Right to a Fair Trial

In the recent New Jersey decision in State v. O'Brien, the Court held that the Defendant was not provided a fair trial as the judge indicated, in front of the jury, a disbelief of the Defendant and his expert witness and indicated his support of an adverse witness.

One of the rights to which a criminal defendant is guaranteed is that of a fair trial. This is one of the most basic tenets of our legal system and must not be abrogated under any circumstances. In spite of the foundataional importance of this right within our legal system, as evidenced by the facts of State v. O'Brien, it is sometimes overlooked.

The trial process is complex as it requires that evidence be set forth in a specific manner whereby each piece of evidence or bit of testimony establishes the foundation for the next. Objections must be made, if appropriate, relating to matters of evidence as well as the questioning of witnesses by attorneys. Entering into this process without full knowledge thereof is beyond difficult and is the very reason why one is entitled to counsel in any trail in which he or she may be substantially deprived of liberties. Anyone facing a matter in court should seek the assistance of counsel in order to ensure that their right to a fair trial, as well as other legal rights, are preserved.

If you have any questions regarding your rights or need legal representation visit HeatherDarlingLawyer.com.

Recent NJ Domestic Violence Cases Indicate Changing Tides

The Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq. was created in order to protect those placed in danger due to their domestic relationships. Because domestic violence was so widespread, and the consequences potentially serious if the offending party was not stopped, most allegations of domestic violence, no matter how minimal or tenuous, resulted in a restraining order against the alleged perpetrator. Although the statutes continue to serve their intended purpose for those actually needing help, over their years in existence, the statutes have also been abused as a weapon in order to gain advantage in legal matters including divorce, to tarnish reputations causing long-term legal implications and restrictions on liberties, or to remove a spouse or other resident from a home but continue their liability for expenses of said residence. Due to an ever increasing abuse of the domestic violence statutes for wrongful purposes, more recent decisions by the courts in New Jersey indicate a trend away from freely granting restraining orders without actual evidence that the behavior of the party against whom the restraining order is sought actually rises to the level required for protection under the domestic violence statutes.
The consequences of a finding of Domestic Violence against a party can be serious and permanent. Those accused of acts of domestic violence should seek counsel immediately in order to protect their rights and insure that a Final Restraining Order is not issued due to a lack of representation.
For more information or representation go to HeatherDarlingLawyer.com

Expediency

One of your rights in the Court system is a speedy trial. An important reason to be sure one has the benefit of a speedy trial is the preservation of evidence. Whether someone parked in a no parking zone because a sign was missing and they were unaware of the restriction or something much more serious, such as a 911 tape during a home invasion, it is important to preserve any and all evidence which will benefit the accused (Exculpatory Evidence).

Exculpatory evidence comes in many forms including, but not limited to, witnesses, video surveillance tapes from a bank or store, EZ pass information, blood or urine, samples of substances claimed to be narcotics, 911 tapes, video of DUI stops and arrests, voice mail messages, text, e-mail and many other forms.

Exculpatory evidence must be provided by the prosecution to the defense but it is imperative that an accused inform his or her legal counsel of all exculpatory evidence they are aware of immediately. Not only is it important in creating a theory of the case upon which legal counsel will try to exonerate the accused but it is urgent that such evidence be preserved for use in negotiations or trial. The longer the time lapse between the event in question and the defense attorney learning of the exculpatory evidence, the more likely it becomes that the evidence will be lost or altered.

Upon notification of any possible action in the legal system, an appointment should be made with counsel and all possible exculpatory evidence should be disclosed to counsel immediately in order that the best possible outcome be obtained for the accused.

Benefits of Counsel

Often times an individual will attend Court anticipating that the justince system will insure fairness on his or her behalf. To some degree this is a correct assumption however, people are also entitled to either have counsel of their own choosing, or in some cases, if they cannot afford same, they are entitled to have counsel appointed for them. Unless an individual is quite knowledgeable in the area of law involved in their matter, particularly their rights and privileges, these rights and privileges may be violated resulting in an unfair result. By way of example, although most judges in New Jersey make it a procedure to read a statement of rights to all parties in a courtroom prior to beginning any court proceedings, this is a very basic statement and will not afford an individual the knowledge required to avoid self-incrimination, disadvantageous guilty pleas, or other unfavorable results. It is always in the best interest of an individual who will appear in court to at least consult with counsel prior to such an appearance.

Criminal Appeals and Pleas

When a defendant enters a conditional guilty plea to an offense yet reserves a right to appeal aspects of the matter it is important to consider the scope of issues which may be raised on appeal. For example, a conditional guilty plea to burglary based on a motor vehhicle stop resulting in the observance of a police officer of burglary tools or stolen items in plain view in which the defendant reserves only the right to appeal whether police had reasonable suspicion of a motor vehicle offense sufficient to justify a stop. This conditional plea would not allow for defendant to raise for the first time on appeal his argument that the burglary tools or stolen items should have been suppressed because the police lacked probably cause for the motor vehicle stop. When considering an appeal one must always consider that issues not raised below and preserved may not be raised on appeal.

