State v. Leavitt, 107 N.J. 534 (1987), held a suspect
is not denied due process because he was not afforded an
opportunity to consult with counsel prior to the
administration of a breathalyzer test. Accordingly, it is
proper to advise the suspect that he has no right to refuse
to give a breath sample on the ground that he has not been
afforded counsel.
In Kentucky v. Stincer, 482 U.S. 730 (1987),
defendant’s due process right to be present at critical
stages of criminal proceedings against him was not
violated by his exclusion from a competency hearing
where the only questions asked of the child witnesses
concerned their competence to testify, not substantive
testimony.
Pennsylvania v. Finley, 481 U.S. 551 (1987) held an
indigent defendant has no Fourteenth Amendment due
process right to appointed counsel in post-conviction
proceedings when attacking a conviction that has become
final upon exhaustion of the appellate process. States are
under no obligation to provide post-conviction relief, and
when they do, fundamental fairness does not require the
state to provide counsel.
State v. Malik, 221 N.J. Super. 114 (App. Div. 1987).
Where there is a probable cause to believe that an arrestee
has recently ingested a controlled dangerous substance,
there is no violation of due process by requiring a urine
sample from the arrestee.
In the Matter of Daniels, 118 N.J. (1990), held
summary contempt power should only be used against
attorney appearing before court when attorney’s conduct
in actual presence of court has capacity to undermine
court’s authority and to interfere with or obstruct orderly
administration of justice. Where the person subject to
court’s summary contempt power is an experienced trial
attorney, due process does not require extending right to
counsel to that attorney. In determining whether to
exercise its summary contempt power, a court should
take the following steps: it should immediately evaluate
the gravity of the misconduct and decide whether it
should invoke its power to adjudicate contempt; once the
court has determined it should exercise contempt power,
it should immediately inform party that it considers act
contemptuous and afford party opportunity to explain
circumstances and thus avoid any need for adjudication;
depending on degree of contempt, the court must
evaluate whether it calls for immediate adjudication; if
immediate adjudication is called for, the court must
evaluate whether the record will adequately disclose
essence of contempt; if contempt involves personal insult
to the court, court should consider whether there is any
appearance of personal confrontation or loss of objectivity
that would require reference of matter to another judge;
and if conduct appears to be such that imprisonment may
be warranted and immediate action is not essential, both
more formal charging process and reference to another
judge would ordinarily be required.Bowers v. Hardwick, 478 U.S. 186 (1986). The due
process clause does not confer a fundamental right upon
a homosexual to engage in consensual sodomy. Thus, the
Georgia statue criminalizing such conduct did not violate
defendant’s Fourteenth Amendment rights.In Holbrook v. Flynn, 475 U.S. 560 (1986), presence
of four uniformed state police in the courtroom during
defendant’s trial did not violate defendant’s due process
right to have his case decided on the evidence rather than
circumstances not adduced at trial. Unlike the practices
of shackling or gagging a defendant, the noticeable
deployment of security personnel was not an inherently
prejudicial practice only to be justified by an essential
state interest. In making a determination of the
prejudicial effect of a courtroom procedure which may
single out an accused the question to be resolved by the
court is whether “an unacceptable risk is presented of
impermissible factors coming into play rather than an
articulation by jurors of consciousness of prejudice.”State v. Mercer, 211 N.J. Super. 388 (App. Div.
1986), decided that a defendant, prosecuted for driving
under the influence, was not denied due process as a
result of the police officer’s failure to inform defendant of
his entitlement to have an independent blood test
performed where the State has already had defendant’s
blood tested for alcoholic content.State in the Interest of K.A.W., 104 N.J. 112 (1986)
held a juvenile defendant is not denied due process where
the complaint charging him with sexual assault upon a
child fails to set forth the precise date of the offense but
the time period set forth is sufficient to give defendant fair
notice.State v. Hardy, 211 N.J. Super. 630 (App. Div. 1986),
concluded defendant’s due process right to be present at
every critical stage of his trial was violated by a municipal
court judge who conducted a remand hearing with
neither defendant, nor his attorney being present.