Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters. He is Co Chair of the ABA Criminal Law Committee, GP and was a speaker at the ABA Annual Meeting. To schedule a confidential consultation, call us or New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htm

Kenneth Vercammen & Associates, P.C,

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Thursday, September 25, 2014

Municipal Court Prosecutor Is Not an Ordinary Advocate and May Dismiss Cases


The duty of the prosecutor is to see that justice is done. Not just prosecute every case. The following is set forth in the New Jersey Court Rules, Appendix 2, Part VII, Guidelines for Operation of Plea Agreements in the Municipal Court of New Jersey, Gann Edition page 1999, Year 2000 Edition:

GUIDELINE 3. Prosecutor's Responsibilities. Nothing in these Guidelines should be construed to affect in any way the prosecutor's discretion in any case to move unilaterally for an amendment to the original charge or a dismissal of the charges pending against a defendant if the prosecutor determines and represents on the record the reasons in support of the motion.

(Adopted October 6, 1997, to be effective February 1, 1998.) NJ Court Rules, Year 2000 Edition Gann, p. 1909.

Moreover, Judge Pressler in the comments for Part VII, Appendix writes: Plea agreements are to be distinguished from the discretion of a prosecutor to charge or unilaterally move to dismiss, amend or otherwise dispose of a matter. It is recognized that it is not the municipal prosecutor's function merely to seek convictions in all cases. The prosecutor is not an ordinary advocate. Rather, the prosecutor has an obligation to defendants, the State and the public to see that justice is done and truth is revealed in each individual case. The goal should be to achieve individual justice in individual cases. In discharging the diverse responsibilities of that office, a prosecutor must have some latitude to exercise the prosecutorial discretion demanded of that position. It is well established, for example, that a prosecutor should not prosecute when the evidence does not support the State's charges. Further, the prosecutor should have the ability to amend the charges to conform to the proofs.

Recently in State v. Hawk, _______ NJ Super ___________, (App. Div. 2000) A-2784-98T5; the court held:

"A prosecutor holds a unique position in the legal community in that her primary duty is not to obtain convictions, "but to see that justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987). Consequently, while a prosecutor must advocate a position vigorously, there are boundaries to such conduct."

A private prosecutor is not permitted, unless a detailed attorney certification is submitted and rules upon first by the Court R 7:8-7(b). State v. Storm, 278 NJ Super. 287 (App. Div. 1994), aff'd 141 NJ 245) 1995 prohibited private prosecutors unless there is no conflict and no financial interest in the outcome.

The roles of the judge, prosecutor and defense attorney are distinct. The attorneys are advocates for the respective sides, while the judge is to be the neutral adjudicator. State v. Avena, 281 N.J. Super. 327, 336 (App. Div. 1995). The judge must remain impartial and detached and may not "take sides". State v. Santiago, 267 N.J. Super. 432, 437 (Law Div. 1993). The trial judge possesses a broad discretion as to his or her participation in the trial, but simultaneously must also maintain an atmosphere of impartiality. State v. Ray, 43 N.J. 19, 25 (1964). In DWI, criminal and other serious cases, court administrators sometimes refuse to adjourn cases where the State Police has failed to provide the mandatory discovery to the Prosecutor. A defense attorney who has paid for, but not received discovery, should not be forced by a court administrator to waste the attorney's time and client's money by traveling to a court to ask for an adjournment which is the fault of either the State Police or the Prosecutor. Defense attorneys should not have to go through the additional cost and work of filing motions to compel discovery.

Preparation of the State's case is clearly a prosecutorial function and is a responsibility that cannot be shifted to others. Any attempt by the prosecutor to place this function upon the clerk, who is an impartial judicial officer, is improper. State v. Perkins, 219 N.J. Super. 121, 125, 529 A.2d 1056 (Law Div. 1987).

MUNICIPAL COURTS ARE BARRED FROM HANDLING DISCOVERY REQUESTS OR ASSISTING THE POLICE OR PROSECUTORS IN PREPARING THE STATE'S CASE.

Canon 1. A Judge Should Uphold the Integrity and Independence of the Judiciary An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective. A court should not be "assisting" the Prosecutor to prosecute people or helping the State prepare it's cases. The integrity also is required of court administrators Canon 2. A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities

A. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. The court staff also cannot assist the Prosecutor. It is the appearance of impropriety for the Court to handle discovery.

