ASSEMBLY JOINT RESOLUTION

No. 34

STATE OF NEW JERSEY

214th LEGISLATURE

 

INTRODUCED FEBRUARY 11, 2010

 


 

Sponsored by:

Assemblywoman  CAROLINE CASAGRANDE

District 12 (Mercer and Monmouth)

 

 

 

 

SYNOPSIS

     Provides for a forfeiture by wrongdoing exception to the hearsay rule by amending the Rules of Evidence.

 

CURRENT VERSION OF TEXT

     As introduced.

  


A Joint Resolution pursuant to P.L.1960, c.52 proposing an amendment to the Rules of Evidence. 

 

Whereas, Rule 804 (a) of the New Jersey Rules of Evidence specifies the circumstances in which a person will be deemed to be “unavailable” as a witness in a trial to satisfy the condition for admission of his prior statement into evidence under the hearsay exception; and

Whereas, In accordance with these evidentiary rules a person’s prior statement will be admitted into evidence if the statement satisfies one of the enumerated hearsay exceptions under Rule 804 (b) of the New Jersey Rules of Evidence; and

Whereas, The majority of the hearsay exceptions enumerated in Rule 804 (b) of New Jersey’s Rules of Evidence are generally similar to those exceptions enumerated in the Federal Rules of Evidence, except for the forfeiture by wrongdoing exception.  This exception provides that a statement offered against a party that has engaged in, directly or directly, wrongdoing that was intended to, and did, procure the unavailability of the witness is not excluded by the hearsay rule; and

Whereas, The absence of a forfeiture by wrongdoing exception to New Jersey’s hearsay rule curtails the prosecutor’s ability to use a statement made by a witness who refuses to testify because of alleged threats, coercions, and intimidation; and

Whereas, As the Supreme Court of New Jersey noted in its recent decision, State v. Byrd, 198 N.J. 319 (2009), the forfeiture by wrongdoing exception to the hearsay rule has not only been adopted by the federal courts, but also by many states; and

Whereas, The Court in the Byrd decision rejected the adoption of a forfeiture by wrongdoing rule by judicial decision concluding that such a fundamental change in the hearsay rules should be adopted in accordance with the procedures set forth in the Evidence Act of 1960, P.L.1960, c.52 (C.2A:84A-38 et seq.); and

Whereas, Pursuant to the Evidence Act of 1960, P.L.1960, c.52 (C.2A:84A-38 et seq.), which provides for the adoption of rules of evidence without the necessity for presentation at a Judicial Conference, the Supreme Court of New Jersey has asked the Legislature and the Governor to act expeditiously to adopt a forfeiture by wrongdoing exception to the hearsay rules; now, therefore,

 

     Be It Resolved by the Senate and General Assembly of the State of New Jersey:


     1.    Pursuant to section 38 of P.L.1960, c.52 (C.2A:84A-38), the Supreme Court of New Jersey may adopt the rules specified in this section in the form set out, at any time after this joint resolution has been delivered to and signed by the Governor of the State of New Jersey, by entering an order that the rules are adopted and by causing true copies of its order of adoption to be delivered to the President of the Senate, the Speaker of the General Assembly and the Governor, without again presenting the subject matter and a tentative draft of rules at a Judicial Conference.

 

     Rule 804 is amended to read as follows:

     Rule 804. Hearsay Exception: Declarant Unavailable

     (a) Definition of unavailable. Except when the declarant’s unavailability has been procured or wrongfully caused by the proponent of declarant’s statement for the purpose of preventing declarant from attending or testifying, a declarant is “unavailable” as a witness if declarant:

     (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the statement; or

     (2) persists in refusing to testify concerning the subject matter of the statement despite an order of the court to do so; or

     (3) testifies to a lack of memory of the subject matter of the statement; or

     (4) is absent from the hearing because of physical or mental illness or infirmity, or other cause, and the proponent of the statement is unable by process or other reasonable means to procure the declarant’s attendance at trial, and, with respect to statements proffered under Rules 804(b)(4) and (7), the proponent is unable, without undue hardship or expense, to obtain declarant’s deposition for use in lieu of testimony at trial.

     (b) Hearsay exceptions.  Subject to Rule 807, the following are not excluded by the hearsay rule if the declarant is unavailable as a witness.

