State v. Carey R. Greene __ N.J. __ (2020)


In State v. Carey R. Greene __N.J. __ (2020), the New Jersey Supreme Court was faced with the issue of whether a prosecutor’s opening statement containing a detailed summary of a witness’ testimony of a confession to murder she allegedly heard deprived the defendants of their right to a fair trial when the witness recanted and refused to testify. The Court held, pursuant to the arguments set forth by Pashman Stein Walder Hayden (PSWH), that the telling of incriminating statements was not likely to be forgotten by the jury and therefore the defendant was entitled to a new trial. PSWH attorneys Alan Silber, a partner in the firm’s Criminal Defense Practice, and CJ Griffin, Director of the Stein Public Interest Center, represented amicus the Association of Criminal Defense Lawyers of New Jersey.

The case involved two defendants, Carey Greene and Tyleek Lewis, and third-party, known as A.J., who entered into a plea deal to testify against Greene and Lewis. In 2010, the State alleged that the three showed up to a man’s house with the intent to rob him. In the process, however, the man was shot and killed. The police then conducted a search of Greene’s grandmother’s home. During the search, the police questioned her and recorded her statements, in which she explained how her grandson had allegedly confessed to shooting the man. She later recanted during a pretrial hearing and stated that Greene had not actually confessed to her, but the recording the police took was considered admissible evidence. She said she “pled the Fifth” and would not testify further.

In his opening statement, the prosecutor told the jury that they would be meeting the grandmother at the trial and summarized her expected testimony that her grandson had confessed to her. Anticipating that the grandmother would recant her testimony and that the audio recording would be played, the prosecutor told the jury that the grandmother was “in a difficult position” and “stuck between the love of her grandson and testifying in court.” During the trial, Greene’s grandmother refused to take the oath and refused to answer additional questions. The court held that the recording could not be admitted because the defense would not be able to cross-examine it. The prosecutor argued that it should be admitted because it was the “single most important piece of evidence that could be brought against Greene.” Instead of a mistrial, the court instructed the jury to disregard the statements of Greene’s grandmother that were introduced by the prosecutor in his opening statement. Both Greene and Lewis were convicted.

The appellate court overturned the convictions because the opening statement was “too prejudicial” and the instruction to the jury was “woefully inadequate” and “could not unring the bell.” The New Jersey Supreme Court granted certification.  

PSWH argued the case for amicus curiae, Association of Criminal Defense Lawyers of New Jersey, and argued to the court that the alleged confession was “a powerful and indelible communication that could not be erased from the juror’s minds.” PSWH argued that the prosecutor’s statement violated the Confrontation Clause of the U.S. and New Jersey Constitutions and asked the court to disregard the good faith of the prosecutor in seeking a curative instruction to the jury since New Jersey jurisprudence warns about the dangers of providing too much detail in an opening statement that may not materialize.

Justice Albin wrote for the court and accepted the contention that a conviction resulting from an unfair trial cannot be saved because of the good faith of the parties involved. Moreover, while trials are not perfectly scripted and there are often variances between what is said in opening statements and what actually occurs in the trial, the promise of the single-most important piece of evidence not being delivered upon prejudices the defendants and constitutes a reversible error. Because the testimony of the grandmother was not was not “harmless beyond a reasonable doubt,” Greene was entitled to a new trial. 


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