E-Zpass Records and the Alibi Defense
A defendant accused of a serious crime in which he must establish the affirmative defense of alibi, that is, that he or she could not have committed the crime alleged because he or she were somewhere else, other than the crime scene, can do so by presenting his or her E-Zpass records at the time of trial to help establish that he or she was driving his motor vehicle on an E-Zpass highway, which could establish, that he or she could not have committed the crime charged.
The recent unpublished appellate division case in S.S.S. v. M.A.G., (A-1623-09T2), decided October 14, 2010, held that such evidence is admissible, subject to rebuttal by the State, to prove that the defendant was nowhere near the crime scene.
Of course, the fact that the defendant’s vehicle was being driven on a certain date and certain time, times not establish conclusively the alibi defense, but is a piece of evidence that a judge or jury could consider when determining the validity of the defendant’s whereabouts.
Because New Jersey Law disallows the release of those records without a court order, it is essential that the defense attorney make an application for those records when the records are for a third party, other than the defendant.
It does not take much of an imagination to predict that a creative criminal defense attorney will subpoena the actual video New Jersey Turnpike or New Jersey Garden Parkway Video Feeds to actually show the defendant driving his or vehicle at the relevant times, to conclusively prove the defendant’s whereabouts.
Why It Is Important That a Defendant Immediately Retain An Attorney After His Arrest; A Criminal Defense Attorney’s Role In Obtaining Independent Exculpatory Evidence Before It is To Late.
There is an old rule of thumb in law enforcement, which says that if a crime is not solved within the first forty-eight hours, there is a good chance that the crime might never be solved. With each passing day the chance of solving a crime is diminished. Potential witnesses leave the area. Memories fade, environmental conditions change, evidence is destroyed, and suspects and potential witnesses flee.
This same rule of thumb holds equally true for the defense attorney and/or his investigator when examining the crime scene first hand. It is essential that the defense attorney as best he can attempt to visit the crime scene, if it is in public location, or private location with permission of the owner. Sometimes by doing this the defense attorney will notice evidence or potential exculpatory evidence which law enforcement has no interest in pointing out in their police reports. This also includes, but not limited to, interviewing potential witnesses, including alibi witnesses.
Like a detective investigating a crime, a defendant arrested for a crime must immediately, or soon as practical, contact and retain an attorney. and if resources permit, an investigator to examine all the aspects of the alleged crime.
Many times critical pieces of evidence for the defense such as surveillance video tapes will be destroyed or re-recorded over unless the defense attorney takes immediate steps to preserve these items for the defense.
Commercial video surveillance cameras are tremendously important for a defendant whose constitutional rights were violated in such cases as an unconstitutional motor vehicle stop, illegal search and seizure, police misconduct, and excessive force by the arresting officers, which are tremendously important. Sometimes facts like these, although not important at the beginning of the case later turn out to critical evidence in presenting the defendant’s theory of the case, through pretrial motions, and eventual trial.
Often the video surveillance tapes will contradict a dishonest cop’s police report. Often, but not always, the dishonest cop and his partners will canvas the immediate area to ascertain whether any surveillance tapes were in the area, before they prepare their police report.
In a recent case still pending, there was an illegal search of the defendant’s vehicle in the parking lot of a store. Prior to the defendant, being arrested, and without probable cause to search the entire vehicle, including a trunk of the vehicle. In this case the illegal seizure of the trunk of the defendant’s vehicle revealed a loaded handgun. When a weapon was found in the trunk, the police officers immediately closed the trunk, and had the vehicle towed, later attempting to obtain a consent to search the vehicle by the owner of the vehicle a third party.
Prior to the officer who conducted the illegal search prepared his police report, within hours of the arrest, he returned to the store, and demanded to see the video surveillance tapes of the parking lot. When he was convinced that the area of the search was not covered by the cameras, he left, convinced that he could now prepare his false report without the fear of being discovered.
In this case, the fact that the officer returned to the store and the parking lot, and viewed the tape, is credible evidence that he was concerned with his behavior.
In another recent case a confession to a homicide was suppressed after it was discovered that the arresting officer beat the defendant during the arrest and prior to the defendant’s voluntary statement being given.
In conclusion when a defendant waits in retaining defense counsel he seriously risks the chance that evidence that might help him win his case or prove his innocence might be lost forever. This is a risk that no defendant should take when his liberty is at stake.
Other trial techniques which I have written about in variouis blog articles.
1. How to win your criminal case by using a forensic meteorolgist. http://criminaldefensenj.blogspot.com/2011/08/how-to-win-your-criminal-case-use-of.html
2. How to win your criminal case; the lying and false witness. http://criminaldefensenj.blogspot.com/2011/12/obtaining-not-guilty-verdict-how-to-win.html
3. The necessity of having a cross-racial identification jury charge in the appropiate case for a fair trial http://vincent-sanzone.blogspot.com/2011/07/cross-racial-identification-conditional.html
4. Investigating the crime scene first hand. http://vincent-sanzone.blogspot.com/2008/11/investigating-crime-scene-first-hand.html
5. Police officer prohibited from testifying that he witnessed a street level sale. http://vincent-sanzone.blogspot.com/2011/04/no-to-police-officers-in-new-jersey.html
6. Police agencies and departments in New Jersey must retain all officers handwritten and other notes and must be turned over to defense counsel. http://vincent-sanzone.blogspot.com/2011/06/state-attorney-general-paula-t-dow.html
7. Forensic lab report hearsay without testimony of lab technician. http://vincent-sanzone.blogspot.com/2011/06/forsensic-lab-report-hearsay-without.html
8. No reasonable expectation of privacy for cell phone records http://vincent-sanzone.blogspot.com/2011/07/no-reasonable-expectation-of-privacy.html
9. State now prohibited from allowing police officer to claim that he witnessed street level drug activity taking place. http://vincent-sanzone.blogspot.com/2011/04/no-to-police-officers-in-new-jersey.html
10. Question of Jury Nullification http://vincent-sanzone.blogspot.com/2011/12/question-of-jury-nullification-does.html