pressofAtlanticCity.com reported in “Judge denies motion to suppress Atlantic City councilman Marty Small’s testimony in voter fraud case” on October 7, 2010 that the state can use an Atlantic City Councilman’s grand jury testimony as evidence in a voter-fraud trial. The Atlantic City Councilman was accused of mishandling messenger ballots in a failed bid during the 2009 mayoral Democratic primary. His attorney argued the testimony should be suppressed because the man was told he was not a target of the investigation before he agreed to testify in front of the grand jury. The state argued that an investigator did not have the power to categorize someone as a target.

In criminal cases, when a defendant does not want evidence introduced at trial, defense counsel initiates a motion to suppress evidence by filing formal papers with the court. The court holds a hearing where the state has the burden of proof. Common evidence challenged are an incriminating document or a confession.

In determining whether a confession should be suppressed, the court looks to see whether there was an interrogation under custodial circumstances. United States v. Jones, 56 F.3d 581 (5th Cir. 1995) gives a balancing test to determine if there is a custodial interrogation:

(1) whether the suspect is informed during the interview that the questioning is voluntary, that s/he can ask the officers to leave, or that s/he is not considered under arrest, and whether the person’s conduct indicates an awareness of such freedom;
(2) whether the suspect possesses unrestrained freedom of movement during questioning;
(3) whether the suspect voluntarily acquiesces to official questioning or initiates contact with authorities;
(4) whether strong-arm tactics are used (e.g. police manifests a belief that the person is culpable and there is evidence to prove it, the police are aggressive, confrontational or threatening);
(5) whether there is a police-dominated atmosphere (e.g. where interview takes place or how many police officers participate);
(6) whether the suspect is placed under arrest at the termination of questioning;
(7) whether the express purpose of the interview is to question the person as a witness or a suspect; and
(8) how long the interrogation lasts.

According to the first factor, the state appears to argue in the Atlantic City Councilman case that though the questioning of the defendant may have been uncomfortable, it never rises to the level of custodial interrogation because he is informed during the interview that his questioning is voluntary, and that he is not under arrest.

When charged with a crime, engage an experienced New Jersey criminal defense attorney to prevent the prosecution from introducing confessions that violate constitutional rights.