An extreme risk protection order (ERPO) is a gun violence protective order which prohibits individuals who pose a risk to themselves or others from purchasing, owning, or possessing a firearm or ammunition. The assumption behind these orders is that the individual may not have done anything yet, but they are a threat to themselves and those around them.

Red Flag Law Timeline

The United States Constitution gives citizens the right to possess firearms, but that right is not absolute.  In 1999, the state of Connecticut was the first in the nation to enact a red flag law after a mass shooting. It was followed by California (2014) and Washington (2018). In Indiana, when a mentally unwell man slew a police officer, they passed theirs in Florida. In 2018, New Jersey passed the Extreme Risk Protective Order Act as it saw a troubling rise in gun violence.  Since the law has been in effect, more attention has been focused on gun violence prevention, and at least one ERPO has been issued daily.  It was observed that visible signs by the perpetrators were indicators of potentially dangerous behavior.

Primary Purpose of an ERPO in New Jersey

An ERPO allows the courts to seize guns and weapons from those suspected of posing a risk to the community or themselves. The individual can neither purchase them nor obtain a permit to purchase or carry them if a judge determines that the individual is a danger to themselves or their community and has been allowed to have a firearm.

Who Can Request an ERPO?

A law enforcement officer, member of the household, or family member with whom the individual does not reside can request an ERPO.  The Petition for Temporary Extreme Risk Protective Order can be filed at the Criminal Division of the County Superior Court, or at a local law enforcement agency.  Other people may also submit a request, but it has to be done through the local law enforcement agency.  The complainant explains the potential danger to law enforcement, and once having been convinced, the police officer requests the order. In these situations, the order can be requested from anyone within the individual’s circle of influence.

Distinctions Between a Temporary (TERPO) and a Final (FERPO) Order

The TERPO only requires testimony from the petitioner or law enforcement, and the respondent is not present at the hearing.  The hearing is expedited, and testimony is received from the petitioner or affidavit. To obtain a TERPO, probable cause must be shown.  If the individual owns or possesses firearms and ammunition, presents an immediate danger of bodily injury by owning or possessing firearms or ammunition, or is the subject of or has violated a temporary or final restraining order, they qualify for a TERPO.  The respondent cannot avoid this process.

The judge considers many variables to apply a TERPO.  Most of them involve direct violence or possible violence, like having an ERPO or having violated one, having a restraining order or having violated one,  a juvenile record with violent charges, criminal history, or any additional information offered by law enforcement or the prosecutor.

In 10 days, a hearing for the FERPO will be held. The respondent attends the hearing providing witnesses, submitting documents and information, and cross-examining witnesses. This is not something you want to do without a lawyer.

Standard of Proof for an ERPO – A Preponderance of Evidence

To obtain a Final Extreme Risk Protection Order, the petitioner must show that their evidence is more solid and convincing than the respondent’s.  That is to say, the facts in the petitioner’s case are more probable than not.  A FERPO requires a preponderance of the evidence, which is a kind of proof that is less than reasonable doubt but does require proof beyond a reasonable doubt.  At the close of the hearing, if it is decided that the respondent is a danger to themselves and others, an order will be made effective to prevent them from owning, possessing, or purchasing a gun or other weapon. They will have to give up their gun permit(s) as well. If it is later known that the weapons belong to someone other than the respondent, and it can be proven, the property may be returned to the owner.

The court looks at many relevant factors when determining whether or not a FERPO will be issued. Factors under consideration include: if the respondent has a history of violence either as an adult or juvenile to themselves or others, has ever used or brandished a firearm, recently purchased a firearm, weapon, or ammunition, has an addiction or is receiving treatment for that addiction, has mental health issues, has been institutionalized involuntarily, is recovering from mental illness issues or has a history or prior arrests of threatened physical force, in terms of arrests such as animal cruelty, stalking, domestic violence or other violent acts.  The court also accounts for whether the respondent has violated or been the subject of a restraining order, a sexual assault restraining order, a separate order. The existence of, or violation of, another protection order is another critical factor.

Implications of a FERPO in NJ. Can It Be Appealed or Terminated?

To terminate or lift a FERPO, either party can submit a motion and inform the party that petitioned for the order initially. Once everyone has been served, a hearing will be calendarized, and on that day, the court will consider whether to terminate the order. The interested party has the burden of proof. They must prove they no longer pose a danger to themselves or anyone else and that their ownership or control of a firearm is not a safety concern.  The judge will apply the factors used to determine the necessity of an order, such as the arrest record and the person’s mental health under the FERPO.

Speak to a Morristown Extreme Risk Protective Order Attorney if You Have a Case in Morris County, NJ

Once you are named in an ERPO in New Jersey, your weapons and gun rights are in jeopardy. This requires a skillful, aggressive defense. A solid gun rights lawyer can advise you on how to best defend against a final extreme risk protective order and work on your behalf to avoid an ERPO being made final altogether. If that is not a possibility, an attorney can strategize and assist you with the complex process of requesting to have the order removed because its results are far-reaching. As a dedicated defender of clients facing guns and weapons violations of all kinds in the state of New Jersey, our attorneys will fight for your rights passionately and give you the peace of mind that your case is in excellent hands. We serve areas like Chatham, Harding, Morris Plains, Florham Park, Morristown, Riverdale, Roxbury, Hanover and other towns in Morris County, and statewide.

Call 973-524-7238 to speak with a lawyer free of charge regarding your New Jersey ERPO questions. We are entirely at your disposal and ready to ensure your right to bear arms is not infringed upon.

Your right to legally possess a handgun or other type of firearm in Morris County is protected by the U.S. Constitution, but that doesn’t mean that the right is absolute. When you exceed the bounds of the law and commit what is known as a gun crime in New Jersey, you can be arrested, charged with a weapons offense, and face serious legal jeopardy. Worse yet, NJ law includes provisions that could result in automatic prison time without the possibility of parole if you are ultimately convicted at trial on the gun charges, or if you plead guilty to the charges. These mandatory penalties are set forth in the Graves Act, and the likelihood of a lengthy prison sentence in your case is just one reason why you need to be represented by a criminal defense lawyer who has experience defending clients against gun charges in Morristown, Mount Olive, Parsippany, Randolph, Boonton, Denville, Roxbury, and elsewhere in Morris County.

Here is an explanation of Morris County gun charges, including how they typically occur and what kinds of penalties you might face in your gun case.

How Do Gun Charges Often Occur?

The location and circumstances of a gun arrest can influence exactly what types of charges are filed, which can in turn affect the penalties that the defendant is exposed to. Arrests on gun crime charges commonly happen during a traffic stop for a moving violation, with police either seeing a gun in plain view inside of the vehicle or searching the vehicle on suspicion of criminality (drugs, guns, etc.) and finding an illegal or illegally possessed weapon in the glove compartment, trunk, or under the seat. Gun charges are also commonly filed when a gun is used in another crime, such as aggravated assault, attempted murder, or a domestic violence incident. In fact, a lot of gun charges occur when police conduct a search at a domestic violence scene, discover a handgun or other firearm, and then learn that the owner isn’t legally allowed to possess the weapon. Additionally, if the gun was allegedly used to commit a crime, the underlying charges could be upgraded to more serious charges that carry harsher penalties. For example, a charge for simple assault could be upgraded to an aggravated assault charge when the defendant is accused of using a deadly weapon in the attack.

