For years, courts around the country have admitted “expert” testimony on bitemark analysis. These so-called experts have opined that bitemarks on human skin, often presented in sexual assault and murder trials, are distinct and “match” the defendant’s dental records.

A new comprehensive federal report from the National Institute of Standards and Technology (NIST), still in its draft/commentary stage, finds quite the opposite. The report states in relevant part, “forensic bitemark analysis lacks a sufficient scientific foundation because the three key premises of the field are not supported by the data . . . . First, human anterior dental patterns have not been shown to be unique at the individual level. Second, those patterns are not accurately transferred to human skin consistently. Third, it has not been shown that defining characteristics of those patterns can be accurately analyzed to exclude or not exclude individuals as the source of a bitemark.”

Bitemark analysis relies on the assumptions that teeth marks are unique, that they reliably transfer to surfaces such as skin, and that the marks can then be analyzed and linked to specific individuals. The NIST Report notes that it is not clear that bites leave distinct patterns because bites usually consist only of the front (anterior) teeth and the marks they leave can vary greatly depending on injuries, breakages, or obstructions. Second, skin is the surface most often analyzed for bitemarks, but it’s malleable and doesn’t reliably hold teeth marks over time depending on the rate and amount of swelling at the site, healing, and skin elasticity. Third, linking bitemarks that may or may not be unique, left on elastic surfaces that swell and heal, to people is riddled with uncertainty.

The Report’s key takeaways reveal that bitemark analysis lacks sufficient scientific foundation; dental patterns have not been shown to be unique; those patterns are not accurately transferred to human skin consistently; there is a lack of data to demonstrate that anterior (front teeth) dental patterns are unique; a number of studies have shown high levels of inaccuracies; and there is insufficient support in the scientific community as to the accuracy of such analysis.

Bitemarks, along with hair and shoe prints analysis, all have been debunked to a large extent in recent years as lacking objective test of scientific validity. Yet, scores of defendants remain in prison based, at least in part, on highly questionable “expert” analysis and testimony. The scope of the problem was evidenced in 2015, when the FBI admitted that nearly every one of the experts at its microscopic hair analysis lab had given scientifically invalid testimony. This erroneous testimony affected close to 270 cases, of those, 32 defendants were sentenced to death and 14 were executed or died in prison.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend our clients’ rights, including moving to exclude faulty analysis of crime scene “evidence”. To contact the firm’s NJ office, call 908.301.9001 and to contact the firm’s NYC office, call 212.755.3300, or email Mr. Stahl at rstahl@stahlesq.com.

In response to a dramatic surge in car thefts across New Jersey, State Attorney General Matt Platkin announced today that he is reversing a policy that prevented police officers from pursuing stolen cars. In late 2021, Platkin effected a statewide policy that prohibited police from chasing a stolen car unless they suspected it had been used in the most serious of crimes, such as murder, vehicular homicide or kidnapping. Thus, the A.G.’s policy prohibited police from pursuing a car simply because it had been stolen.

After scores of stolen vehicles, and complaints from citizens, local government officials and police, Platkin relented to now permit police to chase a car they think has been stolen.

Last year, Platkin said he wanted to limit police chases because high-speed car chases are dangerous, and can put police officers and innocent drivers alike at risk. It was part of an overhaul led by Governor Murphy to reduce the use of force by police. However, with motor vehicle thefts up 127% from last January state officials recognized that the policy needed to be changed.

In addition, Platkin and Gov. Murphy announced that the state would use $10 million in American Rescue Plan funds to purchase automated license plate recognition technology. The funds will allow local police departments to purchase high-speed, automated camera systems that capture and store computer-readable images of license plates. These license-plate readers will be placed at “strategic locations throughout” towns and the N.J. State Police will also deploy cameras along major highways.

According to the Attorney General’s office, the most commonly stolen luxury vehicles are BMW X6, Land Rover Range Rover Sport, Audi Q5 and BMW X3.

The top vehicles stolen statewide in 2022 include Honda Accord, Jeep Grand Cherokee, Honda CR-V, BMW X5 and BMW 3-Series.

High speed chases are dangerous to the officers involved, as well as innocent drivers and pedestrians that may be injured when the stolen vehicle or the police crash. Police must use common sense, as well as policy guidelines, in their pursuits. More often than not, a stolen vehicle is just that – stolen – not a car being used to commit a serious felony. Many high end cars are stolen from wealthy suburbs because the owners negligently leave the keys in their car in their driveway or unlocked garage. Others are left running at convenience stores while their owners run in for a quick purchase. These types of thefts are crimes of opportunity and can be easily eliminated. Other car thefts involve use of force, specialized electronic equipment or fraudulent schemes that obtain access to vehicles that are much more difficult to combat.

Stahl Gasiorowski Criminal Defense Lawyers have extensive experience representing individuals charged with federal and state felonies. To contact the firm’s NJ office, call 908.301.9001 and to contact the firm’s NYC office, call 212.755.3300, or email Mr. Stahl at rstahl@stahlesq.com.

