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Criminal Appeal Update (Wire and Phone Tap Evidence)


by in Criminal Defense

The following criminal appeal was recently decided by the New Jersey Superior Court – Appellate Division. Summary by Mark Friedman.

State v. Franklin Kincey, Felisha Spencer, and Beverly Oliphant, unpublished opinion, App. Div. Docket No. A-0058-09T4 (November 4, 2009) – Order denying admission on State’s case of evidence obtained through a judicially-authorized wiretap remanded for further consideration on the record as presented on appeal.

“As the State has recognized, as a general rule, a trial court’s determination whether to admit evidence will be reversed only if it constitutes an abuse of discretion…. However, to apply that standard in the present case is difficult, because the State’s reasons for admission of the proffered evidence have been crystallized on appeal, and the identity of the wiretaps that the State considers evidential has been refined. We disapprove of the procedures thus employed by the State. Nonetheless, we regard the evidentiary issues presented on appeal to be of substantial significance to both the State and the defendant. As a consequence, we decline to determine this matter on the basis of the trial court record as it presently exists, finding it preferable to remand the issue of the admissibility of the eleven conversations upon which the State now focuses to Judge Callahan for his further review in light of the arguments raised on both the State’s and Kincey’s behalf on appeal. We express no opinion with respect to the proper resolution of the issues raised.” See also JOINDER AND SEVERANCE. (Eric V. Kleiner for Kincey; Nathan Kittner for Spencer)

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