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:
- a) defendant telling his daughter that he was going to find out where plaintiff was moving, and then blow her house up;
- 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.
- 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