Capitol Report

Capitol Report

August 13, 2018

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.

Omnibus Rule amendments effective Sept. 1—No in limine rule to be included

The Administrative Office of the Courts announced omnibus rule amendments, which will become effective Sept. 1. Significantly, the amendments do not incorporate a proposed new rule that would provide structure and set forth obligations related to motions in limine. The New Jersey State Bar Association opposed the proposed rule because it was concerned the rule did not address the issues raised in Cho v. Trinitas Reg’l Med. Center, 443 N.J. Super. 461 (App. Div. 2015), outlining issues relative to in limine motions.

Cho involved a defendant who filed a motion in limine that sought dismissal of the complaint a day before jury selection in a medical malpractice case. The Appellate Division held that the last-minute consideration of the motion and dismissal of the complaint under the circumstances in that matter deprived the plaintiffs of their right to due process.

“The fact that this misuse of the motion in limine occurs sufficiently often to win our notice, despite our repeated cautions against such practice, leads us to conclude it necessary to state clearly what a motion in limine is not. It is not a summary judgment motion that happens to be filed on the eve of trial. When granting a motion will result in the dismissal of a plaintiff’s case or the suppression of a defendant’s defenses, the motion is subject to Rule 4:46, the rule that governs summary judgment motions,” said the Appellate Division in Cho.

While the association agreed that a rule is necessary “to provide a more predictable framework for bringing and hearing motions in limine,” it cautioned that the proposed new rule would have resulted “in higher fees and costs for litigants, unnecessary time constraints on attorneys and little, if any, relief for judges in hearing last-minute motions before trial.”

The omnibus rules contain several new rules, including Chapter XI on the Complex Business Litigation Program. The new rules can be found at https://www.njcourts.gov/notices/2018.

Model criminal jury charges include new model charges; updated possession charge

The Supreme Court Committee on Model Criminal Jury Charges issued updated jury charges to address a change in the law related to possession pursuant to State v. Randolph, 228 N.J. 566 (2018), and to include several new charges.

Randolph raised the issue of the definition of ‘mere presence’ with respect to possessory charges. The instructions incorporate language that a defendant’s mere presence “at or near a place where [contraband] is/are discovered is not in itself, without more, proof beyond a reasonable doubt that defendant was in constructive possession of [that contraband].” The instructions further state that it is a circumstance to be considered with other evidence in determining whether the state has proven possession of the contraband beyond a reasonable doubt.

New model charges have been included as follows:

·         Aggravated assault—healthcare worker (attempting to cause or purposely, knowingly or recklessly causing bodily injury)

·         Computer criminal activity—accesses, alters, accesses to defraud, obtains, recklessly alters

·         Tampering with public records or information (recording devices in patrol vehicles)

·         Unlawful possession of a handgun—prior NERA conviction (first degree).

These charges may be downloaded from the Judiciary’s website at www.njcourts.gov/attorneys/criminalcharges.html, or at the Judiciary’s Automated Model Criminal Jury Charges System, at www.njcourts.gov/criminal/apps/jurycharges/DefaultExternal.aspx


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