It’s 6 a.m. or 8 p.m., your doorbell rings and two people are standing outside holding up their badges and credentials. They say they are Special Agents with the FBI or IRS and would like to talk with you for just a few minutes about something important. They ask if they could come in to speak with you privately. Caught off-guard, and not wanting them to think that you have anything to hide, you invite them in (and, of course, you don’t want your neighbors to see them talking to you on your front steps). The agents are “friendly” and just have a few questions to get your input, your side of things, or to serve you with a grand jury subpoena. You decide to talk to them, only for a few minutes, in the comfort of your own home or office. At the end, they thank you for your time and hand you either a grand jury subpoena or a “target letter.”

After they leave, you start to wonder – what did I say? How much did I tell them? Am I in trouble, did I implicate myself or others? You start to look for an attorney. You can’t ask your family or friends who they hired last time the FBI or IRS visited them because you don’t know anyone who ever faced such a situation. So, you scour the internet to find an experienced criminal defense attorney, one with a lot of federal experience because it’s a federal investigation.

The next day you’re in the attorney’s office. After talking to the attorney you realize that what you thought was an innocuous 15 -30 minute chat with the FBI was actually an hour and a half where you told them some things, but not others. You discover that it is a federal crime to lie to the agents. You learn that it doesn’t matter that they didn’t read you your rights, like in the movies, because you weren’t “in custody.” When you tell the lawyer that you only spoke to them because you didn’t want the agents to think you were involved or guilty, the lawyer tells you that the agents already think that you’re involved, that’s why they were at your house to interview you in the first place. You then learn that there were two agents so that the interview was witnessed by two of them for credibility later on if you dispute what you said. You learn that a “target letter” is issued by an Assistant U.S. Attorney because she believes that you are involved in criminal activity and wants you to come in with your attorney to negotiate a plea of guilty. You realize that it was a mistake to say anything to the agents without first talking with an experienced white-collar criminal defense attorney.

So, what should you do in such a situation? The safest course would be to politely tell the agents that while you would like to talk with them, you need to contact your attorney and that he will get back to them. Ask them for their business cards so that you can give the information to your attorney. If they don’t have cards, write down their names, agency and contact information. Do not under any circumstances talk with them about the subject matter of their investigation. After they leave, contact an experienced criminal defense attorney to discuss your rights, potential exposure and your options.

If you did talk with the agents, experienced criminal defense counsel can help you get through the situation and protect your rights going forward. The task will be to mitigate any statements made and develop an overall strategy to succeed.

Stahl Gasiorowski Criminal Defense Lawyers have successfully represented hundreds of individuals under federal and state investigations. To contact the firm’s NJ office, call 908.301.9001 and to contact the firm’s NYC office, call 212.755.3300, or email Mr. Stahl at rstahl@stahlesq.com.

The root of due process lies in the 5th Amendment to the U.S. Constitution, which states that no one shall be deprived of life, liberty or property without due process of law. In addition to the Constitution itself, both federal and state rules of criminal procedure also help to ensure that the due process rights of the accused are respected from the time of arrest through pretrial and trial proceedings and during sentencing if the trial results in a conviction.

The right to due process is so significant that it is referred to twice in the Constitution; in addition to the 5th Amendment, it also appears in the 14th Amendment, which effectively superimposes elements of the Bill of Rights onto state legal systems such as that of New Jersey. Procedural due process concerns itself with ensuring that the legal system observes constitutional rights included in the 4th, 5th, 6th and 8th Amendments.

Not every matter that finds its way before a court will invoke due process concerns. For due process to be an issue, there must by some action by the government. This includes meeting the requirements for the issuance of a search or arrest warrant, and whether probable cause exists to detain a person before trial.

What are some procedural due process rights in criminal cases?

Due process in criminal law is largely established in the Bill of Rights to the U.S. Constitution. These include but are not limited to protections against unreasonable search and seizure, the rights of a defendant after arrest (which also contains the specific “due process” language), the right to a public and speedy trial and to have the assistance of legal counsel, and limitations on excessive bail requirements or cruel and unusual punishment.

In later posts we will examine specific due process elements, most notably the relevant amendments to the U.S. Constitution that form the core of procedural due process, in more detail.

• The right to a speedy and public trial. In undemocratic legal systems courts are often used as a tool of political oppression. Holding a person in custody indefinitely “pending trial” is one way that the government can effectively imprison a person without ever having a trial. The Sixth Amendment ensures that in New Jersey and elsewhere in the United States these forms of judicial abuse are proscribed.

• The right to a trial by an impartial jury. Criminal trials must be decided by a jury, and not by a judge alone. This is a safeguard against Star Chamber-style proceedings, in which judges appointed by and acting on behalf of the government can deny the right of the accused to an adequate defense.
• The right to be informed of the nature and cause of the accusation. The Sixth Amendment requires the government to let you know what it is accusing you of, so that you and your defense counsel can prepare a defense accordingly.
• The right to confront witnesses against you. Another way for the government to abuse the system of justice is to use “secret” witnesses or hearsay testimony. The Sixth Amendment preserves your right to know who the government’s witnesses are, and to challenge them directly. Note, though, that in some limited circumstances, such as child victims of sexual abuse, the right to face-to-face confrontation of prosecution witnesses may be curtailed.
• The right to present witnesses in defense. The ability to conduct an effective defense depends on right of the defendant to call upon witnesses. The Sixth Amendment safeguards this right, and even provides the compulsory ability to make such witnesses available if need be.
• The right to defense counsel. The right to an attorney before trial is protected by the Fifth Amendment. The Sixth Amendment extends your right to an attorney into the conduct of the criminal trial.