When police do make an arrest on a gun charge, the ensuing legal process and the possible consequences you face will depend on a lot of factors, including the type of gun involved in the offense. These are some of the most common guns involved in Morris County weapons offenses:

  • Handguns
  • Shotguns
  • Rifles
  • Air Guns, Airsoft Guns, and BB Guns
  • Assault Weapons

What Are the Most Common Gun Crimes in Morris County, NJ?

There are several different gun crime charges addressed by the NJ Criminal Code, with the degree of the charge making the biggest difference when it comes to the range of penalties like prison time, fines, etc. The important thing to recognize is that New Jersey gun crime charges are almost always classified as felonies, which means that a conviction can result in the defendant being sentenced to serve time in state prison as opposed to the county jail. Additionally, the sentences in these cases are significantly longer. The exact length of the prison sentence imposed in your gun crime case if you are convicted will depend on the degree of the charge. For example, a fourth degree gun charge carries a possible penalty of 18 months in prison, while a second degree gun charge carries a penalty of up to 10 years in prison. The following discusses some of the most common gun crime charges in Morris County.

Unlawful Possession of a Weapon

Firearm ownership in New Jersey typically requires a person to obtain a permit to possess the gun. If you obtain a handgun, shotgun, rifle, or just about any other type of firearm without first securing a firearms ID card, your possession of that weapon could be deemed “unlawful.” When police discover you with that weapon and you cannot produce proof that you are legally allowed to possess it, or you have it somewhere other than a legal location like your house or securely locked and unloaded away from the driver’s compartment of your car, you may be arrested and charged with Unlawful Possession of a Weapon. As set forth by N.J.S.A. 2C:39-5, this crime is always classified as a felony-level weapons offense. The penalties can also escalate depending on the type of firearm. For example, since illegal possession of a machine gun is classified as a second degree offense, it carries penalties that include 5-10 years in prison and $150,000 in fines.

Possession of a Weapon for an Unlawful Purpose

Even if you have a permit to possess and/or carry your gun, you could still be charged with a weapons offense for carrying it with unlawful intent under N.J.S.A. 2C:39-4. This is known as Possession of a Weapon for an Unlawful Purpose, and it means that you had the gun on your person with the intention of using it illegally to harm another person or to destroy someone else’s property. For example, if you carried a gun while committing a robbery, you may be charged for both the robbery offense and the weapons offense because the prosecution will likely argue that you were carrying the weapon for the purpose of using it during the robbery. Also, it won’t matter that you did not use the weapon; all that matters is that you were in possession of it while committing a crime. A conviction for Possession of Weapons for Unlawful Purposes could be devastating because not only would you face significant penalties for the underlying offense, but you would also be subject to penalties for the gun crime that can include a sentence of 5-10 years in prison.

Certain Persons Offenses

Although the Second Amendment of the United States Constitution stipulates that U.S. citizens have the right to bear arms, that right may be restricted or even permanently lost in certain circumstances. In New Jersey, it is against the law for many convicted felons to possess a firearm after their release from prison. This is particularly true when the individual was convicted of a violent crime such as Aggravated Assault, Sexual Assault, Robbery, or Kidnapping. If you are prohibited from possessing a firearm due to a prior conviction for one of these crimes, and police subsequently discover you with a firearm, you could be charged as a Certain Person Not Allowed to Have Weapons under N.J.S.A. 2C:39-7. This crime is classified as a second degree offense when the weapon is a firearm, which means that you could face 5-10 years in prison and up to $150,000 in fines if you are convicted. If you were previously convicted of a disorderly persons offense for Domestic Violence, the Certain Persons Offense becomes a third degree crime and still carries a possible penalty of 3-5 years in prison.

Ramifications of Gun Charges in Morris County

Since gun crimes in New Jersey are indictable offenses, the case is always handled in the Morris County Superior Court. This means that your trial and any pre-trial hearings will occur at the Morris County Courthouse in Morristown, NJ, and the county prosecutor’s office will be prosecuting the case. Before your case reaches trial, however, it will first have to go before a grand jury. Only once the grand jury has issued an indictment on the charges will your case be scheduled for trial. Grand jury indictments are relatively easy for prosecutors to obtain, particularly since neither the defendant nor their attorney are allowed to present a defense. At trial, however, you will be able to respond to the charges. You may also be able to avoid trial by reaching a plea deal with the prosecution to either downgrade the charges or receive a lesser punishment like probation. You may even be able to use the Pre-Trial Intervention Program to dismiss them altogether. When facing a mandatory minimum sentence for a gun charge, you’ll need a Graves Act Waiver to negate the otherwise required sentencing terms. All of this should underscore the need to talk to an attorney who can protect your rights and help you achieve a positive outcome.

What to do if you face gun charges in Morris County, New Jersey

Without an experienced criminal defense attorney on your side, the outcome of your case could be disastrous. The potential consequences of gun charges in Morris County include prison time, fines, and a permanent criminal record. The prison time could range from 18 months in prison for a fourth degree offense to 10 years in prison for a second degree offense. Moreover, the ramifications of your gun charges could be affected by the Graves Act, which applies to most gun possession offenses. The Graves Act places a requirement on judges in these cases to hand down a prison sentence. For second and third degree gun charges, the judge must impose a minimum mandatory term of incarceration of at least one third of the full sentence or 42 months (whichever is greater), and the defendant will be ineligible for parole during this time.

Contact an authoritative Morris County firearms lawyer with vast learning in the realm of New Jersey weapons laws at 973-524-7238 to review the details of your gun case in a free initial consultation.

In New Jersey, there are laws against violent altercations that become physical enough to rise to the level of “assault.” Anyone who is charged and ultimately convicted of Aggravated Assault – the most serious type of assault crime – could find that their life is destroyed. That’s because Aggravated Assault is classified as a felony-level offense, which means that it comes with the possibility of incarceration, as well as a criminal record. Moreover, there are varying degrees and penalties for Aggravated Assault, which means that certain types of assault could result in even worse punishments. To learn more about the degree and penalties for Aggravated Assault charges in New Jersey, keep reading.

What Is Aggravated Assault?

When it comes to assault charges in New Jersey, there is a crucial distinction between Simple Assault and Aggravated Assault. While both charges can result in significant punishments, the simple fact is that an Aggravated Assault charge is far more likely to result in the defendant being required to serve time behind bars. That’s because Aggravated Assault is classified as an indictable offense, also called a felony. Not only does an Aggravated Assault charge carry the potential for incarceration, but certain types of assault charges can lead to extensive prison time for a defendant who is convicted.

