# State v. McCrary > Supreme Court of New Jersey · June 26, 1984 · 97 N.J. 132 URL: https://www.frixlaw.com/law-library/cases/9752824 ## Case - **Full name:** State of New Jersey, Plaintiff-Appellant and Cross-Respondent, v. Victor McCrary, Defendant-Respondent and Cross-Appellant - **Court:** Supreme Court of New Jersey - **Decided:** June 26, 1984 - **Citations:** 97 N.J. 132; 478 A.2d 339; 1984 N.J. LEXIS 2695 - **Precedential status:** Published - **Opinion:** Concurrence by Handler - **Judges:** Clifford, O'Hern, Handler - **Cited by:** 63 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9752824 ## How later opinions describe it (automated extraction) - describing the “‘judicial power . . . vested in this Court . . . as the repository of the judicial power to fashion remedies. In no context is this judicial power to fashion remedies more appropriately exercised than in a criminal case.” (citation omitted) - stating that prosecutor’s conduct has been accorded presumption of validity ## Opinion text HANDLER, J., concurring. I concur in the judgment of the Court. I am satisfied generally to resolve the issue in this case under the standards expressed in the Court’s opinion. However, I entertain some reservations as to the ostensible looseness of the evidential requirements imposed by the Court on the prosecutor. The standards articulated by the Court assuredly should not be understood to permit or encourage prosecutors to convert homicide cases into capital prosecutions without a sound evidential basis. With respect to necessary judicial oversight, I have a similar concern over our adoption by analogy of the standard governing proceedings to dismiss indictments. While that standard is generally serviceable in this context, it should be understood that judicial review of prosecutorial decisions in this area should give explicit recognition to the inherent limitations upon prosecutorial discretion, since the exercise of that discretion *148 itself triggers the machinery of the criminal justice system that may ultimately result in the death penalty. I think it is fairly implicit that the court’s review of a prosecutor’s determination to proceed by way of a capital prosecution based upon an alleged aggravating factor must focus upon whether the determination is arbitrary or capricious or an abuse of prosecutorial discretion. Further, a prosecutor, in the pretrial notification to a defendant of an aggravating factor, need not be relegated to the use of evidence that necessarily satisfies strict or conventional rules of admissibility. Nevertheless, if any hearsay is used or presented to project an aggravating factor, such evidence should be critically assessed by the court, and disregarded if too attenuated or only marginally reliable. I express my position summarily and separately because neither the Court nor any of its members has yet considered the constitutionality of the capital provisions of the New Jersey Code of Criminal Justice (Code). There are several capital cases pending both at the trial level and on appeal before us — and their numbers are growing — that will present directly a plethora of issues implicating the constitutional validity of the capital provisions of the Code, as well as countless legal, statutory and procedural questions touching the validity, interpretation and application of these new criminal laws. I concede that it makes sense for the Court to adjudicate and resolve the question in this case at this time. Our interlocutory decision will at the very least settle for the moment the question of the appropriate procedural handling of an important threshold aspect of homicide prosecutions — whether the prosecution shall proceed as a capital case that can eventuate in the imposition of the death penalty. To this extent our decision lends greater certainty and — dare we hope? — uniformity and consistency in the trial of capital causes and, perhaps, will obviate consideration of this issue in later appeals. Still, our interim disposition of this issue in a way puts the cart ahead of the horse. It should be very clear, therefore, that our decision on this narrow pretrial question, rendered at an *149 interlocutory stage, in no way foreshadows judicial views on other issues, including constitutional ones, that will be addressed in capital cases reaching us later. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9752824. Public record. Not legal advice.