2011) proposed judicial instructions designed to assist juries in evaluating eyewitness evidence. The current work examines the impact of the Henderson instructions on deliberating jurors, and whether the jury deliberation process helps jurors use the Henderson instructions to evaluate eyewitness evidence. Seventy-nine juries composed of five to nine jurors each viewed a re-enacted criminal attempted rape trial in which the quality of the eyewitness variables (both system and estimator variables) and the presence of judicial instructions were manipulated. The Henderson instructions did not impact the deliberating jurors’ verdicts or the jury verdicts. Juries displayed sensitivity to the quality of system variables (e.g., unbiased instructions), rendering more guilty verdicts when the quality of system variables was good, and more acquittals when the quality of system variables was poor. For estimator variables (e.g., presence of a weapon), the observed pattern was in the opposite direction. Jurors discussed both system and estimator variables during deliberations more often when their quality was poor. The results indicate the importance of examining jurors’ sensitivity to eyewitness evidence at the jury level, and that the Henderson instructions do not aide/improve jury deliberations in cases involving eyewitness evidence.

Supreme Court Appointments in Presidential Election Years: The Case of John Hessin Clarke

Supreme Court Appointments in Presidential Election YearsThe Case of John Hessin Clarke Jonathan L. Entin (bio) When Supreme Court Justice Antonin Scalia died unexpectedly on February 13, 2016, Republicans in the US Senate immediately made clear that they would not consider any nominee proposed by President Barack Obama. Because 2016 was a presidential election year, Majority Leader Mitch McConnell declared within hours of Scalia’s passing: “The American people should have a voice in the selection of their next Supreme Court justice.”1 True to their word, the GOP-controlled Senate refused to take any action on Obama’s nomination of Chief Judge Merrick B. Garland of the US Court of Appeals for the District of Columbia Circuit as Justice Scalia’s successor. This inaction provoked widespread debate, but the vacancy remained open for President Donald J. Trump to appoint Judge Neil M. Gorsuch, of the US Court of Appeals for the Tenth Circuit, to Scalia’s seat.2 The refusal to act on Judge Garland’s nomination marked the first time in 150 years that the Senate had completely stonewalled a Supreme Court [End Page 30] nominee.3 But this does not mean that the confirmation process used to be genteel or straightforward. Since World War II, the only two Supreme Court appointments that had occurred during a presidential election cycle illustrated the fraught nature of such matters. In October 1956, shortly after the opening of the Court’s new term, President Dwight D. Eisenhower nominated New Jersey Supreme Court Justice William J. Brennan Jr. to succeed Justice Sherman Minton, who had retired for health reasons. Eisenhower chose Brennan in an effort to appeal to Catholic voters who traditionally supported Democrats.4 The president acted quickly to put Brennan on the Court, giving him a recess appointment that meant that he was able to hear cases before the Senate got a chance to vote on his confirmation. This posed two potential problems. First, because the recess appointment came before the election, Brennan might not have received a permanent appointment had Eisenhower lost.5 Second, even if Eisenhower won (as he of course did), the recess appointment could undermine Brennan’s independence on the bench because the Senate might retaliate against him for controversial decisions, or, more subtly, Brennan might at least subconsciously decide cases with that possibility in mind.6 In June 1968, Chief Justice Earl Warren announced his retirement. The timing of the announcement was seen as a thinly veiled attempt to prevent the presumptive Republican presidential nominee, Richard M. Nixon, from [End Page 31] appointing his successor. Warren and Nixon disliked each other from their days in Republican politics in their home state of California, and Nixon had strongly criticized the Warren Court’s liberal rulings on criminal law and procedure.7 President Lyndon B. Johnson, who was not seeking reelection, nominated Justice Abe Fortas as the new chief justice, but Republicans and southern Democrats in the Senate filibustered the nomination, and Fortas eventually withdrew.8 Despite the small number of postwar Supreme Court appointments in presidential election years, the prospect of such appointments fueled interbranch tensions. The Brennan appointment played a significant role in the Senate’s adoption of a resolution opposing recess appointments except in “unusual circumstances” to avoid “a demonstrable breakdown in the administration of the Court’s business.”9 Although the resolution expressed only the sense of the Senate, the timing of this move was hardly coincidental: the vote occurred on August 29, 1960, just two days before Congress adjourned to concentrate on the general election, so it served as at least a symbolic warning against any last-minute recess appointments.10 Similarly, as Republicans often pointed out during the Garland stalemate, Vice President Joseph R. Biden, while chairing the Senate Judiciary Committee, had advised President George H. W. Bush not to try to push through a nominee while he was running for reelection in 1992.11 This warning also seemed like no idle threat, coming only a few years after the controversy over the failed nomination of Judge Robert H. Bork and the tumultuous confirmation process for Justice Clarence Thomas. It was not always thus. In 1932, a politically vulnerable President...