As set forth by N.J.S.A. 2C:12-1(b), a person can face more serious Aggravated Assault charges in particular circumstances:

  • Injuries: When the victim sustained serious bodily injuries that resulted in hospitalization, it’s very possible that what might otherwise have been considered “simple assault” will be elevated to “aggravated assault.”
  • Weapon: When the defendant used a gun, knife, or other deadly weapon to commit the assault, it’s very likely that prosecutors will bring Aggravated Assault charges.
  • Status of Victim: The identity of the victim can also have a major impact on the prosecution’s decision to file charges for Aggravated Assault instead of Simple Assault. Certain categories of individuals, including police officers, firefighters, emergency medical responders, public school employees, receive special protections under the law.

The reason for the enhanced charges when the assault is committed against a public servant is because the law recognizes the need to protect certain individuals in order to ensure the smooth operation of important governmental and societal tasks. The specific protected classes of public servants that receive these special protections include police officers, firefighters, emergency medical responders, school employees (e.g., school bus drivers), workers with the Division of Youth and Family Services (DYFS), and judges.

Degrees of Aggravated Assault Charges in New Jersey

Although all aggravated assault charges are considered felonies and therefore carry the possibility of prison time, the exact degree of your aggravated assault charge is likely to determine whether you are actually sentenced to prison time.

Second Degree Aggravated Assault

The most serious Aggravated Assault charge is a second degree offense. You can be charged with second degree Aggravated Assault if you cause serious bodily injury. Moreover, you can be charged with a second degree offense if you merely attempt to cause serious bodily injury, regardless of whether the victim actually suffered injuries. What exactly is meant by “serious bodily injury,” and how does it differ from an ordinary bodily injury? A serious injury is one that exposes the victim to a significant risk of death, or one that causes the victim to suffer permanent disfigurement. Keep in mind, however, that law enforcement and prosecutors have wide latitude when it comes to making an arrest and bringing charges for second degree assault, so even something as minor as a cut or laceration could result in these higher-level charges.

Another circumstance that can give rise to second degree Aggravated Assault charges is when the assault occurred while attempting to flee or elude police. Basically, if you run from police and you cause any kind of bodily injury to a police officer or anyone else while fleeing, you could face the most serious charges for Aggravated Assault.

Third Degree Aggravated Assault

Third degree Aggravated Assault is a step down from a second degree charge, but it is still considered a felony-level offense. A person can be charged with third degree assault if they cause bodily injury while using a handgun or other deadly weapon. Just like with second degree charges, third degree charges can also be filed against someone who simply attempts to cause bodily injury to another person while using a weapon. Obviously, a key factor in a third degree assault charge is the use of a deadly weapon during the attack. If you are in possession of a gun, knife, or any other object that can be used to inflict violence, you could be at risk of an assault charge on top of any Weapons Offense charges that might apply. Moreover, merely pointing a firearm, or an imitation firearm, in the direction of a police officer could trigger third degree charges.

In addition to the presence of a weapon during the assault, another element of a third degree Aggravated Assault charge stems from the distinction between “serious bodily injury” and “bodily injury.” When the injuries sustained by the victim don’t require hospitalization or result in permanent disfigurement, prosecutors may file a reduced charge for a third degree offense. It is far easier for the prosecution to establish this element of a third degree assault charge because bodily injury basically means any injury at all, whether it involves pain or illness suffered by the victim.

Even if the defendant is not accused of using a weapon, third degree charges may still be appropriate where the defendant’s assault caused significant bodily injury. Under NJ law, a “significant bodily injury” is an injury that results in the victim suffering a short-term – but not permanent – loss of the function of any body part or any of their senses. This means that the victim sustained damage that is more than a mere bodily injury but not at the level of a “serious” bodily injury.

Fourth Degree Aggravated Assault

The lowest Aggravated Assault charge that a person can face is for fourth degree assault, but don’t let that deceive you: it is still a felony, and it still comes with the possibility of incarceration in a state prison for anyone who is convicted or who pleads guilty. Fourth degree assault charges are likely to be filed when the higher-level charges simply don’t apply. Specifically, a person can be charged with fourth degree Aggravated Assault if they injure someone while using a deadly weapon, or if they aim a gun in the direction of someone.

Additionally, a misdemeanor charge for Simple Assault can sometimes be elevated to a felony charge for fourth degree Aggravated Assault depending on the circumstances. It is important to understand that there is a meaningful difference between Simple Assault and Aggravated Assault because the latter is an indictable charge that will go before a grand jury and that can result in prison time for the offender. By contrast, a Simple Assault charge is tried at the lower Municipal Court level, and it typically does not result in the defendant being sentenced to jail time. Even the worst conviction for a simple assault can lead to 6 months in county jail. That is a major difference from a fourth degree aggravated assault, which carries prison time for up to a year and a half.

What Are the Penalties for Aggravated Assault in NJ?

Aggravated Assault is always considered a felony crime, which is why the charges are heard in the county Superior Court as opposed to the local Municipal Court. It’s also why a defendant who is convicted of Aggravated Assault is subject to prison time. In some cases, that prison time can be mandatory because the No Early Release Act (NERA) applies to second degree Aggravated Assault charges. The other penalties for someone who is convicted or who pleads guilty to the charges can include substantial monetary fines of up to $150,000, a criminal record that stands to follow the offender for the rest of their life, a requirement to attend anger management classes, and an order to pay monetary restitution to cover the victim’s medical bills. Of course, the harshest penalty that may be imposed in an Aggravated Assault case is a prison sentence. The range of that prison sentence is determined by the degree of the charge, specifically:

  • Second Degree Aggravated Assault: 5-10 years in prison
  • Third Degree Aggravated Assault: 3-5 years in prison
  • Fourth Degree Aggravated Assault: up to 18 months in prison

If you have been charged with aggravated assault in New Jersey and would like to speak with a dedicated criminal defense lawyer with years of experience handling felony assault charges, contact 973-524-7238 today. Free consultations are entirely confidential and available to meet your needs.

More than likely, you will find yourself entangled in the court system at some point in your life. The odds are high that you will get a ticket if you drive, walk, or live in a municipality. Everyday activities, like parking your car to go grocery shopping, hurrying off late to work, or meeting a friend for drinks at the local pub, can all end up with a trip to municipal court for parking violations, speeding tickets, DWI charges, and disorderly persons offenses. These are unfortunate but common circumstances that drive numerous people daily through the more than 500 municipal courts in the state of New Jersey. However, for more serious offenses, like most white collar crimes, violent crimes and bodily injury, drug charges, and gun crimes, you are likely to pass through the doors of the Superior Court, where indictments and jury verdicts lead to harsher sentences than municipal court judgments.

What Happens in NJ Municipal Courts?

Municipal courts are where you pay or challenge your careless driving ticket, fight a DUI, or face county jail time for a disorderly persons charge, which is basically a criminal misdemeanor. In addition, municipal court judges pronounce judgment on offenses involving hunting and gaming violations, small claims, and municipal ordinance violations. The sentences in municipal court are limited to six months in jail and $1,000.00 in fines for a disorderly persons offense. But a judge can also impose other penalties in compliance with DUI or DWI laws and sentence defendants to community service, probation, and/or suspend their license. And while a defendant has rights to a trial and an attorney, they do not have the right to a jury trial. Instead, a municipal court judge decides cases.

