New Jersey Domestic Violence Charges Must Be Dismissed When a Victim Invokes Their 5th Amendment Rights with No Other Witnesses
Appellate Docket No.: A-1848-22
Decided September 19, 2023
Submitted by New Jersey Domestic Violence Lawyer, Jeffrey Hark.
In a recent unpublished opinion, the Appellate Division of New Jersey affirmed a dismissal of criminal charges related to a domestic violence matter after the prosecutor failed to disclose conversations with the victim in which the victim indicated they would not testify against the defendant.
In State v. D.A.B., on July 8, 2021, Washington Township Police Officer Kyle Fisler met with the alleged victim, A.B., at the entrance to the township police department. A.B. reported that her then husband, defendant D.A.B., had strangled her the previous night. She wanted to get more information about filing an incident report. Another officer also arrived.
The officers and A.B. relocated to a private room. A.B. asked twice what would happen if an incident report were filed, inquiring specifically whether defendant would be notified about her police statement. A.B. stated that she did not want to press charges, have defendant arrested, or file for a restraining order. Instead, she wished to document the incident “if she needed to proceed in the future.” She expressed concern that a complaint would be sent to defendant through the mail because she and defendant were living together at the time.
According to the State’s brief, A.B. described to the police an argument she had with the defendant the previous night. She reported that defendant had pinned her down on the bed and choked her three times. She further alleged that defendant “banged her head on the door and threw her to the ground.” She said that she couldn’t breathe and “could not stop coughing and throwing up after the incident.” Officer Fisler photographed A.B.’s neck and observed minor injuries. Apparently, there were no eyewitnesses to the altercation.
Based on A.B.’s allegations and her apparent injury, Officer Fisler issued a summons charge against defendant that same day charging him with third degree aggravated assault, N.J.S.A. 2C:12-l(b)(13), and the disorderly persons offense of simple assault, N.J.S.A. 2C:12-l(a)(l). Thereafter, defendant was charged by a grand jury under an indictment charging him with third-degree aggravated assault. Defendant was arraigned and entered a not-guilty plea.
On October 31, 2022, an assistant prosecutor emailed defense counsel a revision of the State’s previously extended plea offer. As described in defendant’s brief, the offer was “less punitive than that previously extended.” The prosecutor indicated to defense counsel that they had no further communications with the victim since last appearance.
Defendant thereafter moved to dismiss the indictment “for prosecutorial misconduct and/or willful violation of the State’s discovery obligations.” After hearing oral argument, the trial court dismissed the indictment with prejudice. The Court found that without A.B.’s testimony by her asserting her 5th Amendment right not to testify the State would not be able to prove its case and recognized the prosecutor’s failure to disclose the information violated the law.
The State appealed and the Appellate Division affirmed, finding both the dismissal of the charges and the prosecutorial misconduct were the appropriate rulings.
This case is vital for all domestic violence matters. In most domestic violence matters, there are no third party witnesses and the police do not arrive until after the incident occurred, leaving one witness for the State to prove the defendant committed domestic violence. If the witness chooses not to testify and invoke their 5th Amendment right, the State must dismiss the charges if no third party witness or video recording of the incident exists. What’s more, a prosecutor’s failure to disclose communications related to the failure to testify will result in a dismissal of the charges if it’s later determined that the witness communicated their intent not testify to the prosecutor.
If you have been charged with any domestic violence charge, first degree crime, second degree crime, third degree crime, fourth degree crime, disorderly persons offense, municipal ordinance violation, or traffic ticket / DUI/DWI, contact an experienced criminal defense attorney today. At Hark & Hark, we represent clients in Superior Court and municipal court for criminal matters like the present case. We vigorously defend our clients by fighting to ensure prosecutors, police, and even judges follow the law.
We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any south Jersey county in New Jersey including Atlantic County, Burlington County, Camden County, Cape May County, Cumberland County, Gloucester County, Mercer County, Middlesex County, Monmouth County, Ocean County, and Salem County and any town including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington ,Haddon Heights ,Pine Hill ,Bellmawr ,Haddon Township , Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.