For more information on criminal matters please visit www.HeatherDarlingLawyer.com

Property Settlement Agreements

When preparing a Property Settlement Agreement parties to a divorce action must be sure to contemplate not only existing circumstances but also anticipated circumstances. In light of today's economic uncertainty it is common for Alimony, Child Support, and Custody and Visitation to be revisited as parties find themselves without jobs, accepting different jobs with hours that limit or expand the time they have to parent, or even moving to different parts of the country in order to obtain jobs. People who find themselves in any of these situations may find themselves looking to a Judge to determine whether they are entitled to modifications of alimony, child support, custody, parenting time, or other circumstances sucha s relocation with the children. The clearer the Property Settlement Agreement is on the matters in question, the more likely it is that the Judge hearing your matter will agree with the specified terms as a contemplated agreement between the parties. If the Property Settlement Agreement is silent on the matters in question then the Judge will have to look to statutes and case law to guide him or her in making a decision and that decision may not be what you would have bargained for.

Please visit www.HeatherDarlingLawyer.com for more information on the factors a Judge would use in making such decisions.

Facebook

When posting to Facebook, whether it's a photograph or written statement, please be aware that this matter WILL be viewed by those wishing to view your page. If you are applying to a school or a job, seeking an elected or appointed position, those who are reviewing your credentials may see the information you have posted. Think about how a potential employer would feel toward hiring you if certain pictures of you were posted. In a criminal investigation, if all of your pictures are with the co-defendants in your case, it is likely to aid the prosecution in making their case before the jury. It is fun and easy to use Facebook and MySpace in order to communicate with family and friends but remember that they are not the only ones reading what you post.

Custody and the Best Interest Standard

In matters of child custody, in New Jersey, all things being equal there is an initial presumption in favor of the mother. Although the courts favor equal parenting time, this is often impossible due to proximity of the parties' residences post-divorce, the ability of both parents to find housing suitable for themselves and the children post-divorce, work schedules, and other factors. The presumption in favor of the mother being the parent of primary residence can be overcome if the children in the event that it is in the best interest of the children for the father to be the parent of primary residence. A best interest evaluation may be undertaken including interviewing the parents and children, viewing the residences, and taking into account other factors such as the proximity of relatives who provide assistance in raising the children, ages of the children and attachment to the community, and other factors. If you are involved in a matter involving custody, always remember that the best interest of the children is what will ultimately be the basis of the Court's decision.

For more information on Child Custody in New Jersey visit www.HeatherDarlingLawyer.com

Contracts

People often underestimate the importance of contracts. In any transaction there are at least two parties involved. Although they may use the same words to discuss a matter, such as "reasonable time", "standard quantity", "substantially similar", etc., each of these terms is ambiguous and the parties may attribute very different meanings to them. In other circumstances, the parties may deal with certain terms such as price, date, and quantity, but fail to deal with other matters such as place of delivery, delivery fees, duration of contractual obligation, etc. If something later goes wrong with the relationship and there is a dispute on any of these matters, the court will look to the Contract between the parties first for answers. If the answers cannot be found wihtin the "four corners" of the Contract then the Judge will seek outside evidence and testimony and the matter will become one of "he said, she said" which places both parties in the precarious position of suffering significant loss. When entering into a transaction for a lengthy duration, a significant quantity, or a substantial price always have an attorney prepare, or at least review, the Contract to insure that you are protected and, if not, you do not enter into a bad transaction.

Troubled Times for Alimony Payments

In today's economy it is hard enough to keep a job and those big bonuses are a thing of the past for many. Unfortunately, when your income changes your bills often stay the same and it's hard to make ends meet. If you are responsible for paying alimony, it may be time to seek a modification of your alimony payment based upon a showing of changed circumstances. Often alimony is established with the assumption that earnings will continue to increase slightly over time, you will eventually feel the sting of that monthly payment a little less, and life will go on with some adjustments. In the current economy that is far from true for many. With President Obama saying that we will not see job growth catch up until at least the middle of next year, and CNN saying that it will be 6 years before we are back to the levels we were at before the massive economic downturn began in 2008 it is liklely that you will be awarded a downward modification if you can meet the required showings for the court. In New Jersey the main burden of proof is changed circumstances, and the court will also consider your former spouse's needs and ability to support themselves as well as your existing ability to pay. If you feel you qualify, and wish to avail yourself of the opportunity you should consult an attorney to file the necessary motion.

