Criminal Admissibility of Civil Forfeiture Answers (Part 2)

by | Apr 4, 2020 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

The New Jersey Supreme Court continued in relevant part: In light of the above analysis, it is not necessary to consider the scope of Simmons v. United States (1968). In that case, a defendant moved to suppress a suitcase found in his mother’s home, which contained evidence linking him to a bank robbery. Id. at 380-81. To establish standing, he testified that the suitcase was similar to one he owned, and that he owned the clothing found inside it. Id. at 381. That testimony was used against him at trial. Ibid.

The United States Supreme Court found it “intolerable” that a defendant should either have “to give up what he believed . . . to be a valid Fourth Amendment claim or . . . to waive his Fifth Amendment privilege against self-incrimination.” Id. at 394. The Court therefore held “that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.” Ibid.

Three years later, in McGautha v. California (1971), the Court limited Simmons and raised questions about the breadth of its reasoning. Because our ruling relies on Garrity, we need not decide whether Simmons would apply to the circumstances presented in this case. We also need not reach defendant’s other arguments under the Fifth or Sixth Amendments or the doctrine of fundamental fairness.

We reject the State’s argument that defendant’s civil forfeiture answer was admissible under N.J.R.E. 803 (b)(1) as a statement by a party-opponent. A statement obtained in violation of a constitutionally protected right is inadmissible in the State’s case in chief even if it satisfies a rule of evidence.

The Appellate Division aptly noted that criminal defendants who are served with a civil forfeiture complaint should receive enhanced notice about certain issues. We agree. Defendants should be advised of the following: (1) they may wish to consult with a lawyer about how best to proceed; (2) the State may not use any statements made in an answer to a forfeiture complaint in its case in chief in a related criminal case; and (3) defendants may file a motion to stay the civil forfeiture action under N.J.S.A. 2C:64-3(f). Whenever practicable, the State should also serve a courtesy copy of the forfeiture complaint on defense counsel when a companion criminal case is pending, so that counsel can offer basic legal advice or make a referral.

To comply with the Appellate Division’s ruling, the State began providing other defendants in civil forfeiture actions with enhanced written notice. The notice tracks the Appellate Division’s guidance and reasoning, which has been modified.

We refer the matter to the Clerk of the Superior Court to consider any changes to the standard form summons now in use. We also refer these issues to the Civil and Criminal Practice Committees for their consideration.

The Court’s modifying language “whenever practicable” and use of the term “should” instead of “shall” does little to protect defendants’ rights. It sends a clear message to prosecutors that there is no suppression remedy for a failure to serve their attorneys with notice. It is hard to imagine why it would not be “practicable” to serve an attorney of record with notice. It is easy to imagine how many defendants would not appreciate the importance of asserting their property rights and/or would not know how to do so.