To safeguard counsel’s ability to provide effective
assistance, he or she must be permitted full investigative
latitude, without risking a “potentially crippling
revelation” to the State of information which defense
counsel uncovers but chooses not to utilize at trial. State
v. Mingo, 77 N.J. 576 (1978).
When the defense hires two experts, but only offers
one as a witness, hearsay evidence relevant to the non-
testifying expert which was not relied upon by the
testifying expert to reach his opinion may not be
employed on cross-examination. Although the cross-
examiner may inquire as to whether the expert relied
upon certain hearsay evidence, if the answer is “no,” the
details of that hearsay evidence may not be used as the
basis for further cross-examination. To do so, would
permit the jury to hear testimony it otherwise would not
be permitted to hear. State v. Spencer, 319 N.J. Super.
284, 299 (App. Div. 1999) (prosecutor’s cross-
examination alerted jury to the fact that non-testifying
defense expert’s conclusion was consistent with the
State’s expert).
After prosecutor observed charts in jury room
illustrating jury’s deliberations in guilt-phase of capital
trial, jury had to be discharged and death penalty phase
of trial precluded, because defendant would have been
substantially and irremediably prejudiced by proceeding
on penalty phase with new jury. State v. Baker, 310 N.J.
Super. 128 (App. Div. 1998).
F. Indigents (See also, COSTS, INDIGENTS, this
Digest)
See generally, R. 3:4-2; Ross v. Moffit, 471 U.S. 600
(1974); Ake v. Oklahoma, 470 U.S. 68 (1985); State v.
R.D.G., 108 N.J. 1, 18 (1987); State v. Cantalupo, 187
N.J. Super. 113 (App. Div.), certif. denied 93 N.J. 274
(1983); State v. Cannady, 126 N.J. 486 (1991).
G. Waiver of Right to Counsel And Participation with
Counsel
Just as defendant has the right to be represented by
counsel, he or she also has the right to dispense with
counsel and to proceed pro se. Faretta v. California, 422
U.S. 806 (1975); State v. Ortisi, 309 N.J. Super. 573, 587
(App. Div.), cert. denied 156 N.J. 383 (1998). A
defendant can excise the right to self-representation only
by first knowingly and intelligently waiving his right to
counsel. McKasle v. Wiggins, 465 U.S. 168, 173 (1984);
State v. Crisafi, 128 N.J. 499, 509 (1992). However,
there is a presumption against waiver. State v. Ortisi,
supra; State v. Gallagher, 274 N.J. Super. 285, 295 (App.
Div. 1994).Before allowing defendant to waive his right to
counsel, a trial court must make a “searching inquiry” to
ensure that the waiver is made knowingly and
voluntarily, and that defendant understands the
consequences of the waiver. There is no specific litany of
questions required in every case, but defendant should be
advised of the following:- the dangers and disadvantages of self-
representation; - the nature of the charges, the statutory defenses to
those charges and the possible range of punishment; - the technical problems he may encounter in acting
as his own counsel and the risks he takes if the defense is
unsuccessful; - the necessity that he conduct his defense in
accordance with the relevant rules of criminal procedure
and evidence, that a lack of knowledge of those rules may
impair his ability to defend himself, and that his dual role
as attorney and defendant might hamper the effectiveness
of his defense; and - difficulties of acting as his own counsel, and the
court should specifically advise defendant that it would
be “unwise not to accept the assistance of counsel.” State
v. Crisafi, 128 N.J. at 510-12.
The validly of a wavier of counsel must be determined
on a case-by-case basis, considering the particular facts
and circumstances involved, including defendant’s
background, experience and conduct. Id.; State v.
Kordower, 229 N.J. Super. at 578; State v. Cole, 204 N.J.
Super. 618, 624 (App. Div. 1985).See also State v. Wiggins, 291 N.J. Super. 441, 449
(App. Div.), certif. denied 146 N.J. 568 (1996); State v.
Buhl, 269 N.J. Super. 344, 362 (App. Div.), certif. denied
135 N.J. 468 (1994); State v. Slattery, 239 N.J. Super.
534 (App. Div. 1990); State v. Kordower, 229 N.J. Super.
566 (App. Div. 1989).This same thorough inquiry must be made of
defendant before he or she is permitted to waive the right
to appellate counsel. State v. Coon, 314 N.J. Super. 426,
439 (App. Div.), certif. denied 158 N.J. 543 (1998).