1. The accused must consent.
   
   
2. The Court must do everything possible to minimize the disproportionate impact a partially remote trial proceeding is likely to have on juror demographics.
   
   
3. Jury selection must be primarily in person.
   
   
4. The jury must be in the room with the parties during the trial.
   
   
5. Attorneys must be able to communicate with their clients during the trial.
   
   
6. One size does not fit all; the parties must have flexibility to do what works best in each courtroom and in each trial.
   
   
7. New Jersey must improve jury selection post-pandemic.

August 6, 2019

The Association of Criminal Defense Lawyers of New Jersey (ACDL-NJ) was established in 1985 and its membership is currently composed of private attorneys, public defenders, law professors and various legal professionals.  The ACDL-NJ is the primary organized voice for the criminal defense bar and has been for many years.  

The ACDL-NJ was formed, among other very important reasons, to vigorously protect and defend those individual rights guaranteed to all people by the New Jersey and United States Constitutions. At the very core of those individual rights lies the Due Process Clause of the Fifth and Fourteenth Amendments and the presumption of innocence. ABA Resolution 114, which urges legislatures to adopt affirmative consent requirements and thereby redefine consent in criminal sexual assault cases, threatens to strip individuals accused of sexual assault of their basic rights to due process and the presumption of innocence. As currently constituted, Resolution 114 completely redefines consent in a manner that unconstitutionally shifts the burden of proof to the accused to affirmatively negate a claim of lack of consent by requiring the accused to establish the victim’s consent as “expressed by [the victim’s] words or action.”

Resolution 114 not only violates the presumption of innocence and the protections afforded by the Due Process Clause; it also threatens to eviscerate the defendant’s Fifth Amendment right to remain silent by forcing the defendant to testify to present evidence that consent was expressed. The ACDL-NJ has grave concerns that the Resolution, if adopted by the New Jersey Legislature, will increase the likelihood of wrongful convictions and essentially convert sexual assault statutes to strict liability crimes that focus solely on the victim and completely disregard the mental state of the accused. Criminal liability and exposure to lengthy prison terms should rarely, if ever, be based on an act without giving any consideration to the state of mind of the accused.

For the reasons expressed above, we stand with our national affiliate, the National Association of Criminal Defense Lawyers (“NACDL”), in vehemently opposing ABA Resolution 114 and fully endorse the NACDL’s position statement in opposition to Resolution 114. The NACDL’s statement also includes suggested alternate language which reaffirms the most basic legal tenet that the burden of proof on the issue of consent never shifts from the prosecution.

The ABA House of Delegates is scheduled to vote on Resolution 114 on August 12, 2019.  The ACDL-NJ urges New Jersey’s Delegates to vote NO on ABA Resolution 114.