In municipal court, many minor infractions like traffic tickets are resolved by paying a fine without a court appearance. The ticket will state whether the accused must appear in court or not and the specific violations’ fines that some defendants can pay without a hearing. Even if the ticket does not require an appearance, an accused may get their day in court by requesting a hearing. Certain matters require a hearing no matter what, even technical motor vehicle violations like driving under the influence of alcohol and drugs offenses.

Many victims of domestic violence also start their journey to getting a protective order in municipal court. They contact a municipal court judge when they need emergency assistance with a temporary restraining order to keep a spouse, partner, or other intimate relation from harming them. However, they can also petition the superior court.

What Happens in Criminal Cases in County Superior Court?

In a superior court, a defendant has the right to a jury trial. All 21 county Superior Courts in New Jersey handle indictable crimes, from fourth degree shoplifting to first degree murder. In addition, they handle family court matters, including particular criminal matters, like contempt for restraining order violations in domestic violence cases and juvenile court cases. Superior Court judges also hear civil suits and municipal court judgment appeals in various divisions based on the type of case. So, if you believe the municipal court judge made errors in your disorderly conduct trial, you can hire a criminal appeals attorney to challenge the decision in Superior Court. And if you wish to appeal a Superior Court case decision, you can petition the Appellate Court to review the case. From there, Appellate Court decision reviews occur in New Jersey’s Supreme Court.

Superior Court cases begin with a criminal complaint describing the charges against a defendant. The County Prosecutor’s Office represents the state and reviews police evidence, and other evidence gathered to convict a defendant. A prosecutor assigned to a case decides whether to pursue the charges and send the proof to a grand jury for indictment or reduce the criminal charges and send the case to municipal court. They may also dismiss a complaint if they believe the evidence is insufficient to convict a defendant. The case proceeds to trial if the grand jury delivers an indictment, with several hearings between arrest, detention, arraignment, pre-indictment conference, pre-trial conferences, and trial.

If the defendant, typically through counsel, and the prosecutor have not reached a plea bargain and the case is not otherwise resolved by way of a diversion like Pre-Trial Intervention or Drug Court, probation, or another alternative, the court impanels a jury for trial, and a trial follows. The jury renders a guilty or not guilty verdict, and later, the judge sentences the defendant based on the criminal circumstances, law, and defendant’s individual situation. Both sides of the case get to argue aggravating and mitigating factors that weigh for or against the severity of the sentence in a defendant’s case.

How an Attorney can Help if You have been Charged with a Criminal or Traffic Offense in NJ

If the police arrested you or issued you a complaint summons accusing you of an offense anywhere in New Jersey, be sure to retain counsel to appear with you in court. Regardless of how you get to Municipal Court or Superior Court to resolve your case, you want legal representation.  Although Municipal Court sentences are less severe than Superior Court sentences, they can still cause significant damage to your life, even for a lifetime. DUI convictions are permanent scars on your driving record and criminal convictions can restrict your employment, educational, and housing opportunities, even destroy your lifelong plans for employment in certain fields.

Finding the best Municipal Court or Superior Court criminal defense attorney is the wisest strategy to not only survive the consequences of criminal charges, but more importantly, preserve your constitutional rights in the criminal process. You are innocent until proven guilty. Your attorney can protect you from unfair treatment by the state, presuming and treating you as if you are guilty before having proven their case beyond a reasonable doubt.

Find a Local NJ Defense Lawyer to Handle Your Case

Charged with a criminal or traffic offense in NJ? Hire the attorney with the most knowledge and experience in the law and the court governing your case. Wherever you reside, you want to find an attorney who deals with the Municipal Court or Superior Court judges and prosecutors in the location where your case occurred. Before you must appear, sit down with your attorney, tell them what you were doing when arrested or charged, and how the police handled the arrest.

Disclose all information you can recall as your defense lawyer needs to know the details of what happened. What you may not think is necessary may be critical for your defense. Have your attorney explain the entirety of the court process and what you can expect. Be sure to hire someone you can trust, feel comfortable with, and know has the background and track record to handle your case. Contact 973-524-7238 if you would like to talk to a New Jersey criminal defense attorney about your case free of charge.

Few people who have long driven the public roadways in New Jersey avoid the inevitable traffic ticket, while many others face criminal charges for offenses ranging from simple assault to unlawful possession of a weapon. When your offense has a hearing date for appearance in court, you can significantly complicate your life if you miss the date and fail to appear. You could lose your license, pay increased fines, and suffer arrest. In addition, failing to appear for a court date often results in a warrant for your arrest. You may not even know about the arrest warrant until the police pull you over for a minor infraction, like a broken taillight on your car. Before you know it, an officer is booking you into jail while you await a judge’s determination of whether you stay there or get released before your trial date.

This nightmare can happen when you fail to appear for a Superior or Municipal Court hearing. While you may have a valid excuse for missing your court date, such as a serious illness, accident, or emergency that prevented you from coming to court, the judge presiding over your hearing does not know it. Thus, if you fail to appear, the judge may issue a warrant. Since you are legally required to appear in court for scheduled hearings, you must appear, or the judge may note that you failed to appear and issue a warrant for your arrest, especially for Superior Court criminal matters. The warrant for your arrest may stay open until the judge recalls, withdraws, or discharges it. And if the court re-schedules your case on the court calendar, you must then appear and explain why you failed to appear initially. However, if you appear in court without an attorney, you may find yourself having extreme difficulty when you try to explain why you missed court.

Can You Explain Failure to Appear for Court in NJ?

When you do appear before the judge, you must make your case for missing a scheduled hearing, preferably with an experienced criminal defense attorney who can advise what not to say and represent your interests. It is never excusable to miss a court date because you overslept, had a flat tire, never received notice of the hearing, forgot, could not get a babysitter, or had to work. The court takes priority, and you are obligated to keep the court informed of address changes so that the court clerk can notify you of important dates. However, when you miss court due to a legitimate emergency or circumstances beyond your control, like a natural disaster, the court can recall the warrant and place your matter back on the court’s calendar.

Failed to Appear for a Superior Court Date, Now What?

If you do not appear for a Superior Court date involving an indictable crime of the first, second, third, or fourth degree, you may be considered a risk for not showing up to future hearings in the  criminal proceeding. And you will have several court dates to attend in the life of a typical criminal case. In failing to appear to one of those hearings, a judge can, upon the prosecutor’s motion, detain you pending your trial if they believe you are prone not to follow the law and therefore, may fail to appear at other hearings along the criminal case timeline of arraignment, pretrial hearings, and trial. That means you can spend time in jail since New Jersey eliminated release on bail payments pending trial. Plus, a failure to appear raises risk assessment concerns for the current case and future criminal complaints. Your criminal history follows you and can negatively affect the outcome of future cases, including stiffer penalties and fines in sentencing. In addition, with a failure to appear history, pretrial detention is more likely.

Missed a Municipal Court Appearance in NJ, What Happens?

