In many, if not most harassment cases, the complaining witness is a private citizen as opposed to a police officer. This is because harassment, under NJSA 2C:33-4, usually involves some sort of alleged communication. This communication is not always memorialized in writing or recording. Therefore, the only basis for the complaint may be the statements of the alleged victim,
Even in instances where there are writings, such as text messages, emails, etc., or recordings, such as phone messages, the police will frequently elect to forego signing the complaint as the complaining witness and elect to have the accuser do so.
Whenever I represent someone who is charged with harassment offense in New Jersey, I always explore the possibility of requesting a probable cause hearing. A probable cause hearing is not a trial. It is a pre-trial hearing where the judge listens to a limited amount of testimony and determines, within the totality of the circumstances, viewing the facts in a light most favorable to the alleged victim, whether the case should proceed to the trial stage or be dismissed.
It has been my experience that lawyers who represent individuals charged with harassment do not make use of this pre-trial tool as much as they should. Although it could result in spending more time in court and making additional appearances, it is a great way to get the charges dismissed without having to expose a client to a trial.
It should be noted that the burden to show probable cause for the issuance of a harassment complaint is a relatively easy one to achieve for the accuser/complainant. However, I have found that many judges will see through the often frivolous and petty nature of the accusations and take appropriate action.
This was the case on two occasions within the last month in Newark. In both cases, my client was charged with what I believed to be bogus harassment charges. On both occasions, I requested probable cause hearings and the judge dismissed the charges.
I should note that probable cause hearings do not always result in a dismissal, and if a judge does find that probable cause exist for the issuance of a harassment complaint, it does not meant that the defendant is guilty. Actually, on several occasions, I have represented individuals who lost the probable cause hearing but won the trial.
The key is to request the hearing. The court may not always grant the request for a probable cause hearing, but if it does, then it essentially provides the defendant with two bites at the apple.