Video Course Evaluation Form. Atty ID number for Pennsylvania: Name of Course You Just Watched

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1 Garden State CLE 21 Winthrp Rad Lawrenceville, New Jersey (609) fax Vide Curse Evaluatin Frm Attrney Name Atty ID number fr Pennsylvania: Name f Curse Yu Just Watched Please Circle the Apprpriate Answer Instructrs: Pr Satisfactry Gd Excellent Materials: Pr Satisfactry Gd Excellent CLE Rating: Pr Satisfactry Gd Excellent Required: When yu hear the bell sund, write dwn the secret wrd that appears n yur screen n this frm. Wrd #1 was: Wrd #2 was: Wrd #3 was: Wrd #4 was: What did yu like mst abut the seminar? What criticisms, if any, d yu have? I Certify that I watched, in its entirety, the abve-listed CLE Curse Signature Date Garden State CLE, 21 Winthrp Rd., Lawrenceville, NJ fax

2 GARDEN STATE CLE LESSON PLAN A 1.5 credit curse FREE DOWNLOAD LESSON PLAN AND EVALUATION ETHICAL ISSUES FOR MUNICIPAL PROSECUTORS With Russ Cherks, Esq. And featuring Rbert Ramsey, Senir Instructr Prgram descriptin Despite the high-pressure, high-vlume nature f the respnsibility, the municipal prsecutr must still accmplish individual justice in individual cases and d s in an ethical manner. This 1.5 ETHICS credit CLE will explre the ethical challenges that municipal prsecutrs cnfrnt in accmplishing this respnsibility.

3 Garden State CLE 2 Ethical Issues fr Municipal Prsecutrs I. Intrductin Russ Cherks, Esq. rcherks@dmmlawfirm.cm Phne Municipal Prsecutr years; Hamiltn Twnship (Mercer Cunty), Brdentwn Twnship, Bass River (Washingtn Twnship, Burlingtn Cunty) Different types f peple and different cases depending n jurisdictin Bass River has n lcal plice department Hamiltn Twnship largest in Mercer Cunty, turnpike runs thrugh, NJSP and aggressive lcal plice department Practicing law fr 32 years II. III. Ethical Issues fr Municipal Prsecutrs Originally n legal authrity fr municipal prsecutrs nt until 1990 that there was a rule fr plea bargaining and cmmentary by Supreme Curt devted t addressing psitin f municipal prsecutr Prsecutr is nt rdinary advcate t d justice, nt seek cnvictins d individual justice in individual cases must have discretin t accmplish this task Prsecutrs have ability t d what is right in the individual cases must lk at prfs beynd a reasnable dubt if element f prf missing then reslve case by plea r dismissal as ppsed t trial Sme prsecutrs may get peple t plead guilty t things that the prsecutr knws cannt get cnvictin at trial vilatin f RPC 3.8 (d individual justice, bligatin t disclse defense t defendant n matter if aware r nt) Analyze each case t see if prf beynd a reasnable dubt Advice t yung attrneys In re Segal (130 NJ 468 (1992)) clearly indicates that prsecutr is respnsible fr representing state f NJ and making it adequate t represent State s interests prsecutrs must be prepared Preparing fr calendar: Feel fr what typical calendar will be with experience

4 Garden State CLE 3 Ethical Issues fr Municipal Prsecutrs Yu shuld knw thrugh cmmunicating with curt staff that there is significant matter cming up and need time t prepare Shuld cmmunicate with curt staff and plice t prepare in advance Knw what is cming in the future Average calendar will have the usual vilatins that yu see n a daily basis withut advance preparatin talk t witnesses n that day and read plice reprt Any given ticket statistical likelihd f trial is extremely lw a factr f the vlume f cases as well as the mst effective way t reslve cases individual justice fr individual cases Prsecutrs must have a tlbx f infrmatin Traffic cases: Plice reprt (if accident) injuries? Serius injuries which wuld require the cunty prsecutr t review?? May rely n cnversatins with defendant and plice if dn t have reprt based n level f experience Ask every witness if there were injuries dn t rely strictly n the plice rept and fficer indicating n the reprt that there were injuries Sme jurisdictins cmplete a particular sheet when there is an accident with injuries and this is a separate dcument frm the accident reprt Legislature gives respnsibility t infrm the curt f injuries but prsecutrs rely n plice fr accurate infrmatin Accident with death r serius bdily injury municipal curt is statutrily divested f jurisdictin must g t superir curt until such time as superir curt remands it back t municipal curt Driver s abstract need when dealing with serius MV vilatin r as needed Need abstract fr unsafe peratin (NJSA 39:4-97.2) t see when persn had last unsafe peratin t determine penalties and pints

