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Appeals Court Rules on Adverse Inference

May 17, 2013 | Posted In Criminal Law - Appeals

A Bergen County man will get a new trial, New Jersey criminal lawyers report, after a ruling from the state appeals court last month. Appellate judges issued a warning to criminal trial judges regarding the procedure for a defendant who refuses to testify at his own trial. In these cases, the jury must be instructed not to draw an adverse inference against the defendant when making a decision. Failure to do so violates a defendant's constitutional rights, the appeals court said, and could result in overturned convictions and new trials across the board.

In 2009, Frank Camacho was accused of stealing an Audi from the parking lot of a Wallington restaurant, in which he subsequently led police officers in a high-speed chase for several miles. The man who was seen driving the car had a beard. At trial, his NJ criminal defense lawyer argued that Camacho's beardless appearance indicated his innocence; his client was a clean-shaven man. Camacho did not offer testimony on his own behalf. He was acquitted of stealing the car, and instead charged with second-degree eluding of law enforcement. Second-degree eluding is a criminal offense that results in jail time, because of the risk of death or serious bodily harm involved to other people. Since his conviction, Camacho has been serving out his seven-year prison sentence.

In State v. Camacho, A-3284-10, Camacho appealed his conviction, citing New Jersey's no-adverse-inference laws. At his original trial, his attorney requested that the presiding Superior Court judge issue a statement to the jury, instructing them not to attach adverse judgment to Camacho's refusal to testify. Judge Donald Venezia did not honor the attorney's request, instead reminding the jury that "Camacho had no burden to prove anything." In opposition to the appeal, the state has argued that the burden-of-proof warning is equivalent to a no-adverse-inference charge, and the judge could omit one in sake of the other.

But several judges from the Appellate Division ruled differently, warning that when a judge declines to properly educate the jury when a defendant does not testify, appeals courts are more likely to order a retrial, or overturn a conviction altogether. According to the panel, "erroneous instructions on matters…material to the jurors' deliberations are presumed to be reversible error."

The judge's decision to not instruct the jury was not "harmless," as it was presented in Camacho's initial trial, and appellate judges cited a U.S. Supreme Court case from 1981—Carter v. Kentucky, 450 U.S. 288—in which the court ruled that judges "must, if requested to do so, use the unique power of the jury instruction to reduce…speculation to a minimum." The appeals court ordered that Camacho be retried before a new jury on charges of eluding and theft.

New Jersey criminal attorneys say that this case emphasizes how critical it is to ensure proper jury instruction at trial, as well as the importance of retaining an attorney experienced in both criminal and appellate court. The criminal lawyers at New Jersey law firm Helmer, Conley, and Kasselman, PA have several years of experience in Appellate Court. They represent anyone seeking to overturn or appeal their prior convictions.

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