New Jersey’s criminal harassment statute has long occupied the space in which the messiest family law disputes cross over into the realm of criminal law. Although there are indeed many legitimate cases of harassment that deserve punishment, in recent years New Jersey appellate courts increasingly had noted that the harassment statute too often criminalized “ordinary domestic contretemps” – i.e. the non-violent verbal sparring that accompanies the disintegration of a marriage or romantic relationship. In the view of the courts (and many frustrated family law and criminal attorneys), New Jersey’s harassment statute was too permissive in allowing an angry spouse or romantic partner to file criminal or civil domestic violence charges after being subjected to hurtful or vile insults, even where there had been no actual violence or threat of harm.
In 2016, the New Jersey Supreme Court issued two opinions of particular importance for attorneys who regularly handle criminal domestic violence cases in New Jersey. In State v. Bryant, decided on November 10, 2016, the Court suppressed evidence found during a protective sweep search of a home after a 911 call reporting a crime of domestic violence. The opinion is extremely important for any defendant who has been charged with a crime based upon evidence uncovered during a police response to a domestic violence call.
In the past few years, the explosion in the popularity of smart phones, text messaging, and use of social media has dramatically altered the fabric of our lives in ways that we are only beginning to understand. It has also changed the way that sophisticated attorneys investigate and litigate criminal cases. We all now carry with us detailed records of our conversations, photographs, and even our whereabouts in our mobile phones. For those unlucky enough to become ensnared in a criminal case, those records can become evidence of incalculable value. This is especially so for cases of domestic violence, where the parties almost always have created a voluminous record of communications in the form of text messages and online chats by the time a contested matter goes to trial.
In the wake of the Josh Brown domestic violence incident, the National Football League has, in the public’s eyes, badly mishandled the imposition of discipline over a player accused of domestic violence for the third time in three years. While the headlines have portrayed the NFL as soft on domestic violence following the Ray Rice, Greg Hardy, and, now, Josh Brown cases, it appears to me, as someone who has supervised domestic violence prosecutions for the State of New Jersey, that the NFL’s problem is not that it is soft on domestic violence. I think the league wants to be able to investigate and punish domestic violence appropriately, but it is finding that it is not an easy task. The NFL is simply making mistakes that are fairly typical of a rookie prosecutor that is unfamiliar with domestic violence prosecutions.