The process is a little different in Municipal Court. For municipal court traffic violations or disorderly persons offenses, failure to show up to pay your ticket may result in a failure to appear notice in the mail. The notice informs you what to do next to rectify the situation. If you ignore the notice or it is deemed appropriate given the charges, the Municipal Court judge can issue a warrant for your arrest. In addition, a judge may report the failure to appear to the Division of Motor Vehicles within 30 days of the non-appearance and order your license suspended until you resolve the matter.

Whether your failure to appear occurred in Superior or Municipal court, you do not want to chance to get yourself arrested and detained in jail for weeks. Instead, find a knowledgeable criminal defense attorney to help you straighten out a failure to appear and consequent warrant for your arrest, suspension of your driving privileges, suspension of your car registration, or increased fines. You are ill-advised to appear before a judge without an experienced criminal defense lawyer on your side. Your lawyer can often persuade the judge to recall the warrant upon reassurance that you will appear for the remaining hearings. And if you can assure the judge that you are not a risk for other failures to appear, you might avoid a prosecutor’s motion for detention or, at least, have a lawyer to oppose the motion.

Who can Help with a Failure to Appear in Morris County NJ?

A failure to appear has severe consequences for pending criminal charges in New Jersey Superior Court or criminal, quasi-criminal, or traffic violations in Municipal Court. As such, hire an excellent criminal defense attorney to help you out of the mess. The odds of a second chance to gain the judge’s trust are better with a criminal lawyer who has handled many cases like yours in the past and continuously has success lifting and handling warrants statewide in NJ. Call 973-524-7238 for a free consultation regarding your failure to appear as soon as you receive notice or become aware that you missed a court date. The sooner you get the matter cleared up, the better the odds of not getting arrested when you least expect it. Whether it be a town in Morris County such as Dover, Morristown, Denville, Roxbury, Parsippany, or Hanover, or another community in surrounding New Jersey areas, connect for defense counsel’s assistance today.

If a judge ordered you to pay alimony and you fail to pay it, you may be in contempt of court. More often, a spousal support order goes unpaid because someone has difficulty maintaining employment or becomes ill. But sometimes, the bitterness between divorcing spouses is destructive. As a result, the spouse ordered to pay support refuses to pay, even after a family court judge orders them to pay the support and any support arrears. A judge will typically give a spouse who violates an alimony order a chance to fulfill their obligations and will not immediately hold them in contempt of court for not paying support. But after a second or third chance, a court may find a non-paying spouse in contempt of court. Other common contempt of court situations occur when a domestic violence case defendant violates a restraining order, and disobeying a court summons is also contempt. If a judge declares you in contempt of court in New Jersey, know that the penalties for contempt of court can be harsh. They mean to punish those who intentionally violate court orders. In fact, New Jersey makes contempt of court a criminal offense.

Defining Contempt of Court Offenses

New Jersey law defines criminal contempt as willfully disobeying a court order, interfering with the execution of a judicial order, or interfering with the jurisdiction of a court, administrative agency, or investigation unit. The offense is outlined in section N.J.S.A. 2C:29-9 of the criminal statutes.

To Prove Criminal Contempt,

A prosecutor must supply evidence to show that the defendant intentionally defied a valid written or oral order that they knew existed and applied to them. By not complying with the order, they are in contempt of court. In the case of interfering with the execution of an order, the prosecutor must prove that a defendant knew of the valid order and yet purposely hindered, obstructed, or impeded the implementation of a judicial order. Similarly, the prosecutor must prove the defendant knew of the court, administrative agency, or investigation unit having jurisdiction over a person or entity and yet purposely interfered with or otherwise hindered or obstructed the exercise of jurisdiction by the court, administrative agency, or investigation unit.

What is Considered Contempt of a Court Order

A defendant purposely defies an order, hinders execution of an order, or exercises of jurisdiction when they act with design or with knowledge and certainty that their actions will cause an intended result. Thus, a defendant who defies a restraining order forbidding them to contact the plaintiff may be in contempt when they intentionally text the plaintiff with full knowledge that they must not do so. Most often, contempt charges arise in the context of temporary restraining orders or final restraining orders for domestic violence or no contact orders resulting from assault cases. For example, a domestic violence incident may result in one person getting a restraining order against the other to keep them away from the victim’s home or work. Family law court orders are other familiar contempt sources for child support, asset distribution, property division, or spousal support agreements and orders. You can also be in contempt for failing to show up for a court hearing or respond to a court summons.

Other instances of contempt are misbehaving in court, disrespecting a judge during a court session, or otherwise acting disrespectfully during a court session. Thus, a person accused of crimes and facing criminal charges via summons or warrant complaint may be in contempt if they fail to appear in court for their scheduled court date. The contempt that occurs when an individual displays inappropriate behavior in court, like yelling obscenities or not following court rules, is direct contempt. The contempt happens in front of a judge. Indirect contempt occurs outside the courtroom, such as when someone defies a stay-away order, which requires testimonial proof that the contempt occurred.

Criminal Penalties for Contempt Charges

Contempt often occurs in the context of a civil case. As such, defying a support order in a family law divorce, or disobeying visitation orders or other divorce judgment orders are matters of civil contempt. A civil court could order the offending party to pay fines or make financial reparations to the victim of contempt. Alternatively, a judge can sentence a defendant convicted of contempt to jail. Though they may arise in a civil context, the consequences of defying a restraining order in a domestic violence case or any of the courts’ orders are criminal in nature. Criminal contempt, if proven, can lead to imprisonment and heavy financial penalties.

The criminal penalties for a contempt charge range depending on whether the defendant has been charged with a disorderly persons offense or fourth degree indictable crime. For a disorderly persons offense conviction, the defendant could spend up to six months in jail and pay up to $1,000.00 in fines. However, a fourth degree crime conviction could result in up to 18 months in prison and a $10,000.00 fine. A judge could also order community service, license suspension, wage garnishment, and restitution payments to the victim.

What to do if You Have been Charged with Contempt in New Jersey

Since you could go to jail or prison and have a criminal conviction on your record, you should find an experienced criminal defense attorney who regularly handles contempt cases and knows how to successfully defend you in a court of law. Putting yourself in a position to be convicted is ill-advised, particularly if your contempt charges are based on an alleged violation or a protection order. If you have been charged with criminal contempt of court, speak with a dedicated criminal defense lawyer today and find out what can be done to protect your best interests. Call 973-524-7238 or request a free consultation online.

Have an Active Warrant in New Jersey?

Whenever you have a deadline to resolve a court legal matter, like paying a ticket or appearing in court for a scheduled hearing, you run the risk of daunting consequences for missing a due date. As such, if you fail to show up at your DWI trial in municipal court, a judge can execute, or sign, a warrant for your arrest from the bench, meaning in the courtroom where you were supposed to be (NJ Court Rule 7:2-3). However, the judge may execute a bench warrant for other reasons, such as failing to show up to your arraignment, committing a parole or probation violation, violating bail conditions, falling behind on child support payments, and failing to comply with a court order, which is considered contempt of court. All defaulted court obligations come with the risk of arrest by a bench warrant.