Marijuana in the Workplace

Gaming Law ReviewVol. 23, No. 7 ArticlesMarijuana in the WorkplaceSteven W. Suflas and Christopher J. KellySteven W. SuflasSteven W. Suflas is the former managing partner of the Denver office of the law firm of Ballard Spahr LLP. Mr. Suflas is a member of the firm's Labor and Employment Group and concentrates his practice in the representation of management. He has served as the Chair of the Labor and Employment Law Section of the New Jersey State Bar Association (NJSBA), a trustee of the NJSBA, and a member of the New Jersey Supreme Court's Advisory Committee on Professional Ethics. Mr. Suflas was honored to be selected in the inaugural class as an initial fellow of the ABA's College of Labor and Employment Lawyers, and he serves as a member of the National Employment Law Institute's (NELI's) National Advisory Board.Search for more papers by this author and Christopher J. KellyChristopher J. Kelly is of counsel in Ballard Spahr's Labor and Employment group, working from the firm's New Jersey office. Chris has represented both public and private employers in a broad range of litigated matters, including wage and hour, harassment, discrimination, retaliation, whistleblower, breach of contract, unfair competition, and wrongful termination, and employment- and business-related tort claims in both state and federal courts across the country.Search for more papers by this authorPublished Online:11 Sep 2019https://doi.org/10.1089/glr2.2019.2377AboutSectionsView articleView Full TextPDF/EPUB Permissions & CitationsPermissionsDownload CitationsTrack CitationsAdd to favorites Back To Publication ShareShare onFacebookTwitterLinked InRedditEmail View articleFiguresReferencesRelatedDetails Volume 23Issue 7Sep 2019 InformationCopyright 2019, 2019 Mary Ann Liebert, Inc., publishersTo cite this article:Steven W. Suflas and Christopher J. Kelly.Marijuana in the Workplace.Gaming Law Review.Sep 2019.473-479.http://doi.org/10.1089/glr2.2019.2377Published in Volume: 23 Issue 7: September 11, 2019Online Ahead of Print:August 29, 2019Keywordsmedical marijuanadrug testingdisability inquirygamingMMIDMMICPDF download

New Jersey’s Zoning Amendment

A half century before the New Jersey Supreme Court endorsed inclusionary zoning in Southern Burlington N.A.A.C.P. v. Mount Laurel Township, the state struggled to secure basic municipal zoning. While New Jersey’s political elite embraced zoning in the 1910s and 20s to weather a period of tremendous growth and change, a disapproving judiciary steadfastly maintained that the practice violated basic property rights. Hundreds of state court decisions in the 1920s held zoning ordinances unconstitutional. Finally, the people of New Jersey in 1927 overwhelmingly passed an amendment to the state constitution overruling those decisions and affirming zoning as a reasonable exercise of the state’s police power. This essay traces those uncertain early years of zoning in New Jersey. The amendment was not the result of a state monolithically coming to its senses. Instead, its passage documents a decade-long struggle played out not only in the courts and legislature but also in the press and the town meeting.

