presence defense in New Jersey

2009In addition, the Appellate Division determined that the trial court’s “ex parte procedure,” taking- Bush’s testimony outside the presence of defense counsel, “was at variance with the full evidentiary hearings conducted ... in forfeiture-by-wrongdoing cases.” Id. at 232 , 923 A.2d 242 .

2009In addition, the Appellate Division determined that the trial court’s “ex parte procedure,” taking- Bush’s testimony outside the presence of defense counsel, “was at variance with the full evidentiary hearings conducted ... in forfeiture-by-wrongdoing cases.” Id. at 232 , 923 A.2d 242 .

1978Cf. United States v. Marshall, 377 F. Supp. 1326 , aff’d sub nom.

1978Cf. United States v. Marshall, 377 F. Supp. 1326 , aff'd sub nom.

2026"When it decides a motion to strike an expert report, a trial court may conduct a hearing under N.J.R.E. 104(a)." Ibid. at n.5 Rule 104(a) provides: In General. (1) The court shall decide any preliminary question about whether a witness is qualified . . . or evidence is admissible. ... (2) The court may hear and determine such matters out of the presence or hearing of the jury.

2019The trial court properly exercised its discretion in ordering a hearing under Rule 104(a) which provides, "[w]hen the . . . admissibility of evidence . . . is in issue, that issue is to be determined by the judge. . . . [who] may hear and determine such matters out of the presence or hearing of the jury." As our Supreme Court held in Townsend v. Pierre, 221 N.J. 36 , 53-54 n.5 (2015): "When it decides a motion to strike an expert report, a trial court may conduct a hearing under N.J.R.E. 104(a).

2013Without “a fair opportunity for interview[,]” defense counsel “could not know what the eye witnesses ... were to testify to or how firm they were in their testimony[.]” Ibid.

2013Presumably the prosecutor, in interviewing the witnesses, was unencumbered by the presence of defense counsel, and there seems to be no reason why defense counsel should not have an equal opportunity to determine, through interviews with the witnesses, what they know about the case and what they will testify to. [Id. at 188.] Although no evidence was suppressed, the court found the prosecutor’s advice to the witnesses suppressed “the means by which the defense could obtain evidence.” Id. at 189 .

2009The judge may hear and determine such matters out of the presence or hearing of the jury.”). 8 This exception—the fbrfeiture-by-wrongdoing exception to the hearsay rule— recently was addressed at length in State v. Byrd, 198 N.J. 319 , 967 A.2d 285 (2009). 9 Buda did not implicate the “tender years" exception to the hearsay rule; the trial court in Buda determined that the child-victim's hearsay statement to his mother qualified for admission as an excited utterance under N.J.R.E. 803(c)(2) and we concurred.

2009Buda, supra, 195 N.J. at 296, 949 A.2d 761 .

2009The judge may hear and determine such matters out of the presence or hearing of the jury.”). 8 This exception—the fbrfeiture-by-wrongdoing exception to the hearsay rule— recently was addressed at length in State v. Byrd, 198 N.J. 319 , 967 A.2d 285 (2009). 9 Buda did not implicate the “tender years" exception to the hearsay rule; the trial court in Buda determined that the child-victim's hearsay statement to his mother qualified for admission as an excited utterance under N.J.R.E. 803(c)(2) and we concurred.

2006Id. at 316-17 , 823 A. 2d 15 .

2006Id. at 316-17 , 823 A. 2d 15 .

2006A jury question was thus presented, and the "cause of action predicated upon a failure to provide an adequate warning [was] remanded for a new trial[,]" at which the trial court was required to charge the jury to determine whether the presence of a warning would have avoided the accident; in other words, whether the plaintiff would have "heeded" a warning "if given." Id. at 211 , 485 A. 2d 305 .

2006A jury question was thus presented, and the "cause of action predicated upon a failure to provide an adequate warning [was] remanded for a new trial[,]" at which the trial court was required to charge the jury to determine whether the presence of a warning would have avoided the accident; in other words, whether the plaintiff would have "heeded" a warning "if given." Id. at 211 , 485 A. 2d 305 .

2003The majority states in dicta that defenses such as “the presence of the warning labels, the consumer-user expectation and obviousness of danger incorporated into our Products Liability Act, N.J.S.A. 2A:58C-3a(2), and the presumption that users of consumer products will heed the warnings with respect to dangers inherent in the consumer product should be considered under the context prong articulated in Millison.” Ante at 375, 823 A.2d at 776 .

2003In Carney, supra, 701 F.Supp. at 1098-99 , the court stated, "It is not necessary for Dexter in order to prevail to demonstrate each of the foregoing factors weighs in favor of `non-employee' status....

2002Landrigan, supra, 127 N.J. at 414 , 605 A.2d 1079 .

2002Landrigan, supra, 127 N.J. at 414 , 605 A.2d 1079 .

1998O’Brien, supra, 94 N.J. at 186 , 463 A.2d 298 .