What Makes a Bench Warrant Different

A judge executes a bench warrant when you fail to show up for a scheduled court date, whether to pay fines or comply with an order. It differs from other types of warrants for arrests or searches. A court issues a summons and warrant, or arrest warrant, to arrest one indicted for a crime or after a finding of probable cause that the named defendant prepared for, or participated in, a crime. The arrest order or search and seizure order must be issued after a judge considers proof that the warrant is necessary. But law enforcement may or may not pursue a warrant for arrest right away, while a bench warrant remains ready to use when they encounter the defendant named in the warrant.

Do bench warrants expire?

The bench warrant is directed to law enforcement to arrest a defendant and remains executed until the named party is taken into custody, the judge recalls the warrant, or the defendant fulfills the conditions of the warrant. And, to motivate a defendant to come forth and take care of their outstanding fines, child support arrears, or missed court appearance, a judge commonly suspends their driver’s license also. Thus, the court notifies the defendant of their suspended license, which remains suspended until the defendant surrenders to the court or takes care of the underlying cause of the warrant. A court can, however, voluntarily reverse the driver’s license suspension for a good reason.

How can you get a bench warrant removed?

A judge may retract the bench warrant for good cause. Perhaps you did not know the order existed. You may not know that a bench warrant for your arrest exists until you encounter the police. For example, the police may stop you in your car for speeding, rolling through a stop sign, or making an illegal lane change. Once you give them your license, registration, and insurance, the officer typically runs your license through a database where outstanding warrants for your arrest appear. If you have an open order for your arrest, the police arrest you on the spot and potentially impound your car unless a passenger or other individual can drive the vehicle to your home.

Once charged, you may stay in jail until a judge releases you. So, if you fail to pay a ticket, the judge may let you go after paying the ticket. However, if you were unable to appear at a hearing, the judge can decide whether to let you go pending the rescheduled hearing with or without bail conditions or some other guarantee of your return to court on the scheduled day. If you failed to appear at a hearing because of a new mailing address, or you forgot, confused the date, had an emergency on that date, or other reasons, the court may recall the warrant and allow you to reschedule the hearing and appear.

How to avoid a bench warrant being issued if you have to miss a court date

Despite life being unpredictable and fast-paced, it is generally never a good idea to fail to appear for a scheduled court date. There are very few reasons that the court considers valid in these cases, and if you are trying to resolve your case in the best manner possible, you should virtually always show up when required. As a matter of course, it is best to advise the court prior to the hearing or at least on the day of the hearing if you must miss your court date. In that way, the court does not suspect you of flouting the law by blowing off the hearing. If you have representation, an attorney can make that call and reschedule your hearing for you for valid reasons, if possible. They can also appear for you on the scheduled date to explain to the court why you cannot appear. The court may or may not accept your excuse, but the court is not as likely to issue a bench warrant if your attorney appeared for you rather than no one appearing on that date.

What if your bench warrant is based on failure to fulfill conditions of a court order?

Your attorney may also help you get the bench warrant dismissed if you failed complete a court-ordered task or attend a hearing. At a hearing on recalling the bench warrant, your attorney can explain to the court why you missed your deadline to appear or perform a task, like pay child support. The court may ask for proof then or reschedule the hearing you missed or extend the date for you to complete whatever needs to be performed to fulfill your obligations. If you failed to pay support or are in contempt of court, the judge may give you time to file the appropriate motion in the proper court to address the underlying cause for being summoned to court. That being said, you should not expect the warrant to be lifted without you satisfying the court-ordered conditions.

Likewise, if you have a pending contempt charge based on a violation of a restraining order or another offense, you will need to defend against the underlying criminal charges in court to avoid facing a conviction and the serious penalties associated therewith. Keep in mind, violating a restraining order resulting in a contempt charge can lead to anywhere from 6 months in jail to 18 months in state prison, among other severe consequences. If you have been charged with contempt of contempt, you should immediately seek counsel from an experienced criminal defense lawyer who can protect your rights and minimize or circumvent the repercussions you now face.

What to do if you have an outstanding warrant for your arrest in Morris County and New Jersey

If you have an outstanding bench warrant, you not only risk arrest and jail, you also lose your driver’s license for a time, risk having your parole or probation revoked, and have a criminal charge on your record that may prevent you from getting a job, living where you want to live, and more. The consequences for an outstanding bench warrant may be devastating. Do not wait until you get arrested to take care of an outstanding bench warrant. And even if you do get arrested, you will need the help of a criminal defense attorney who handles bench warrants and detention hearings all the time.

Contact a seasoned criminal trial lawyer who has represented manifold clients facing warrants and criminal charges of every degree in courts across New Jersey for years. Do not defend yourself alone; seek the legal counsel of an experienced lawyer today. Call 973-524-7238 to discuss your case in a free consultation.

New Jersey’s criminal code classifies crimes by degrees and divides all crimes into indictable offenses, disorderly persons offenses, or petty disorderly persons offenses. The crime degree corresponds to the severity of the crime and its commensurate punishments. For instance, those convicted of first-degree crimes may serve a 20-year prison term and pay up to $200,000.00 in fines. Second, third, and fourth-degree crimes come with prison sentences of up to 10 years, 5 years, and 18 months, respectively. In addition to prison, indictable crimes carry high fines.

Moreover, if you commit one of the most egregious crimes, first and second-degree crimes, you can expect to serve time in prison. In other words, you are in for an uphill battle to get the prosecutor or judge to lower the sentence from prison to probation because first and second-degree crimes come with a presumption of incarceration. However, even if the state accuses you of committing a second-degree crime, your charges might be downgraded to a third-degree crime. And third-degree crimes do not come with a presumption of prison. The Superior Court prosecutor (all indictable crimes resolve in superior court) may charge you with the highest possible crime, but that does not mean you will be convicted of that crime. An experienced criminal defense attorney might get the prosecutor to agree to charge you with a lesser offense.

How do Felony and Disorderly Persons Charges get Downgraded?

Of course, your lawyer might first attempt to get the charges against you dismissed if the prosecutor’s evidence against you is weak or weakened by police misconduct that violated your constitutional rights. Police do make mistakes or take shortcuts to make an arrest. When that happens, skillful legal counsel may challenge the legality of the arrest or any evidence obtained in an illegal stop or arrest. An attorney may file a motion to suppress the evidence that the police obtained illegally, so it is not used against you to prove that you committed a specific crime. If a judge grants the motion to suppress, this may lead the court to dismiss a case or entice a prosecutor to accept a better plea bargain. Often, the prosecutor agrees to a plea for lesser charges, whereby the defendant pleads guilty to get a lighter sentence and a downgraded crime.