The Untestable Drunk Driving Test

The intersection of law and science has a long and tortuous history, but a new chapter is being written in New Jersey with the state’s use of the Alcotest 7110 MK III-C for prosecuting drunk driving traffic offenses. As the name implies, this is a device which purports to test levels of intoxication by measuring breath alcohol levels in order to determine blood alcohol concentration. The Alcotest is a proprietary device purchased by the State of New Jersey for use by law enforcement under a contract with the manufacturer that prohibits the State from subjecting the device to “reverse engineering” testing. Although the Alcotest was approved for use by the New Jersey Supreme Court after a proceeding that explored its reliability, serious scientific and legal questions remain, largely because of the manufacturer’s refusal to sell a device for independent testing or permit the State to provide its devices for such assessment. Given this limitation, any conclusions about the Alcotest are necessarily tentative. Nevertheless, as detailed in this Report, there are serious reasons to doubt the accuracy and reliability of the test, especially the manufacturer’s claims of the superiority of its product because, unlike other devices, the Alcotest employs two independent measures of breath alcohol. In reality, the two measures are highly interdependent. In addition, there are other reasons to question the validity of the test as an accurate measure of intoxication. The Alcotest machine and the process by which it has been adopted raise the following novel issues: • In New Jersey, the Alcotest device has been adopted to the exclusion of all other devices. The Alcotest is now the only breath alcohol analyzer of record in the state. • The Alcotest device is now ‘immunized’ from challenge and from outside testing, and doubly so: • By New Jersey’s contract with Draeger, which allows Draeger to prohibit any entity other than the state from purchasing the Alcotest, and • By the decision in State v. Chun, which acknowledges Draeger’s intellectual property rights to the source code of the Alcotest, thus preventing any outside entity from determining how the machine works. • Measurement devices like the Alcotest are inherently inexact, not because of oversights or poor design but because any measurement carries with it measurement errors. Sources of error for previous machines were reasonably well investigated, documented, and understood. The Alcotest, while new and theoretically better than previous designs, is also subject to measurement error, but because of the Alcotest’s immunity to challenge, those sources of error are currently not subject to investigation by scientists, let alone litigants. The point — that a consequential and relatively ubiquitous scientific instrument is unavailable for scientific purposes, under any circumstances — is more than a theoretical issue. The hallmark of the scientific process is testing and peer review. As matters now stand, it is impossible to test and review the Alcotest in the courts, and Dr. Snow’s experiences show that it is further exempted from testing and review in the scientific community. This report investigates the process by which the Alcotest was adopted; the extent to which it is immune from testing; the reason that such immunization is dangerous in light of the science of breathalyzers in general and the Alcotest in particular; and, finally, the legal consequences of admission of evidence that cannot be tested either in general or in this particular case. Because science lies at the core of the legal issues surrounding the use of the Alcotest, Part Two of this report describes the science behind blood alcohol tests in general and the Alcotest in particular. Part Three considers the circumstances and the Special Master’s decision of State v. Chun. Finally, the report’s conclusion addresses the legal consequences of the aforementioned testing prohibitions upon the use of the device in litigation.

Judicial Understanding of the Reliability of Eyewitness Evidence: A Tale of Two Cases

One of the most significant consequences of the use of post-conviction DNA testing in the criminal justice system has been the growing recognition that eyewitness identification testimony is simply not as reliable as it was previously considered to be. In approximately 75% of DNA exonerations in the United States, mistaken eyewitness identifications were the principal cause of wrongful convictions. Notwithstanding scientific advances regarding human memory and other factors that could influence identifications by eyewitnesses, courts have not shown eagerness in utilising such scientific knowledge in reaching legal decisions. Two cases have been chosen for discussion in this article. In S v Henderson 27 A 3d 872 (NJ 2011) the New Jersey Supreme Court was the first in State and Federal jurisdictions in the US that adopted a science-based approach to the evaluation of eyewitness evidence. The other case under discussion is S v Mdlongwa 2010 2 SACR 419 (SCA),a South African Supreme Court of Appeal judgment, where the identification of the perpetrator was based on an eyewitness account and the evidence of an expert on CCTV images. In part one of this article the research findings with regard to estimator variables that were acknowledged in S v Henderson are discussed. Part two specifically scrutinizes S v Mdlongwa to determine the extent to which psychological eyewitness research findings are recognised in South Africa as having an influence on the reliability of eyewitness evidence. In Henderson the court recognised that the legal standards governing the admissibility and use of identification evidence lagged far behind the findings of numerous studies in the social sciences. The new wave introduced by S v Henderson has not gone unnoticed in other State courts in the USA. In Massachusetts, for example, the Justices of the Supreme Judicial Court convened a study group on Eyewitness Evidence and the resulting report inter alia recommended judicial notice of modern psychological principles, revised jury eyewitness identification instructions and continuous education of both judges and lawyers. Recognition and education pertaining to these factors can and should be incorporated in South Africa.
 

