Original Message------

wife files criminal harassment charges in municipal court against husband during hotly contested divorce (full out custody battle)

 

based on alleged text messages on a specific day over a period of 1.5 hours, text messages including what wife says are offensively coarse words.

 

complaining witness finishes her testimony, prosecutor's case closed.  I make a motion, the text messages are not sufficient for criminal conviction.

 

domestic contretemps, during hotly contested custody and divorce litigation. not lovely behavior, but not a crime.

 

judge denies, finds sufficient proof to sustain conviction. State v. Castagna does not convince him,

nor do the many DV cases, ED v. PD, Peranio, DLK v WK, where DV has much lower burden preponderance vs. beyond a reasonable.

 

case adjourned for a month.

 

any case law helpful on this? thoughts?

Yes to everything Hanan said about need for prosecutor to prove intent! And yes to what Hanan said about preserving the record for appeal!

But to back up for a minute. You state the witness testified about the texts she allegedly received from your client. Haven't you seen the actual text messages? Were screen shots of them submitted into evidence under the statement by a party opponent exception to the hearsay rule? How many texts were sent in the 1.5 hours by your client? Was it only him texting - a one way trickle or barrage of texts? Or was it a back and forth text situation? (I understand if you don't want to post answers to these questions in such an open forum. I would be happy to discuss with you off the list serve.)

Regarding the use of "coarse language". If the parties have a history of using similarly "coarse language" back and forth when upset, I might argue using such language fails to show an intent to harass; it is just an established pattern for how the parties interact when they are fighting. Also, there is coarse language and then there is coarse language. "I am sick of your bullshit" vs. "You are a [insert all the words and phrases which would make most people flinch here]."

Best of luck to you on a tricky case, Anne

Anne Cralle, Esq.



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Original Message------

I think your best argument is lack of intent.  To harass, there must be  proof of purpose to harass.  Almost all of the DV harassment cases we have brought and defended come down to intent.  And, most of the time, the actual reason for the unwanted communication is NOT to harass, but to get something, either tangible or emotional, from the other person. Stalking is a different story:  a DV finding  depends upon proof of conduct, not intention.  Hanan   Hanan M. Isaacs, Esq.   t 609.683.7400   f 609.921.8982 e [email protected]   w www.hananisaacs.com 4499 Route 27, Kingston NJ   Sounds like you know the arguments - make sure it's all on the record. Since you have a delay until next appearance, maybe a written motion for... Family Law   Post New Message   Re: criminal harassment charges pending during divorce Reply to Group Reply to Sender Sep 22, 2016 2:37 PM David Perry Davis, Esq Sounds like you know the arguments - make sure it's all on the record. Since you have a delay until next appearance, maybe a written motion for reconsideration? Then you appeal de novo to the Law Division, then to the Appellate Division. Sounds like you should prevail eventually. David Perry Davis, Esq. ----------------------------------------------------    www.FamilyLawNJ.pro ---------------------------------------------------- 112 West Franklin Avenue Pennington, NJ 08534 Voice: 609-737-2222 Fax:    609-737-3222   Reply to Group Online   View Thread   Recommend   Forward

Original Message------

Yes to everything Hanan said about need for prosecutor to prove intent! And yes to what Hanan said about preserving the record for appeal!

But to back up for a minute. You state the witness testified about the texts she allegedly received from your client. Haven't you seen the actual text messages? Were screen shots of them submitted into evidence under the statement by a party opponent exception to the hearsay rule? How many texts were sent in the 1.5 hours by your client? Was it only him texting - a one way trickle or barrage of texts? Or was it a back and forth text situation? (I understand if you don't want to post answers to these questions in such an open forum. I would be happy to discuss with you off the list serve.)

Regarding the use of "coarse language". If the parties have a history of using similarly "coarse language" back and forth when upset, I might argue using such language fails to show an intent to harass; it is just an established pattern for how the parties interact when they are fighting. Also, there is coarse language and then there is coarse language. "I am sick of your bullshit" vs. "You are a [insert all the words and phrases which would make most people flinch here]."

Best of luck to you on a tricky case, Anne

Anne Cralle, Esq.



Sent from my iPad

I have been thinking some more about this. The texts might not be hearsay. Yes, they are out of court statements. But are they being offered for the truth of the matter asserted? Doubtful. This is a harassment case so I am going to assume the texts were insults. For example, the texts say, "You are a nasty witch." Wife is not offering the texts as proof she is a nasty witch. She is offering the texts as proof her estranged husband is contacting her via unpleasant texts with the purpose to harass her. So no need for a hearsay exception.

However, texts are writings. Writings are supposed to comply with the best evidence rule. Also, the opposing party has the right to ask that the full writing be entered into evidence, not just the portions selected by the offering party. I would argue if the text messages go back and forth, the writing is comprised of all the texts, not just the allegedly harassing ones sent by one party.

Wife's testimony alone as to the content of the texts, including her "coarse language" opinion, doesn't seem like it would meet the above evidentiary requirements. If you have a copy of Judge Jones' opinion, David, could you attach and send to group?

That being said, I think her testimony limited to her receipt of X number of texts during X time period on X day at X time from her husband's phone number might survive evidentiary objections raised. "I received 120 text messages over a period of two hours on 9.1.16 between the hours of 4:30 am to 6:30 am from my husband's cell phone number."

Anne

Anne Cralle, Esq.



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Original Message------

Anne raises an excellent point. There's a recent Judge Jones case regarding the evidential requirements before texts can be used - even if an exception might be sought in a FRO hearing with a plaintiff appearing pro se, here we're talking about the state. If they didn't comply (I think they need to be printed?), I'd hold their feet to the fire after they close and argue there was no admissible evidence as to the texts.


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David Perry Davis, Esq.
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   www.FamilyLawNJ.pro
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112 West Franklin Avenue
Pennington, NJ 08534
Voice: 609-737-2222
Fax:    609-737-3222

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Original Message------

I have been thinking some more about this. The texts might not be hearsay. Yes, they are out of court statements. But are they being offered for the truth of the matter asserted? Doubtful. This is a harassment case so I am going to assume the texts were insults. For example, the texts say, "You are a nasty witch." Wife is not offering the texts as proof she is a nasty witch. She is offering the texts as proof her estranged husband is contacting her via unpleasant texts with the purpose to harass her. So no need for a hearsay exception.

However, texts are writings. Writings are supposed to comply with the best evidence rule. Also, the opposing party has the right to ask that the full writing be entered into evidence, not just the portions selected by the offering party. I would argue if the text messages go back and forth, the writing is comprised of all the texts, not just the allegedly harassing ones sent by one party.

Wife's testimony alone as to the content of the texts, including her "coarse language" opinion, doesn't seem like it would meet the above evidentiary requirements. If you have a copy of Judge Jones' opinion, David, could you attach and send to group?

That being said, I think her testimony limited to her receipt of X number of texts during X time period on X day at X time from her husband's phone number might survive evidentiary objections raised. "I received 120 text messages over a period of two hours on 9.1.16 between the hours of 4:30 am to 6:30 am from my husband's cell phone number."

Anne

Anne Cralle, Esq.



Sent from my iPad