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New Jersey Courts Rule that Privilege of Self-Incrimination Stands

April 15, 2013 | Posted In Criminal Law - Self-Incrimination

In a recent ruling, the state appellate division denied a prosecutor's request that a police officer turn over his flashlight in a case against him, New Jersey criminal attorneys report. Myron Kelsey, an officer from the Trenton Police Department, was charged with assault when he allegedly used the flashlight in question to beat people over the head in a street fight. Kelsey, a seven-year veteran with the department, was off-duty when the fight occurred outside TirNaNog, a Trenton bar, in January 2011.

Trenton PD's Internal Affairs Division began investigating the incident after participants and their relatives drew attention to the actions of several off-duty police officers during the fight. A witness also claimed that Kelsey had been using his flashlight as a weapon, striking several people in the head and injuring them. When Internal Affairs officers uncovered an empty flashlight box in Kelsey's car during a warranted search, the department brought the patrolman up on aggravated assault and weapons charges.

Initially, at the request of the Morris County prosecutor, Superior Court Judge Robert Billmeier ordered Kelsey to produce the flashlight as evidence in the trial, but Kelsey's criminal attorneys introduced a motion for reconsideration, and Billmeier rescinded his order. At the appellate hearing, the prosecutor for the case noted a series  of previous trials in which the defendants had been compelled to submit evidence that could possibly be used against them—samples of hair, blood, urine, and other genetic matter. But in their ruling, the appellate judges identified the flashlight as an alleged weapon, and thus similar in incriminating nature to stolen goods rather than genetic material. One judge noted that "ordering...Kelsey to turn over the flashlight would be comparable to having [him] make the prosecution's case against himself."

The judges of the appellate division went further, saying that if Kelsey was forced to turn over the flashlight, which could implicate him in the fight, it would be in direct violation of his rights. "The Fifth protects the individual from coercion upon him to come forward with anything that can incriminate him," Appellate Division Judge Jose Fuentes stated, quoting a decision from Chief Justice Joseph Weintraub in 1968. This decision sets the flashlight in question—along with any other physical weapon—apart from evidence that can be requested by the courts. The prosecution cannot prove definitively that Kelsey's flashlight was used as a weapon during the fight without first locating it themselves.

In filing an appeal and arguing for the protection of Kelsey's rights, his NJ criminal attorneys succeeded in getting the Superior Court's initial decision overturned. The prosecution cannot order Kelsey to incriminate himself in court, and must formulate its case based on other evidence. Retaining a criminal lawyer who knows your rights can be instrumental to your trial. The criminal attorneys at the New Jersey law firm Helmer, Conley, and Kasselman, PA can help ensure that your rights are protected during an investigation. If you are facing charges, contact one of the firm's attorneys for a consultation today.

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