State v. Olenowski
The New Jersey State Bar Association will file supplemental briefing following a special master report in State v. Olenowski. Judge Joseph F. Lisa found that the state has clearly established its Drug Evaluation Classification Program (DECP) and the 12-step Drug Recognition Experts (DRE) protocol satisfy the reliability standard of N.J.R.E. 702 when analyzed under the Daubert standard. The NJSBA argued that the Daubert standard, not the Frye standard, should apply in evaluating the scientific reliability of such evidence and that under both standards, DRE testimony is scientifically unreliable.
In the case, the defendant was convicted of driving while intoxicated based on the DRE testimony, a decision that was upheld by the Appellate Division. On appeal, the state Supreme Court held that the record was inadequate to test the validity of DRE evidence and appointed a special master to conduct a plenary hearing on the admissibility of DRE evidence. The NJSBA filed an amicus curiae brief questioning the legitimacy of DRE testimony, arguing that it lacks the foundation to meet the Frye standard for expert opinions. In his initial report issued last August, Judge Lisa concluded DRE testimony should be admitted under the Frye standard.
In the briefing among the parties, a discussion of error rates associated with DRE evidence made it evident to the Supreme Court that while they are expressly considered under the Daubert standard, they are not directly covered under the Frye’s general acceptance standard. The Court directed the parties to brief “whether this Court should depart from Frye and adopt the principles of Daubert in criminal cases.”
The NJSBA anticipates filing supplemental briefing and participating in oral argument, tentatively scheduled for June 1, following up Judge Lisa’s latest supplemental report. NJSBA member John Menzel continues to represent the NJSBA in this matter.
State v. Zingis
The special master hearings in State v. Zingis continue, with Menzel, Jeffrey Evan Gold and Michael Troso representing the NJSBA. Special Master Judge Robert A. Fall is hearing testimony about the development of a list by the Attorney General of individuals whose DWI convictions were affected by the malfeasance of a former state trooper in failing to follow proper protocols in calibrating Alcotest machines used to determine an individual’s blood alcohol content.
The case focuses on what evidence the state must present to prove that a prior conviction for DWI was not based on Alcotest breath sample test results deemed inadmissible because of the trooper’s malfeasance for a defendant to be subject to enhanced sentencing requirements in a subsequent DWI prosecution. Judge Fall is expected to complete the hearings in the coming weeks and issue a report to the Supreme Court for further action.
Cardali v. Cardali
The Supreme Court granted the NJSBA’s motion to participate as amicus curiae and oral argument is scheduled for later this month in Cardali v. Cardali, which centers around cohabitation in applications to modify or terminate alimony. NJSBA President Jeralyn L. Lawrence, NJSBA Incoming President Timothy F. McGoughran, NJSBA Family Law Executive Committee Chair Derek M. Freed, and NJSBA members Catherine Murphy and Brian G. Paul authored the brief. Lawrence will argue before the Supreme Court.
The NJSBA is asking the Court to adopt a Lepis-type standard to be applied uniformly. The three-step process would require a prima facie showing of cohabitation—without the necessity of proving financial entanglements, shifting the burden of proof to the payee to prove there is no cohabitation; the ability to obtain discovery for this purpose; and a case management conference to determine if there are any genuine issues of material fact necessitating a plenary hearing. If there are no genuine issues, a motion for summary judgment should be permitted. If there are genuine issues of material fact, then a plenary hearing would be conducted.
“This will provide a practical and effective approach for trial courts to apply in cases where cohabitation is alleged and will provide a clear and unequivocal standard for litigants that is sorely missing under current case law,” said the NJSBA in its brief.
The New Jersey chapter of the American Academy of Matrimonial Attorneys is also participating as amicus curiae in support of a uniform procedure for these matters. Oral argument is scheduled for April 25.