outside a court’s jurisdiction may at one time have
excused the prosecutor from producing the witness,
“developments like the Uniform Act” have “increased
cooperation between the states themselves and between
the states and the federal government” requiring
prosecutors to engage in diligent efforts to produce
witnesses that may be beyond the court’s jurisdiction).
V. RIGHT TO FAIR TRIAL
The trial court is responsible for assuring that the
presumption of innocence is not lost any stage of the
proceedings because of extraneous factors. In State v.
Maisonet, 166 N.J. 9 (2001), defendant’s convictions
were reversed under the doctrine of fundamental fairness.
Defendant was denied basic necessities while in custody
with no justification by the State. As a direct result, he
appeared at trial dirty and disheveled and his physical
condition was palpable to any reasonable observer.
Furthermore, defendant’s credibility was at issue because
he testified at trial, and his co-defendant, who was on bail
and neatly groomed, testified against defendant. Co-
defendant was acquitted of the most serious charges while
defendant was convicted. Id. at 22-23.
In State v. Zhu, 165 N.J. 544 (2000), heightened
courtroom security measures did not deprive five co-
defendants a fair trial in gang-related multiple homicide.
Although he Sheriff is the presumed expert in security
issues, trial court has non-delegable duty to ultimately
approve such measures consistent with constitutional
protections to which all defendants are entitled. Id. at
557.
STALKINGSTALKINGSTALKINGSTALKINGSTALKING
Modeled after the 1990 California statute, the
stalking statute, N.J.S.A. 2C:12-10, addresses conduct
that “has been characterized as behavior exceeding
harassment but not yet advanced to assault or other more
serious crimes that involve overt threats or physical
contact.” State v. Saunders, 302 N.J. Super. 509 (App.
Div.), certif. denied, 151 N.J. 470 (1997). The statute is
constituted of two elements. First, defendant must
maintain “visual or physical proximity” to the victim on
two or more occasions. Second, defendant’s conduct
must be of a threatening nature that would cause a
reasonable person to fear bodily injury or death of himself
or herself and his or her family. Stalking was
denominated as a fourth degree crime punishable by a
term of imprisonment of up to eighteen months or a fine
of up to $7,500, or both. First enacted in 1992, the
statute was redrafted in 1996 and thereafter amended in
1998 to exclude conduct which occurs during organized
group picketing.In State v. Saunders, 302 N.J. Super. at 576,
defendant attacked the constitutionality of the pre-1996
statute, arguing that it was overbroad and vague. He
contended that the statute was overbroad because it
infringed upon his First Amendment rights to “expressive
activities.” The court, however, rejected this argument,
reasoning that it was not overbroad when applied to the
facts before it, which involved defendant’s repetitive
watching of the victim from a number of different
locations. Id. at 520. The court also disagreed with
defendant’s argument that the statute was impermissibly
vague, concluding that the scienter requirement
mitigated the statute’s vagueness. Id. at 522-23. And,
although not an issue, the court noted that the 1996
amended version of the statute was clearer regarding the
conduct prohibited. Id. at 523.The constitutionality of the amended version of the
stalking statute was similarly challenged in State v.
Cardell, 318 N.J. Super. 175, 181 (App. Div.), certif.
denied, 158 N.J. 687 (1999), also as being overbroad and
vague. As in the former case, the court declined to accept
defendant’s overbreadth claims, noting that although the
newer version of the statute had a broader reach, it was
linguistically clearer than the last and had the important
effect of adding protections for the victim. Id. at 184.
The court also found discreditable defendant’s secondary
claim of vagueness, reiterating its words in Saunders,
supra, that the statute clearly articulated the nature of the
conduct proscribed. Id. at 185.