For more information on Alimony in New Jersey visit www.HeatherDarlingLawyer.com

DUI

The State of New Jersey incorporated the Alcotest as a replacement of the Breathylizer. In the short time since the Alcotest was put into use, it has been the subject of several attacks. Recently it was determined that various occurences, such as burping or vomiting within a short timeframe prior to administration of the Alcotest, can dramatically alter the reading. For that reason, individuals under arrest for DUI must be observed by at least one officer at all times for a 20 minute period of time prior to the officer administering the Alcotest.

In the event the officer administering the Alcotest fails to undertake continuous observation, the results of the Alcotest may be excluded from evidence. Visual observance of the officer(s) and any witnesses of the Defendant's physical condition may still be used to prove guilt or innocence.

Guilty Pleas

Many people make guilty pleas when offeres are presented by the prosecution for lesser sentences or probation. Often the allure of the plea offer makes the accused forget about the consequences of the guilty plea, specifically that they will now have a criminal record and that the plea will be admissable in any civil trial relating to the same matter. Although a criminal trial is something most wish to avoid, especially when the prosecutor is making statements indicating that a much harsher sentence will be imposed following a trial then the one offered in the plea agreement, if you have sufficient evidence that you are likely to be found not guilty, or perhaps guilty of only a lesser included offense, then a trial may save you from the burdens imposed upon you by a criminal record. When you are facing criminal charges, be sure to have competent counsel who can assess the facts of the case as presented by both sides and make a fair assessment of your options before accepting any plea offers.

September 11, 2009

My practice is heavily based in litigation, especially the litigation of Criminal and Family Law matters. Today I would like to remind everyone to take a moment to reflect upon the heinous crime committed against the United States of America on September 11, 2001 and to remember the victims and their families and the plight of all Americans in this ever-changing world.

Child Support

Child support is not optional and is not waivable by the parties. If you have a "deal" with your child's other parent that he or she will not seek child supoprt through the Court as long as you make payments to him or her and buy certain items for the child be careful! This is a better deal for the person receiving support than the one paying it. The Court continues to keep track of what is due. Eventually the other party will take may take you back to Court and say you were not making payments, leaving you to your proofs. Alternatively, if you are paying through probation, your balance continues to accrue, unless you and the other party agree and a Judge signs an Order indicating you are not liable to pay probation any longer.
If you wish to modify child support in New Jersey you may do so by appearing before the Family Court by way of formal Motion for Modification of Child Support. If you think you are entitled to a reduction or increase in child support payments seek an attorney who is familiar with such matters and can guide you through the calculations used and help you to get a fair result.

Restraining Order

Restraining orders are serious matters. A temporary restraining order (TRO) may issue upon a complaint stating reasonable grounds and then a hearing will be scheduled before a Judge to determine whether a Final Restraining Order (FRO) will be issued. Anyone who finds themselves facing a FRO should seek the assistance of counsel immediately. There are several components which must be proven for someone to secure a FRO against someone else. An attorney who regularly handles FRO matters is aware of the various elements required to be met and, upon discussing the facts of the case with the client, is often able to show that the client did not in fact behave in a manner which should result in the imposition of an FRO.

An FRO is permanent in NJ unless it is removed by the Court who placed it. Although FROs are removable by the party seeking them, or by the individual subject to the FRO if certain criteria are met, they prevent those who have them from enjoying certain liberties as long as they are in place.

For more information on Restraining Orders visit www.HeatherDarlingLawyer.com

Attorney Conflict

Often times the rights of an individual are inadvertently violated by thier own attorney. If your attorney has represented anyone involved in your trial before, including a witness to the case, there may be a negative impact on your trial proceedings as a result of that representation. Always insure that the attoreny you are working with checks for conflicts as soon as they are retained and then again as the names of witnesses and experts are disclosed to them. If your case is complete and you discover that your attorney had a conflicting interest in your case then you are entitled to appeal the judgment rendered in your matter.

Labor Day Weekend

It is always nice to have a long weekend, unless you are incarcerated and awaiting a first appearance in Court. If you are incarcerated after business hours you have to wait until Monday to appear before a Judge and have your charges read in the form of a first appearance. In the case of this long weekend people awaiting a first appearance will not even have bail set until Tuesday. If you or someone you know is ever incarcerated over the weekend, get a head start on your case. The prosecutor will be at your first appearance. If you have already met with your attorney and provided your attorney with the facts of your case, your attorney may be able to resolve your matter with the prosecutor sooner. Also, if your attorney knows the facts of your case and has time to prepare, they will be better able to argue for a reduced bail at your first appearance. If you have to sit in jail over the weekend, use your time wisely and begin working with your attorney to get the best possible result at your first appearance.