Passion Provocation and Self-Defense (Part 4)

The New Jersey Supreme Court concluded with the following in relevant part: Appellate courts during the appellate review process are better suited than trial courts conducting charge conferences to determine whether evidence is “jumping off the page” of the trial court record.

As part of the appellate review process, the parties can, aided by the transcript, cite relevant portions of the record to the panel in their written briefs. Appellate judges, therefore, are not left to review the record on their own. On the other hand, when deciding what to charge the jury at a charge conference, the trial court does not have the benefit of lengthy written briefs that cite relevant portions of the record. Instead, trial judges must make decisions based on limited briefing and argument in the pressured environment of an ongoing trial.

We therefore part ways with the Appellate Division as to its recommended procedural rule. Because we believe the current practice correctly balances the interests of the prosecution, the defense, and the public, we decline to adopt the proposed rule.

The judgment of the Appellate Division is affirmed as modified substantially for the reasons expressed therein. Chief Justice Rabner, Justice Patterson, Justice Solomon, Justice Pierre-Louis, Justice Wainer-Apter, and temporarily assigned Judge Sabatino joined in the per curiam opinion.

This is another example of an arguably overused “per curiam” opinion. Per curiam opinions are supposed to be reserved for cases that involve such a straightforward application of the law to the facts, that no individual judge has occasion to apply their individual analysis. That does not seem to be the case here given that the Appellate panel reached a different conclusion. The Supreme Court decision contained more than eight pages of analysis. The Appellate Division opinion contained more than 90 pages of analysis. A possible explanation for the decision to issue a per curiam opinion is for an individual judge to avoid a record of his or her decision being reversed by a higher court.