Comparing the effectiveness of Henderson instructions and expert testimony: Which safeguard improves jurors’ evaluations of eyewitness evidence?

Objectives The New Jersey Supreme Court recently determined that jurors may not be able to effectively evaluate eyewitness evidence on their own. As a result, the Court proposed the use of judicial instructions to assist jurors (called Henderson instructions) and suggested the implementation of these instructions would reduce the need for expert testimony. We tested the efficacy of these instructions compared to alternative instructions and expert testimony.

Henderson Instructions: Do They Enhance Evidence Evaluation?

ABSTRACTMistaken eyewitness identifications are a leading cause of wrongful convictions. Even with procedural safeguards (e.g., attorney argument, cross-examination of witnesses) in place, jurors still have difficulty evaluating the reliability of eyewitness identifications. The purpose of the current study was to test the New Jersey Supreme Court’s assumptions that recently implemented research-based case-specific jury instructions will sensitize jurors to unreliable eyewitness testimony. Four hundred sixty-eight jury-eligible adults watched a trial simulation in which estimator variables, system variables, and jury instruction were manipulated, and subsequently rendered a verdict. The Henderson instructions influenced mock jurors’ perceptions of the eyewitness identification, but these perceptions did not translate to their verdict decisions. Rather than sensitizing jurors, the instructions induced an overall skepticism of eyewitness identification. Taken together, results indicate that the current Henderson instructions should be modified to improve juror sensitivity to various witnessing and identification conditions.

APA Weighs In on Cases Where Law Intersects With Psychiatry

APA Weighs In on Cases Where Law Intersects With Psychiatry

Survey of Criminal Procedure -- Alternative Dispositions of Defendants

The criminal justice system provides various alternatives for the disposition of criminal defendants. Three of these alternatives, pretrial intervention, drug treatment, and probation, were dealt with in recent New Jersey Supreme Court decisions. The court examined the substantive criteria and procedures used in assigning each disposition and focused primarily on the desire to provide rehabilitative opportunities for each defendant. This note will examine those decisions and the implications of the court's concentration on the goal of rehabilitation.

Table of Contents

AbstractNew Jersey Supreme Court to Rule on Methadone Treatment during PregnancyFamily and Community Linkages Key in Youth TreatmentNSDUH: Daily Marijuana Use Increasing among TeensBlog Post Critical of IC&RC Training Full of ErrorsCSAT's Clark: SBIRT Trials Should Focus on Mild SUDsBriefly NotedComing up

Just When You Thought You Understood New Jersey Allocation Law: Implications, Limitations, and Complications in Applying Farmers Mutual Fire Ins. Co. of Salem v. New Jersey Property-Liability Ins. Guar. Ass’n

The New Jersey Supreme Court's recent decision in Farmers Mutual Fire Insurance Company of Salem v. New Jersey Property-Liability Insurance Guaranty Association holding that a 2004 statutory amendment requires all solvent triggered liability policies be exhausted before the Guaranty Association pays statutory benefits for an insolvent's share has created many uncertainties in allocating long-tail liabilities. This article discusses the implications and the significant limitations of the Farmers Mutual decision and the questions it leaves unanswered, and responds to arguments that the decision supports revisiting other situations where New Jersey's Owens-Illinois methodology allocates losses to the insured.

A longitudinal analysis of impacts of court-mandated education finance reform on school district efficiency

While there has been increasing interest in the impact of courtmandated education finance reform on school district efficiency, research on the subject is scant. Taking advantage of New Jersey Supreme Court cases that have altered the way in which state school aid is distributed, this paper examines the effect of changes in the education finance system on school district efficiency. Building on existing literature on public sector efficiency, a longitudinal data analysis based on two-stage DEA models reveals that courtmandated increases in state aid to a limited number of poor school districts decreased the districts' efficiency. Though these results should be interpreted with some caution, in particular, the limitation of DEA as an efficiency measure, they imply that, as with any policy, policy makers and courts should be aware of how policy changes affect local government behavior and that it is necessary to evaluate policy outcome taking into account both resources and performance.