exercise privilege in New Jersey

2021While the courts necessarily make new substantive law through the decision of specific cases coming before them, they are not to make substantive law wholesale through the exercise of the rule-making power. [Winberry v. Salisbury, 5 N.J. 240, 248 (1950); accord In re P.L. 2001, Chapter 362., 186 N.J. 368, 380 (2006) (citing Winberry, 5 N.J. at 247–48).] Moreover, "[n]otwithstanding that grant of [constitutional] authority, '[i]n the spirit of comity,' th[e] Court has shared its jurisdiction with the Legislature and 'upheld narrowly-circumscribed legislation that touches on attorney discipline.

2021“While the courts necessarily make new substantive law through the decision of specific cases coming before them, they are not to make substantive law wholesale through the exercise of the rule-making power.” Winberry, 5 N.J. at 248 .

2021Moreover, we emphasized that "[o]ur holding [in A.G.D.] is not to be construed as altering existing case A-2641-17T2 19 law . . . other than imposing the basic requirement to inform an interrogatee that a criminal complaint or arrest warrant has been filed or issued." [Id. at 405 (alterations in original) (emphasis added) (quoting A.G.D., 178 N.J. at 68–69).] Our Supreme Court has said that A.G.D., along with State v. Reed, 133 N.J. 237, 269 (1993) (requiring police to notify a person that an attorney is available for advice), confirmed that "police officers conducting a custodial interrogatio

2021Moreover, we emphasized that "[o]ur holding [in A.G.D.] is not to be construed as altering existing case law . . . other than imposing the basic requirement to A-2641-17T2 19 inform an interrogatee that a criminal complaint or arrest warrant has been filed or issued." [Id. at 405 (alterations in original) (emphasis added) (quoting A.G.D., 178 N.J. at 68–69).] Our Supreme Court has said that A.G.D., along with State v. Reed, 133 N.J. 237, 269 (1993) (requiring police to notify a person that an attorney is available for advice), confirmed that "police officers conducting a custodial interrogatio

2025Our Supreme Court in Reed explained, "[u]nder the law of our State, although the right to counsel is implicated in the exercise of the privilege against self-incrimination in the pre-indictment stage of a criminal prosecution, it is not the [same] right to counsel that is constitutionally guaranteed once a defendant has been indicted." 133 N.J. at 263 (citing State v. Sanchez, 129 N.J. 261, 276-77 (1992)).

1996Although acknowledging that in the post-indictment context the right to counsel is the right to actual representation separately guaranteed by the Sixth Amendment, the Court noted the correlation between the assistance of counsel and the exercise' of the privilege against self-incrimination, stating that the right to counsel during police interrogation is “a preventive measure that protects an accused from self-incrimination during police questioning.” State v. Sanchez, 129 N.J. 261, 266 [ 609 A.2d 400 ] (1992) (citing Miranda).

2026As Reed points out, the right to counsel "implicated in the exercise of the privilege A-3811-23 34 against self-incrimination in the pre-indictment stage of a criminal prosecution, . . . is not the [same] right to counsel that is constitutionally guaranteed once a defendant has been indicted." 133 N.J. at 263 .

2025Our Supreme Court in Reed explained, "[u]nder the law of our State, although the right to counsel is implicated in the exercise of the privilege against self-incrimination in the pre-indictment stage of a criminal prosecution, it is not the [same] right to counsel that is constitutionally guaranteed once a defendant has been indicted." 133 N.J. at 263 (citing State v. Sanchez, 129 N.J. 261, 276-77 (1992)).

2013We held that DEP could not waive its regulations in the absence of a duly promulgated regulation “authorizing waivers and establishing appropriate standards for the exercise of waiver authority.” Id. at 50, 624 A.2d 14 .

1997The Appellate Division held that the CARB’s waiver of the Policy effected “a nullification of important policy determinations expressed in DEP regulations implementing CAFRA” and “neither [the CARB] nor the Commissioner had the authority to grant such a waiver in the absence of a regulation adopted pursuant to the Administrative Procedure Act authorizing waivers and establishing appropriate standards of the exercise of waiver authority.” SMB Assocs., supra, 264 N.J.Super. at 50, 624 A.2d 14 .

2026Under the Fifth Amendment right to counsel, "once a defendant has invoked his [or her] right to have counsel present," or "expressed his [or her] desire to deal with the police only through counsel," he [or she] is "not subject to further interrogation by the authorities until counsel has been made available to him [or her], unless the accused himself [or herself] initiates further communication, exchanges, or conversations with the police." Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).

2026State v. Nunez, 209 N.J.

2021Ethics Op. 705, 192 N.J. 46, 55 (2007) (third alteration in original) (quoting McKeown-Brand, 132 N.J. at 554, 556 ).

2021With certain refinements, the Court summarized the three-step process in State v. Osorio, 199 N.J. 486, 492-93 (2009): (1) the party contesting the peremptory challenge must carry the “slight” burden of “tender[ing] 3 sufficient proofs to raise an inference of discrimination” in the exercise of the challenge; (2) if that burden is met, then the party exercising the challenge must “prove a race- or ethnicity-neutral basis” for the challenge; and (3) the court must “determine whether, by a preponderance of the evidence, the party contesting the exercise of a peremptory challenge has proven that

2021Ethics Op. 705, 192 N.J. 46, 55 (2007) (third alteration in original) (quoting McKeown-Brand, 132 N.J. at 554, 556 ).

