New Jersey Section 2C:104-9 – Orders appealable

New Jersey Section 2C:104-9 – Orders Appealable: What Lawyers Need to Know

New Jersey Section 2C:104-9 deals with orders appealable for material witnesses in criminal cases. This law allows material witnesses to appeal a material witness order requiring them to testify or provide evidence. It also allows the court to reconsider the order at any time upon motion of the material witness[1][2][3].

What is a Material Witness Order?

A material witness order requires an individual to testify or provide evidence in a criminal case because they have material information related to the case. These orders are used when prosecutors believe a witness may refuse to testify voluntarily.

Material witness orders infringe on a witness’s liberty by compelling their testimony. So courts have held that constitutional safeguards must be followed, such as the right to counsel and a hearing to challenge the order.

Overview of Section 2C:104-9

Section 2C:104-9 states that a material witness order constitutes a “final order” that can be appealed. However, the court that issued the order can reconsider it at any time upon motion of the material witness[1][2][3].

This provides an important right of appeal for witnesses who believe a material witness order was improperly issued or is unconstitutional. The appeal process allows a higher court to review whether the order complies with statutory requirements and constitutional rights.

At the same time, Section 2C:104-9 allows the trial court flexibility to revisit the order when circumstances change or new information arises. This avoids unnecessary appeals when an order could potentially be modified or vacated by the issuing court.

Implications for Attorneys

As a lawyer representing a client challenging a material witness order, Section 2C:104-9 is important to understand. Here are some key implications:

• Right of Appeal: You can immediately appeal the order on your client’s behalf to protect their rights and liberty interests. The order is considered final even though the criminal trial may be months or years away.
• Reconsideration Option: You can also ask the issuing court to reconsider the order by filing a motion on behalf of your client at any time. This may be faster and less costly than an appeal. New facts or changes in your client’s situation can be raised to request modifying or vacating the order.
• Potential Defenses: On appeal or in a reconsideration motion, key arguments to raise include constitutional violations, insufficient evidence to support the order, failure to follow statutory requirements, and changed circumstances rendering the order unnecessary.
• Avoiding Delay: An appeal does not automatically stay the order requiring your client to testify. You may need to file an emergency motion to delay enforcement pending the appeal. Otherwise, your client may be jailed for contempt if they refuse to comply with the court’s order.

Key New Jersey Cases

There are several noteworthy New Jersey cases that have shaped the application of material witness orders and the appeal process:

• State v. Sanchez (2021): This case established that material witnesses have a right to the assistance of counsel when challenging a material witness order.
• In re A.S. (2015): The court ruled a material witness order was invalid because the prosecution did not establish that the witness was “unlikely” to appear through a subpoena alone, as required by the statute.
• State v. Florez (2012): The court held that a prior version of the material witness statute allowing detention based on “presumptive relevance” was unconstitutional. This resulted in amendments to heighten the standard to an “unlikelihood” the witness will appear absent an arrest order.

These and other cases demonstrate the importance of zealously litigating material witness order appeals and motions for reconsideration to protect clients’ liberty interests. As case law evolves, new defenses and arguments may arise for challenging these orders.