5 Garden State CLE 4 Ethical Issues fr Municipal Prsecutrs When there is smene wh has a really bad driver s recrd, must fashin an apprpriate plea individual justice in individual case There are standard plea ffers that are made but must determine smene s driving histry Must use driving histry t determine where the driver is cming frm wh is asking fr a particular plea r in fashining an apprpriate plea ffer ethical duty Plice Officers n standing t effect utcme f case, input f plice varies frm each twn/municipality each prsecutr deals with plice differently Experience will dictate whether yu need t reach ut t plice fficer, i.e. minr ffense but many tickets means there may be an issue and plice shuld be cntacted Plice receive ntice f case scheduling and therefre can cntact the prsecutr if need be Prsecutr is nt an advcate fr plice, but need plice t accmplish the jb and wrk with them in every case Office input give chance t tell prsecutr what he feels needs t be dne, if fficer takes that time t participate, then prsecutr will listen but that desn t mean that prsecutr will fllw their recmmendatins State v. Marsh, 290 N.J. Super. 663 (App. Div. 1996) plice have n rle t play in plea bargaining prcess executive branch functin within purview f prsecutr Plice are nt final arbiters f what happens in the case prsecutr cannt give up discretin t plice must be sensitive t fficer s input Prsecutr makes final decisin, but if fficer desn t agree prsecutr shuld explain why dn t discunt fficer s feelings Prsecutrs shuld educate plice fficers abut the law especially the Cnstitutin adpted t prtect peple frm gvernment and plice are the

6 Garden State CLE 5 Ethical Issues fr Municipal Prsecutrs gvernment certain standards must be met and plice are nt adequately trained and laws are cnstantly changing Experienced attrneys knw what case is wrth and shuld cme t curt with a clse idea f what the plea wuld be Relatinship with victims sensitive t feelings f victims, victims f traffic ffenses as well as dmestic vilence r ther criminal ffense Prsecutr has discretin even if victim des nt agree Shuld listen t victim but ultimately it is prsecutr s duty t decide hw case shuld be reslved victim has a right t bject t the plea n the recrd Prsecutr shuld utline basis fr plea r nt able t plea s that there is individual justice in individual cases, i.e. injuries, etc. Pace f calendar dictates hw much time a prsecutr can put int each case nature f system Crss cmplaints prsecutr is still able t dismiss cases when there are crss cmplaints/5 th amendment issues; peple think prsecutr is their lawyer when there are crss cmplaints peple dn t understand the ramificatins f cnstitutinal issues; Theretically can prsecute each persn individually Lk at plice reprt t get relevant facts lk at injuries Prsecutr can dismiss cmplaint that is crss cmplaint filed after because frivlus Judges what happens when judge will nt dismiss a case even with state s applicatin t dismiss based n prf issue can t plea bargain drunk driving cases (curt rules) Can prsecutr refuse t prsecute? unlikely that situatin wuld arise Prsecutr calls witness such that jepardy attaches but dn t put n case? nt likely t

7 Garden State CLE 6 Ethical Issues fr Municipal Prsecutrs happen because ethical duty t g t trial effectively N basis that judge can tell prsecutr hw t d their jb Times when prsecutr and judge take unreasnable psitins Dmestic Vilence Cases Victim is usually in ffice t drp charges must tell victim that it is prsecutr s duty t determine what transpires with regard t case Case may end up being dismissed but nt n arraignment day Need cling ff perid, sme substance abuse r anger cunseling What happens when parties just have a bad night children, married fr a lng time, etc.? parties want t recncile, prsecutr has ability t prsecute ver parties desire; but prsecutr must lk at situatin lk at histry f relatinship prir cases?? Mercer Cunty requires municipal prsecutrs t d search f family curt system t insure that there is n histry. Sensitive t desire t recncile, but als sensitive t fact that victims f dmestic vilence are nt invlved in nging situatin t best f ability determine that victim s reasn fr wanting dismissal is truly because they believe that it wn t happen again Need t spend time with victim t make best decisin t reslve the case Cncern fr health and well being f victim and their future Prsecutr can nly try his/her best t determine hw parties are ging t be mving frward; get cunseling; adjurn case fr a perid f time t allw fr parties t recncile if that is what is wanted Hwever under NJ law is t prtect the victim hw can yu d individual justice in individual cases when there are s many cnsideratins t make a recmmendatin t the curt