In summation, the Sixth Amendment gives criminal defense attorneys a set of tools to ensure that your rights are preserved not only when you are arrested but also when you are being held in custody pending trial and during trial.

Although it is only a single paragraph long, this amendment includes a considerable array of protections for criminal defendants in New Jersey, which are outlined below.

Grand jury indictment requirement: The main role of the grand jury is to determine if probable cause exists to bring an indictment against a person. A grand jury is largely an investigative body, and is not the same thing as a criminal trial jury, the responsibility of which is to decide questions of evidentiary fact during the prosecution of a case.

Double jeopardy safeguards: The Fifth Amendment requires that the prosecution take its best shot one time only. If it fails to secure a conviction, it cannot retry the defendant for substantially the same offense.

Not having to testify against yourself: The Fifth Amendment prohibits prosecutors from calling a criminal defendant to the stand to testify, thereby converting the defendant into a witness against himself. The “right to remain silent” that police officers must inform a criminal suspect of at the time he is taken into custody is a reminder of this important Fifth Amendment protection, as are the other “Miranda rights” including the right to consult with an attorney before and during questioning and to have an attorney appointed to him by a court if he cannot afford to hire one, as well as the warning that any statement he makes can and will be used against him at trial.

Note that if the defendant testifies on his own behalf, the Fifth Amendment does not preclude the prosecution from cross-examining him. Also, if the government grants immunity from prosecution in a criminal case, then it can compel a person to testify as a witness even if the testimony would otherwise be self-incriminatory.

The right to due process: A criminal proceeding must be overseen by an impartial judge, and allow the defendant the opportunity to fully present his defense during all phases of his involvement with the criminal justice system – from initial custodial questioning all the way through post-trial appeals.

The Eighth Amendment is one of the shortest in the Constitution, comprising a single sentence, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

This elegance of simplicity in its language, however, can be misleading. The amendment in fact contributes to procedural due process protections in multiple ways.

Excessive bail: The question of whether an amount set as bail for someone accused of a crime is excessive has two facets: preventive detention situations, and whether a bail amount is more than is necessary to protect the government’s interest in a given case.

Preventive detention refers to matters in which bail is denied to someone because of the fear that if released on bail that person would represent a danger to the community. This is generally not subject to challenge under the Eighth Amendment, although the accused has the right to an adversary hearing before the court before bail can be denied. Otherwise, what makes bail “excessive” is when the amount is set so high that it becomes more than what is reasonably necessary to ensure that the accused will stand trial.

Excessive fines: This part of the amendment mostly applies to criminal sanctions, although it may be applicable to civil forfeiture cases. Excessive fines have not yet been the subject of any significant court case.

Cruel and unusual punishments: A punishment is excessive if it makes no measurable contribution to acceptable goals of a punishment (that is, the punishment simply a needless imposition of pain and suffering) or is grossly out of proportion to the severity of the crime. This part of the amendment has been considered mainly in the context of death penalty cases. Although the U.S. Supreme Court has held that the death penalty itself is not cruel and unusual, it has curbed some laws that apply it based on factors such as whether the law did not provide enough discretion to the jury it the application of a death sentence.

The 4th Amendment safeguards against unreasonable searches and seizures of persons and property, and except for situations that courts have carved out as exceptions (see below) requires the use of search and arrest warrants based on probable cause. Evidence gathered by the police in violation of the 4th Amendment cannot be used against you; courts have referred to this exclusion as the “fruit of the poisonous tree” rule.

Characteristics of the 4th Amendment include:

• As with due process rights overall, it protects against government action and not actions of private individuals.
• It is not a prohibition on all searches and seizures. To qualify for its protection, you must have a reasonable expectation of privacy in the place or the item that the police seek to seize.
• What constitutes a “search or seizure” depends on the immediate circumstances. For example, if a police officer stops you on the street and starts asking you questions, that is not a search or a seizure (and conversely you are not obligated to answer any of those questions). But if the officer seeks to search your clothing or personal effects without a warrant, then he must have at least a reasonable suspicion in advance that you have been engaged in some criminal activity.
• If a police officer has probable cause to believe that you have committed a crime, then he can arrest you without having to obtain an arrest warrant first. Or, if you have committed a misdemeanor crime in the officer’s presence no arrest warrant is needed. But unless the officer is in “hot pursuit” of someone who has committed a felony and is trying to flee, any arrest in a private place will ordinarily require the issuance of an arrest warrant.

In our next post on the topic of your due process rights, we will cover the Fifth Amendment protections that you have available when you have been charged with a federal or New Jersey criminal offense.