Reducing a Charge from an Indictable Crime to a Disorderly Persons Offense

A prosecutor may dismiss a case they cannot successfully prosecute or enter into a favorable plea agreement with the defense. Barring a dismissal, the next priority in defending a client may be to convince the prosecutor to downgrade the charges based on the same grounds, namely, holes in the prosecutor’s case. For example, a defense attorney may offer that their client’s third or fourth degree theft charge should be downgraded because the offense resulted in no damage to the victim’s property, and the items taken were valued at just over $200.00. The threshold for a petty theft crime, a disorderly persons offense, is $200.00. If the defendant has a clean criminal record, the prosecutor may agree to downgrade the crime to a lower offense. So, a defendant charged with third-degree theft of movable property may have the charge reduced from an indictable offense to a disorderly persons offense. Third degree convictions come with a possible five-year prison sentence. In contrast, petty theft results in a maximum of six months in jail and a higher probability of a first-time offender getting a conditional dismissal or probation rather than jail time.

Plea Agreements to Lesser Charges to Avoid Trial

The negotiations between prosecutors and defense attorneys can be complex yet creative. For a defendant charged with multiple crimes, a defense attorney may get the prosecutor to drop some charges and downgrade others in exchange for guilty pleas to crimes the prosecutor feels they can successfully prosecute. If a prosecutor believes they can win a case, they may be less inclined to bargain, but no set of facts presented to a jury is guaranteed to be successful. Prosecutors know this and so may agree to concessions in exchange for certain pleas. Trials are time-consuming, stressful efforts for all involved. When 12 jurors decide guilt or innocence, the outcome is never without risk. Jurors come to cases with their perceptions, prejudices, and experiences. Subjective factors like the attitude of either attorney or a witness may influence their decision. Even experienced prosecutors risk losing, and even with cases that seem likely to win. Thus, prosecutors often negotiate plea agreements instead of trials.

A defense attorney may persuade the prosecutor to downgrade a crime if the crime is a borderline indictable offense and disorderly persons. Other crimes, like shoplifting or drug possession, are graded by value and amount thresholds, so the prosecutor may be more inclined to downgrade them, depending on the circumstances and a defendant’s actions. A defendant who attempts to mitigate the damages of their crime, like cooperating with law enforcement, returning stolen items, or turning over drugs to the police, may induce the prosecutor to agree to a downgrade.

Preventing a Criminal Conviction through Diversion Program or Municipal Ordinance

These same considerations may result in another downgrade of sorts, the Pre-Trial Intervention Program. A first-time offender, typically charged with a third or fourth-degree crime, may avoid prison by completing the PTI program. When it comes to felony offenses, some may also result in probation, community service, or PTI alternatives, depending on the circumstances. A defendant who completes a diversionary program avoids going to jail and prevents having a criminal conviction on their record. And in municipal court, the prosecutor may agree to downgrade a disorderly persons offense to a municipal ordinance to avoid jail and the defendant having a criminal record. This is common in cases such as disorderly conduct.

Talk to a Morristown Criminal Attorney about Downgrading Your Charges

All crimes and offenses have consequences. Even beyond fines and jail time, you have a record that may hinder your future employment and housing prospects. As such, you do not want to face a prosecutor without a solid criminal defense attorney to help you reach the best outcome, considering your circumstances. You may not believe that you have a chance to avoid heavy consequences, especially if your charges include a felony crime. Still, your attorney may be able to get the charges downgraded so that the presumption of incarceration no longer applies to your conviction, and there may be facts and circumstances enabling your attorney to argue for a lesser sentence or probation. Contact a criminal defense lawyer in Morris County for advice and assurance. You can access a free consultation and speak with an experienced attorney by contacting 973-524-7238 anytime 24/7.

Child abuse is unquestionably a concern for the criminal court and any person found guilty of such an offense will be facing very serious consequences. Under New Jersey Code Title 9, specifically statute N.J.S.A. 9:6-3, any parent, guardian, or person having the care, custody or control of any child, who shall abuse, abandon, be cruel to or neglectful of any child shall be deemed to be guilty of a crime of the fourth degree. Note that this particular section of the New  Jersey Code falls outside of the realm of the typical criminal statutes. The primary criminal statute that governs child abuse cases is N.J.S.A. 2C:24-4. However, the charge is not titled child abuse but rather, endangering the welfare of a child. The main thrust of the statute is to punish and guard against sexual offenses and other acts that cause harm to a child.

Notably, the first section of the statute reads that any person who has or assumed the responsibility of care over a child who engages in sexual conduct that would impair or debauch the morals of a child is guilty of a crime of the second degree. There is also a provision in the law that states that any person having a legal duty of care or assumes responsibility of care who causes the child harm that would make the child an abused or neglected child as defined by Title 9 is guilty of a crime in the second degree. You can see the connection and overlap between these two laws, both of which may apply to a child abuse or neglect case. Let’s examine the state’s child endangerment law and how it applies to parents and legal guardians who have been accused of child abuse or neglect in New Jersey. 

There are three major components to the New Jersey child endangerment law.

Legal Duty of Care

The first component is whether the person being charged had a legal duty to care for the child or assumed the responsibility of care. Legal duty of care can be established if the defendant is the minor’s natural parent, adoptive parent, foster parent, or stepparent. Assumed care is not as straightforward. The facts and circumstances of the relationship need to be thoroughly evaluated before this element of the offense can be proven. Generally, a person who supervises the child on a regular and continuing basis over extended periods of time, and engages in matters that are typically committed to the child’s parents would be deemed to have assumed the reasonability of care. For instance, a babysitter or coach tends to fall into this category. However, an individual who only assumed temporary, brief or occasional caretaking functions will probably not be fit into the statutory definition.

Sexual Conduct

The second major element of the offense is whether the defendant engaged in sexual conduct that would impair or debauch the morals of a child. The statute does not specifically define what sexual conduct is and what impairs the morals of a child means. Similarly, our case law and jury instructions do not provide much guidance either. Our courts’ decisions and jury charges provide that sexual conduct which would impair or debauch the morals of the child is behavior which tends to corrupt, mar, or spoil the morals of a child. Again, the language is very vague and uninformative.

Accordingly, each case needs to be examined separately and the facts and circumstances of every event need to be scrutinized. In some cases, the alleged actions would clearly violate the statute. For example, forcing a minor to engage in intercourse or fellatio would certainly be deemed a sexual act and moreover, would unquestionably impair the morals of a child. However, there are many other circumstances where the end result is not very clear. For instance, if an angry and vengeful ex-spouse calls the police and reports that her ex-husband is bathing with their 3-year old daughter. Under our law, it is very difficult to determine if the parent would be found guilty. If the State can show that the parent engaged in some form of sexual conduct, a conviction may be warranted. However, the simple act of nudity is unlikely to secure a guilty verdict.

Harm or Risk of Harm

The third component of the endangering the welfare of a child law is the exposure of harm to the child. Like the first section of the statute, there are two major elements that must be proven by the State. First, there must be proof that the defendant was in a caretaking position and second, there was a criminal act. However, under this part of the statute, the act is not sexual in nature. Rather, the law turns to our child abuse statute found under Title 9, which, in short, defines child abuse as causing harm to a child or allowing a child to be exposed to a substantial risk of harm.