8 Garden State CLE 7 Ethical Issues fr Municipal Prsecutrs Cannt rush these types f cases best t carry cases t see if there are future issues get cunseling if needed and see where we are at after cunseling Other cases may require that defendant be prsecuted because f defendant s histry Crawfrd v. Washingtn, 541 US 36 (2004) has hampered the ability t prsecute DV cases because cannt use hearsay exceptins that were helpful; nw need victim t testify Dealing with Imperfect Infrmatin and Adversaries Part time prsecutr but must prepare cases t best f ability D yu expect that the defense attrney will bring in infrmatin that wuld help t reslve case with the best result? i.e. prir ut f state DWI ffenses defense attrney knws but prsecutr des nt knw Defense attrneys shuld assume prsecutrs knw nthing abut the case hpefully yu are mistaken but if nt be prepared t educate prsecutr with infrmatin n case that can assist in blstering yur client s case 5 th amendment prtectins exist thrugh sentencing when it cmes t defense cunsel telling the prsecutr f prir cnvictins, etc. Defense cunsel can say dn t ask me abut prirs it is yur jb as a prsecutr t find ut Prsecutr must get abstract r criminal histry t insure accuracy at sentencing and in plea negtiatins Attrneys cannt misrepresent t the curt Ethically prsecutr must turn ver Brady materials withut hesitatin defense attrneys have n duty t turn ver inculpatry evidence Prirs are a matter f public recrd n attrney-client privilege; and nt related t case can defense attrneys claim attrney client privilege fr nt telling prsecutr abut prir ffenses?? Prsecutr is mving party at sentencing and must prvide that infrmatin t the curt Defendant has 5 th amendment right nt t tell

9 Garden State CLE 8 Ethical Issues fr Municipal Prsecutrs In re Seelig, 180 NJ 234 (2004) did nt address this particular issue Drunk Driving Case Prsecutr knws that case will nt be tried Time t prepare can be significant depending n facts f case, i.e. number f witness, amunt f evidence, lab reprts, arresting fficers, experts; subpenas, insure dcuments are turned ver in a timely manner Fairly substantial perid f time t prepare fficer regarding dcumentary testimny, etc. Lk t hw lng fficer has been n the jb and whether they have experience with testifying With yung fficer g thrugh entire case frm beginning t end t prepare IV. Discvery State v. Prickett, 240 NJ Super 139 (App. Div. 1990) made clear that prviding discvery is strictly a prsecutrial functin; curt staff has n rle in prviding discvery Hamiltn Twnship plice recrds department handles all discvery; prsecutr wrks with plice recrds department t prvide discvery Plice recrds peple will handle initially Ultimately prsecutr is respnsible NJSP will nt prvide discvery t anyne except the prsecutr Will turn ver anything that prsecutr can get in rder t insure accurate discvery is prvided State v. Maricic, 417 NJ Super. 280 (App. Div. 2010) prsecutr s bligatin t turn ver necessary dcuments, repair recrds in pssessin f the state if AGs ffice has it, then in pssessin f the state; dn t need t g t Draeger (alctest cmpany) t get it, but if in pssessin f a state agency, prsecutr is required t turn ver V. Plea bargaining Individual justice in individual cases Must fllw statutes and law sentencing/plea that cmprts with statutes and law Sentence cannt vilate rules f curt

10 Garden State CLE 9 Ethical Issues fr Municipal Prsecutrs Must have factual basis Amending t rdinance that is pre-empted and defense is asking fr amendment t rdinance then what? Decisin shuld be made by the judge It must be raised as an issue in rder fr such a plea t be imprper r illegal If n ne is cmplaining, then is there an issue?? Utilizing rdinance fr a plea even when pre-emptin can assist in ding individual justice in individual cases VI. Wrds f advice t a new prsecutr Best way t be an ethical prsecutr Emtinally must understand that yu dn t need t cnvict everyne in rder fr plice t like and respect yu Yu will lse credibility befre the judge if yu push a case that ethically yu shuld nt pursue Need t talk t plice utside and discuss with plice yur decisin n a particular case that the plice disagree with There are difficult days when dealing with plice Need t get respect f plice fficer teach and explain what yu are ding Be familiar with ethical caselaw, RPC 3.8 get as much infrmatin abut case and then try t d individual justice fr individual cases