This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.
NJSBA weighs in on DRE/DIE testimony following Special Master Report
Following a Special Master Report finding that drug recognition expert (DRE) evidence should be admissible in evidence subject to cross examination and credibility assessments, the New Jersey State Bar Association (NJSBA) urged the state Supreme Court to reaffirm the constitutional requirements under Frye v. United States in rejecting such evidence.
In State v. Olenowski, NJSBA brief author John Menzel argued that the basis for such evidence is unreliable and does not support scientific reliability necessary for admission of same.
In its brief, the NJSBA disputed the state’s argument that a 75% corroboration rate with actual toxicology results is high enough to give confidence that the DRE is sufficiently capable.
“[W]hat is ‘high enough’ for the State should not be high enough for this Court to find the [Drug Influence Evaluation] technique and DRE opinion derived from that technique generally accepted scientifically,” said the NJSBA.
The Association urged the Court to reaffirm the Frye standards in requiring general acceptance in the medical and scientific communities by holding that, when viewed holistically, the DIE is not generally accepted and cannot, by itself, support an opinion that one is under the influence.
It further argued that the Court should hold that DREs are not qualified as expert witnesses and are more properly characterized as specialized lay witnesses or “evaluators” based on their specialized training in taking vital signs and assessing eye movements. Finally, it urged the Court to limit the scope of DRE testimony to facts they are competent to speak of, namely general observations and observations of vital signs.
Last year, the Supreme Court issued an order remanding this matter to a special master, retired Judge Joseph F. Lisa, to hold a plenary hearing to consider whether DRE evidence has achieved general acceptance within the relevant scientific community. He was also ordered to determine whether each individual component of the 12-step protocol the state developed is reliable, whether all of the 12-step protocol is scientifically reliable and can form the basis of expert testimony, and whether components of the process present limitations, practical or otherwise.
The NJSBA has consistently argued that DIEs and DREs are inadequate for any purpose unless its proponent lays an appropriate foundation that meets the Frye requirements.
No oral argument date has been set yet in this matter.
In-Person Immigration Hearings Posing Health Risks, Says NJSBA
In response to a recent policy change by the Executive Office of Immigration Review (EOIR), the NJSBA urged the the courts to reconsider in-person appearances for master calendar hearings.
EOIR has successfully held Webex hearings since the height of the pandemic, and Newark has become a national leader in the success of its internet-based hearings, noted NJSBA President Jeralyn L. Lawrence in a letter to EOIR Director David L. Neal. Master Calendar hearings typically last five to 15 minutes to complete, and in-person appearances will place a heavy burden on immigration attorneys across New Jersey.
“While vague Webex bandwidth issues have been cited as the impetus for the change, there has been no stated reason why EOIR will not default to the prior practice of holding Master Calendar hearings telephonically,” said Lawrence.
The NJSBA pointed out that such demand was done without proper notice to the attorneys and flies in the face of the principles of equal access to justice, due process and fundamental fairness.
“EOIR Newark failed to circulate a general notice to the entire bar of the policy of change and thereby limited the ability of all practitioners to learn of the change in a timely fashion,” said Lawrence.
The NJSBA continues to monitor this issue.