Similar to the sexual component of the statute, the child abuse section can be imprecise at times. For example, if a parent is beating their child with a belt and leaving welts across their back, such conduct is undeniably criminal and violates the statute. However, if a child is smacked across the face, some would say that such conduct is not an acceptable form of punishment but nevertheless, it may not rise to the level of criminal culpability. Another example is leaving a child unsupervised. If the child is 16-years old and is left home alone for a few hours, that should not be prosecuted. On the other hand, if the child is 10-years old, that may be sufficient for a conviction.

Penalties for Second Degree Endangering the Welfare of a Child

Endangering the welfare of a child is a more serious charge for a parent or guardian or someone else who has assumed legal responsibility for the child involved in the offense. In these situations, child endangerment is a second degree crime. If convicted, a person is faces 5 to 10 years in prison and a maximum fine of $150,000. Further, sexual conduct charged under the statute requires mandatory sex offender registration per the terms of Megan’s Law in New  Jersey. On top of that, these second degree felony charges are considered outside of the realm of Pre-Trial Intervention as a possible resolution to avoid prison and a conviction on your criminal record. Lastly, these charges are deemed ineligible for expungement.

Have You Been Charged with Endangering the Welfare of a Child in Morris County, NJ?

The consequences of a second degree endangering the welfare of a child offense based on allegations of sexual conduct, abuse or neglect of a child for whom you have a legal responsibility can be catastrophic. Criminal charges of this kind can cause irreparable harm to your reputation, your ability to parent your children, and jeopardize your freedom for up to a decade. Clearly, this is not something to be taken lightly. If you are facing charges for endangerment, get in touch with an experienced criminal defense attorney for defense in Morris County areas such as Morristown, Denville, Dover, Parsippany, Madison, Rockaway, Roxbury, and Mount Olive. For a free consultation with a lawyer who can discuss your specific case and available defense options, contact 973-524-7238 anytime.

Analyzing the Cosby Case from a Due Process Perspective

When the Me Too movement arose in 2006, the first face of the movement was Harvey Weinstein, the Hollywood producer whom over 80 women accused of sexual assault and similar sex crimes. While he was eventually prosecuted and imprisoned, the movement’s second big-name accused was Bill Cosby, famed actor and comedian. Over 50 women came forth to announce they too were victims of sexual assault by Cosby, often after he drugged them. One such woman, Andrea Constand, a Temple University women’s basketball director of operations, first accused Cosby of sexual assault that occurred at his Pennsylvania home after drugging her. She claimed he sexually penetrated her among other sexual acts. After her public accusation, dozens more women came forth with their accusations. In 2018, a Pennsylvania jury found Cosby guilty of three counts of aggravated indecent assault on Constand, and he was sentenced to a minimum of three to ten years in state prison.

What Happened Next

After serving just under three years, Cosby was recently released from prison after the Pennsylvania Supreme Court overturned his conviction. Prior to the ruling, Cosby’s appeal in the Superior Court was denied. In deciding to overturn the conviction, the Pennsylvania Supreme Court cited Cosby’s due process rights had been infringed upon, and thus, the conviction was unconstitutional.

The Basis of the Decision

The decision hinged on an announcement by former Pennsylvania prosecutor Bruce L. Castor, Jr. Castor, which stated that the state would not prosecute Cosby for sexual assault in the Constand case. Castor later asserted that his statement was meant to induce Cosby to speak freely in the civil matter. Believing he would not be criminally prosecuted, Cosby later made self-incriminating statements about drugging women for sex during a sworn deposition in the civil case that Constand brought against him. The civil suit was later settled without going to a trial. Subsequently, before the 12-year statute of limitations on Constand’s case was up, the successor prosecutor to Castor brought charges against Cosby, which led to his conviction.

The Pennsylvania Supreme Court judges stated that the former prosecutor’s “non-prosecution agreement” barred the successor prosecutor from bringing charges against Cosby in the Constand case. They further stated that the case could not be retried—the reason for the decision hinged on Cosby’s Fifth Amendment right against self- incrimination. The Fifth Amendment protects an accused individual against forced self-incrimination, affords an accused the right to due process, and protects citizens from being tried twice for the same crime, known as double jeopardy. The Amendment assures that those accused of a crime have due process, meaning they are treated fairly and not forced or tricked to confess statements that could be used as evidence against them. It pertains to fair policing and prosecution practices, especially to preserve the integrity of the judicial system.

Essentially, when Cosby was assured he would not be prosecuted, he incriminated himself on record in a civil suit, and this incriminating evidence was used to prosecute him criminally. Such factual circumstances could be perceived as deceptive practices by the prosecution. In fact, the Supreme Court judges stated in their written opinion that it is fundamentally unfair to induce a defendant to rely on a prosecutor’s decision not to prosecute and then turn around and prosecute him after he gave up his Fifth Amendment right in order to settle a civil suit. Once that evidence from the civil suit was used against him in a criminal trial, the prosecution violated his right to assert his protections against self-incrimination under the Fifth Amendment.

This reasoning also applies to explicitly stated assurances by the prosecution during plea negotiations and discussions pertaining to the plea agreements in criminal cases. Plea agreements are typically made between prosecutors and defendants to obtain a guilty plea or immunity against prosecution in exchange for testimony against another defendant. Courts have repeatedly found that defendants should be able to rely upon statements by the prosecution during these proceedings in order to make conscious, reasoned decisions in their interests.

What the Court’s Reversal Affirms about Due Process Rights in Criminal Cases

Much of the public views Cosby’s release as a travesty, given the overwhelming number of accusations and evidence presented in the case against him, and yet the Pennsylvania Supreme Court faced a tough decision in this case. The decision to reverse Cosby’s conviction sparked heated debate that would cause many engaged in the public discourse to claim a mere technicality allowed a criminal to go free. However, had the court ignored Cosby’s argument and confirmed the conviction, the court may have been perceived as endorsing prosecutors who dupe defendants into giving up their constitutional rights, only to later convict them. The decision weighed the integrity of the judicial system and the Constitution against the singular case of releasing a man convicted by a jury. And so, the decision enforces due process rights of the accused by reinforcing the rules by which prosecutors must obtain convictions.

Had Cosby’s attorneys not persisted and understood the intricacies of the law, he would still be imprisoned serving out his three to ten years. Because he is a celebrity, politics and public opinion gloss over the subtleties of the law, the judicial system, and the Constitution. However, ordinary citizens face similar travesties of justice, with overreaching prosecutors that succeed in convicting those who do not belong in prison, technicality or not. Some prosecutors believe their job is to secure convictions, but that is only one part of their role in the criminal process. They are also representatives of the judicial system and the law. Criminal defense attorneys also protect, not only those accused of crimes, but the entire judicial system when they insist that the agents of the state follow the law.

Contact a New Jersey Defense Lawyer for Help Protecting Your Rights

No matter who you are, you have a right to a fair trial and due process. An experienced criminal defense lawyer, who is wise to what the prosecutors and judges must do to protect your rights and what they must not do, is there to ensure that you are not unjustly prosecuted or imprisoned. If you are accused of any crime in the state of New Jersey, be sure to reach out to discuss your case with a New Jersey criminal defense attorney on our team in a free consultation. We can make sure your rights are preserved. Call 973-524-7238 today for answers and legal assistance.