Legal Writing Assignment #4 Trial Brief

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Legal Assignment #4

Please write  a  trial  level brief as the attorney for defendant  in support of your legal position as to why the tape of defendant should NOT be admitted into evidence.  In preparing your brief, please note the following:

Following the template from  njcourts  also posted in announcements  last week and discussed at length in class, the brief should contain the following sections , doubled spaced:

TABLE OF CONTENTS; 1 page

PRELIMINARY STATEMENT: 1 concise   paragraph

STATEMENT OF FACTS:  1-2 pages

LEGAL ARGUMENT: At least 4 pages, with citations

CONCLUSION:  1  concise paragraph

TABLE OF AUTHORITIES

For this assignment you do NOT need to do a cover page, table of judgments/orders, table of appendix, or an appendix.

Plaintiff and defendant were longtime dating partners who lived together in defendant’s home. Also residing with the parties were plaintiff’s two minor children from a prior marriage, A.B (age 12) and C.D (age 8).

Over time, the parties’ relationship  soured and became highly acrimonious.   As of October 1, 2018,   plaintiff was planning to  leave defendant and move out with her children to a new home which she was purchasing for herself. A closing date scheduled for early November, 2018, and  plaintiff continued   living with defendant on a transitional basis pending the closing.

On October 9, 2018,   plaintiff filed a domestic violence complaint requesting a temporary restraining order (TRO) against defendant.  She testified  that  on October 7, 2018, defendant, in a fit of anger, kicked her in the leg and shin,  and  kicked around her belongings as well.  Plaintiff  further testified that defendant  became verbally abusive by calling her obscene names, threatening to harm her, and ordering her to move out of the house without further delay.

Plaintiff  then alleged that on the following day, October 8, 2018, she suspected that defendant  had been intentionally tampering with    food which  she had been making for  herself   and her children. She  testified that  earlier  the same week, her children had both fallen  ill with stomach cramps, while  one child  incurring diarrhea that  required  him to stay home from school. When plaintiff subsequently went to reheat the leftover dinner she had made for the children  the day before, she  noticed that the food now  had a very watery consistency and a strong pungent odor.  Plaintiff threw out the food, but became concerned  that defendant, who had   grown very hostile towards her, had   secretly  contaminated the  food  in some fashion.

As a result,  on October 8th, plaintiff had again made dinner for herself and her children.  This time, however, plaintiff  put the food in  pots in the refrigerator,  hid a voice-activated tape recorder in the kitchen near the refrigerator, and then left the home with her children for approximately forty five minutes, Meanwhile, defendant remained in the home with his adult daughter from a prior relationship.

Within the hour, plaintiff  returned to the home,  retrieved the recorder and listened to the  “kitchen audiotape”, which she  proffers captured the following:

  1.   a) defendant telling his daughter that he was going to find out where plaintiff was moving, and then blow her      house up;
  2.    b) defendant handling the pots of prepared food, clearing his throat, and  then spitting phlegm into the food multiple times,  followed by a discussion  with his daughter about  how to  make the tampering  look  less obvious.
  3.    c) defendant  discussing with his daughter how he was secretly rubbing  his buttocks on the children’s laundry, while his daughter laughed.

After listening to  the kitchen tape, plaintiff filed  a domestic violence complaint, seeking  a restraining order against defendant.  Based upon her testimony,  a judge  granted plaintiff a temporary restraining order (TRO), and scheduled the case for a final hearing before the court, naming  plaintiff and her two  children as  additional protected persons under the order.

At final hearing, plaintiff sought to play the kitchen tape for the court and introduce the contents into evidence, as proof of defendant’s abusive intentions and the  necessity of a final restraining order for her protection under the Domestic Violence Act. In turn, defendant objected, alleging  that plaintiff’s surreptitious  taping of his  comments and actions violated his  right of privacy under  New Jersey’s  Wiretap Act, N.J.S.A. 2A:156A-1, et seq.  Defendant  contended that under the Wiretap Act, the court was required to suppress the kitchen tape  and  prohibit plaintiff from playing or otherwise using its  contents  in the  domestic violence proceedings.

Last Updated on April 27, 2020 by Essay Pro