1998O’Brien, supra, 94 N.J. at 186 , 463 A.2d 298 .

1996Helmsley v. Borough of Fort Lee, 78 N.J. 200, 237 , 394 A.2d 65 (1978), appeal dismissed, 440 U.S. 978 , 99 S.Ct. 1782 , 60 L.Ed.2d 237 (1979), clarified, 82 N.J. 128 , 411 A.2d 203 (1980).

1996Helmsley v. Borough of Fort Lee, 78 N.J. 200, 237 , 394 A.2d 65 (1978), appeal dismissed, 440 U.S. 978 , 99 S.Ct. 1782 , 60 L.Ed.2d 237 (1979), clarified, 82 N.J. 128 , 411 A.2d 203 (1980).

1996Helmsley v. Borough of Fort Lee, 78 N.J. 200, 237 , 394 A.2d 65 (1978), appeal dismissed, 440 U.S. 978 , 99 S.Ct. 1782 , 60 L.Ed.2d 237 (1979), clarified, 82 N.J. 128 , 411 A.2d 203 (1980).

1996Then, in People v. Pepper, 53 N.Y.2d 213 , 440 N.Y.S.2d 889 , 423 N.E.2d 366, 369-70 , cert. denied, 454 U.S. 967 , 102 S.Ct. 510 , 70 L.Ed.2d 383 (1981), the New York court applied the three-factor Linkletter test and concluded that the Samuels rule should be accorded “pipeline retroactivity.” The court noted that such a result was consistent with its previous decisions giving limited retroactive effect to new rules involving the pre-trial right to counsel.

1996Then, in People v. Pepper, 53 N.Y. 2d 213 , 440 N.Y.S. 2d 889 , 423 N.E. 2d 366, 369-70 , cert. denied, 454 U.S. 967 , 102 S.Ct. 510 , 70 L.Ed. 2d 383 (1981), the New York court applied the three-factor Linkletter test and concluded that the Samuels rule should be accorded "pipeline retroactivity." The court noted that such a result was consistent with its previous decisions giving limited retroactive effect to new rules involving the pre-trial right to counsel.

1996Then, in People v. Pepper, 53 N.Y.2d 213 , 440 N.Y.S.2d 889 , 423 N.E.2d 366, 369-70 , cert. denied, 454 U.S. 967 , 102 S.Ct. 510 , 70 L.Ed.2d 383 (1981), the New York court applied the three-factor Linkletter test and concluded that the Samuels rule should be accorded “pipeline retroactivity.” The court noted that such a result was consistent with its previous decisions giving limited retroactive effect to new rules involving the pre-trial right to counsel.

1996Then, in People v. Pepper, 53 N.Y.2d 213 , 440 N.Y.S.2d 889 , 423 N.E.2d 366, 369-70 , cert. denied, 454 U.S. 967 , 102 S.Ct. 510 , 70 L.Ed.2d 383 (1981), the New York court applied the three-factor Linkletter test and concluded that the Samuels rule should be accorded “pipeline retroactivity.” The court noted that such a result was consistent with its previous decisions giving limited retroactive effect to new rules involving the pre-trial right to counsel.

1996We note that in urban counties the first appearance by criminal defendants occurs in Central Judicial Processing (CJP) courts, see Tucker, supra, 137 N.J. at 284 , 645 A.2d 111 , and in those courts forms requesting assigned counsel generally are completed by defendants prior to their initial court appearance, and at that court appearance counsel from the public defender’s office are generally available to provide representation.

1996We note that in urban counties the first appearance by criminal defendants occurs in Central Judicial Processing (CJP) courts, see Tucker, supra, 137 N.J. at 284 , 645 A.2d 111 , and in those courts forms requesting assigned counsel generally are completed by defendants prior to their initial court appearance, and at that court appearance counsel from the public defender’s office are generally available to provide representation.

1996Then, in People v. Pepper, 53 N.Y.2d 213 , 440 N.Y.S.2d 889 , 423 N.E.2d 366, 369-70 , cert. denied, 454 U.S. 967 , 102 S.Ct. 510 , 70 L.Ed.2d 383 (1981), the New York court applied the three-factor Linkletter test and concluded that the Samuels rule should be accorded “pipeline retroactivity.” The court noted that such a result was consistent with its previous decisions giving limited retroactive effect to new rules involving the pre-trial right to counsel.

1996Then, in People v. Pepper, 53 N.Y.2d 213 , 440 N.Y.S.2d 889 , 423 N.E.2d 366, 369-70 , cert. denied, 454 U.S. 967 , 102 S.Ct. 510 , 70 L.Ed.2d 383 (1981), the New York court applied the three-factor Linkletter test and concluded that the Samuels rule should be accorded “pipeline retroactivity.” The court noted that such a result was consistent with its previous decisions giving limited retroactive effect to new rules involving the pre-trial right to counsel.