2021While the courts necessarily make new substantive law through the decision of specific cases coming before them, they are not to make substantive law wholesale through the exercise of the rule-making power. [Winberry v. Salisbury, 5 N.J. 240, 248 (1950); accord In re P.L. 2001, Chapter 362., 186 N.J. 368, 380 (2006) (citing Winberry, 5 N.J. at 247–48).] Moreover, "[n]otwithstanding that grant of [constitutional] authority, '[i]n the spirit of comity,' th[e] Court has shared its jurisdiction with the Legislature and 'upheld narrowly-circumscribed legislation that touches on attorney discipline.

2010That question is whether defendant made statements at the May 8 meeting that he "would not have made had it not been for the misleading actions of the Government." United States v. Swint, 15 F. 3d 286, 290 (3d Cir. 1994); see also State v. Adams, 127 N.J. 438, 442-43 , 605 A. 2d 1097 (1992) (discussing the efforts made to clarify that oral statements, like written statements, could be introduced at trial); State v. Pillar, 359 N.J.Super. 249, 268 , 820 A. 2d 1 (App.Div.) (concluding that the State was obligated to dispel confusion about whether defendant's statements were on or off the record)

2010That question is whether defendant made statements at the May 8 meeting that he "would not have made had it not been for the misleading actions of the Government." United States v. Swint, 15 F. 3d 286, 290 (3d Cir. 1994); see also State v. Adams, 127 N.J. 438, 442-43 , 605 A. 2d 1097 (1992) (discussing the efforts made to clarify that oral statements, like written statements, could be introduced at trial); State v. Pillar, 359 N.J.Super. 249, 268 , 820 A. 2d 1 (App.Div.) (concluding that the State was obligated to dispel confusion about whether defendant's statements were on or off the record)

2010That question is whether defendant made statements at the May 8 meeting that he "would not have made had it not been for the misleading actions of the Government." United States v. Swint, 15 F. 3d 286, 290 (3d Cir. 1994); see also State v. Adams, 127 N.J. 438, 442-43 , 605 A. 2d 1097 (1992) (discussing the efforts made to clarify that oral statements, like written statements, could be introduced at trial); State v. Pillar, 359 N.J.Super. 249, 268 , 820 A. 2d 1 (App.Div.) (concluding that the State was obligated to dispel confusion about whether defendant's statements were on or off the record)

2009See United States v. Valenzuela-Bernal, 458 U.S. 858, 870 , 102 S.Ct. 3440, 3448 , 73 L.Ed. 2d 1193, 1204 (1982) (discussing the constitutional rights implicated by the government's deportation of witnesses that made them unavailable to the defense with reference to decisions addressing the government's exercise of a privilege to refrain from identifying an informant); Washington v. Texas, 388 U.S. 14, 23 , 87 S.Ct. 1920, 1925 , 18 L.Ed. 2d 1019, 1025 (1967) (invalidating a state's evidentiary rule precluding defendant from presenting testimony of a co-defendant as violating the right of compu

2009See United States v. Valenzuela-Bernal, 458 U.S. 858, 870 , 102 S.Ct. 3440, 3448 , 73 L.Ed. 2d 1193, 1204 (1982) (discussing the constitutional rights implicated by the government's deportation of witnesses that made them unavailable to the defense with reference to decisions addressing the government's exercise of a privilege to refrain from identifying an informant); Washington v. Texas, 388 U.S. 14, 23 , 87 S.Ct. 1920, 1925 , 18 L.Ed. 2d 1019, 1025 (1967) (invalidating a state's evidentiary rule precluding defendant from presenting testimony of a co-defendant as violating the right of compu

2009See United States v. Valenzuela-Bernal, 458 U.S. 858, 870 , 102 S.Ct. 3440, 3448 , 73 L.Ed. 2d 1193, 1204 (1982) (discussing the constitutional rights implicated by the government's deportation of witnesses that made them unavailable to the defense with reference to decisions addressing the government's exercise of a privilege to refrain from identifying an informant); Washington v. Texas, 388 U.S. 14, 23 , 87 S.Ct. 1920, 1925 , 18 L.Ed. 2d 1019, 1025 (1967) (invalidating a state's evidentiary rule precluding defendant from presenting testimony of a co-defendant as violating the right of compu

2009See United States v. Valenzuela-Bernal, 458 U.S. 858, 870 , 102 S.Ct. 3440, 3448 , 73 L.Ed. 2d 1193, 1204 (1982) (discussing the constitutional rights implicated by the government's deportation of witnesses that made them unavailable to the defense with reference to decisions addressing the government's exercise of a privilege to refrain from identifying an informant); Washington v. Texas, 388 U.S. 14, 23 , 87 S.Ct. 1920, 1925 , 18 L.Ed. 2d 1019, 1025 (1967) (invalidating a state's evidentiary rule precluding defendant from presenting testimony of a co-defendant as violating the right of compu