Canon 3. A Judge Should Perform the Duties of Judicial Office Impartially and Diligently

Court staff also must be impartial. They cannot be impartial to help the police or prosecutor A municipal "prosecutor, like the [municipal] judge, must be impartial." State v. Storm, 141 N.J. 245, 254 (1995). Because of the requirement of impartiality, the municipal judge is prohibited from practicing criminal law. R. 1:15-1.

The roles of the judge, prosecutor and defense attorney are distinct. The attorneys are advocates for the respective sides, while the judge is to be the neutral adjudicator. State v. Avena, 281 N.J. Super. 327, 336 (App. Div. 1995). The judge must remain impartial and detached and may not "take sides". State v. Santiago, 267 N.J. Super. 432, 437 (Law Div. 1993). The trial judge possesses a broad discretion as to his or her participation in the trial, but simultaneously must also maintain an atmosphere of impartiality. State v. Ray, 43 N.J. 19, 25 (1964). See STATE OF NEW JERSEY v TROY SWINT, __ NJ Super. ___ (App. Div. ) A-5131-97T3

Preparation of the State's case is clearly a prosecutorial function Preparation of the State's case is clearly a prosecutorial function and is a responsibility that cannot be shifted to others. Any attempt by the prosecutor to place this function upon the clerk, who is an impartial judicial officer, is improper. State v. Perkins, 219 N.J. Super. 121, 125, 529 A.2d 1056 (Law Div. 1987). In State v. Polasky, 216 N.J. Super. 549 (Law Div 1986) Judge Haines discussed the municipal prosecutor's role in connection with discovery, and added: There is further reason for requiring the prosecutor to be responsible. In our court system, the prosecutor, contrary to an ordinary advocate, has a duty to see that justice is done. State v. D'Ippolito, 19 N.J. 450, 549-550 [117 A.2d 592] (1955). He is not to prosecute, for example, when the evidence does not support the State's charges. Consequently, the prosecutor has an obligation to defendants as well as the State and the public. Our discovery rules implicate that obligation, an obligation which can be discharged by no one else. [216 N.J. Super. at 555, 524 A.2d 474]

As set forth in State v Prickett; 240 NJ Super 139, 146 (App. Div 1990), it is the municipal prosecutor who selects the State's witnesses, requests postponements for the State, complies with discovery rules, requests dismissal if the State cannot make out a case, and does all else necessary to prepare and present the State's cases in the municipal court. See also Position 3.11, "The Role of the Prosecutor, Report of the Supreme Court Task Force on the Improvement of Municipal Courts (1985)".

We have the problem of a part-time municipal prosecutor responsible for preparing cases for trial who abandons a prosecutorial function to the municipal court clerk who assumes it. R. 1:9-1 indicates that the court clerk may issue a subpoena, but makes no provision for service by the court clerk nor does it give the clerk the authority to excuse any witness absent instructions from the municipal court judge. The municipal court clerk should not become involved in the preparation of the State's case. See N.J. Municipal Court Clerks' Manual, §2.3, pp. 69-70 (A.O.C. 1985) which states: "The municipal prosecutor has the responsibility for determining what witnesses he wants and of preparing his own subpoenas. However, if the municipal prosecutor lacks secretarial help, court personnel may assist in typing the subpoenas." State v Prickett 240 NJ Super at 145. However, the court should not ever act as the prosecutor's assistant. The court must be neutral. Courts are never permitted to handle discovery requests ever. That would be a violation of a defendant's right to an impartial court. Because the State is the municipal prosecutor's client, a failure to discharge the obligations of his office is a violation of a prosecutor's professional responsibility to represent the client diligently. When a prosecutor has available relevant evidence bearing on a prosecution, and the prosecutor's failure to present that evidence in the course of trial results in acquittal, that prosecutor has not diligently discharged his or her duty to prepare and present the State's case. Furthermore, when the failure to prepare for trial and present relevant evidence prejudices the State's case, the prosecutor's deviation from that duty may be so severe as to constitute gross negligence. Matter of Segal 130 NJ 468 (1992)