     (1) Testimony in prior proceedings.

       (A) Testimony given by a witness at a prior trial of the same or a different matter, or in a hearing or deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive in the prior trial, hearing or proceeding to develop the testimony by examination or cross-examination.

       (B) In a civil action or proceeding, and only when offered by the defendant in a criminal action or proceeding, testimony given in a prior trial, hearing or deposition taken pursuant to law to which the party against whom the testimony is now offered was not a party, if the party who offered the prior testimony or against whom it was offered had an opportunity to develop the testimony on examination or cross-examination and had an interest and motive to do so, which is the same or similar to that of the party against whom it is now offered.

     Expert opinion testimony given in a prior trial, hearing, or deposition may be excluded, however, if the judge finds that there are experts of a like kind generally available within a reasonable distance from the place in which the action is pending and the interests of justice so require.

     (2) Statement under belief of imminent death.  In a criminal proceeding, a statement made by a victim unavailable as a witness is admissible if it was made voluntarily and in good faith and while the declarant believed in the imminence of declarant’s impending death.

     (3) Statement against interest. -- [Adopted in 1993 as Rule 803(c)(25)]

     (4) Statement of personal or family history. A statement (A) concerning the declarant’s own birth, adoption, marriage, divorce, legitimacy, ancestry, relationship by blood, adoption, or marriage, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) concerning the foregoing matters, and the death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other’s family as to be likely to have accurate information concerning the matters declared.

     (5) Other exceptions. -- [Not Adopted]

     (6) Trustworthy statements by deceased declarants. In a civil proceeding, a statement made by a person unavailable as a witness because of death if the statement was made in good faith upon declarant’s personal knowledge in circumstances indicating that it is trustworthy.

     (7) Voters’ statements. A statement by a voter concerning the voter’s qualifications to vote or the fact or content of the vote.

     (8) Forfeiture by wrongdoing. A statement offered against a party who has engaged, directly or indirectly, in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

 

     2.    The rules set forth in section 1 of this joint resolution, if ordered adopted by the Supreme Court of New Jersey, shall take effect on the date set forth in the order of adoption.

 

     3.    This joint resolution shall take effect immediately upon signature thereof by the Governor; and the Secretary of State is directed to transmit an authenticated copy forthwith to the Chief Justice of the Supreme Court of New Jersey.


STATEMENT

 

     This joint resolution would amend the New Jersey Rules of Evidence to provide for a forfeiture by wrongdoing exception to the hearsay rule as proposed by the Supreme Court of New Jersey in State v. Byrd, 198 N.J. 319 (2009). 

     On April 2, 2009 the Supreme Court of New Jersey, in State v. Byrd, forwarded to the Legislature for approval a “forfeiture by wrongdoing” exception to the hearsay rule.  Under the New Jersey Rules of Evidence, hearsay is not admissible in court except as provided by particular court rules or other law.  Currently the New Jersey Rules of Evidence set out several exceptions to the hearsay rule, but do not include a forfeiture by wrongdoing exception. 

     Currently Rule 804 of the New Jersey Rules of Evidence provides for an exception to the hearsay rule if a person is “unavailable” as a witness in a trial.  Rule 804 specifies the circumstances in which a person will be deemed to be unavailable for this purpose, thus allowing admission of this person’s prior statement into evidence under the hearsay exception.  Under this rule, a person’s prior statement will be admitted into evidence if the statement satisfies one of the enumerated hearsay exceptions under Rule 804(b).  These exceptions are as follows: testimony given by a witness at a prior proceeding; statement made under the belief of imminent death; statement against interest; statement of personal or family history; trustworthy statements by deceased declarants; and statements by a voter concerning the voter’s qualifications to vote or the fact or content of the vote.

     The majority of these hearsay exceptions are similar to those exceptions enumerated in the Federal Rules of Evidence, except for the forfeiture by wrongdoing exception.  This exception provides that a statement offered against a party that has engaged, directly or indirectly, in wrongdoing that was intended to, and did, procure the unavailability of the witness is not excluded by the hearsay rule.

     The absence of a forfeiture by wrongdoing exception to New Jersey’s hearsay rule curtails the prosecutor’s ability to use a statement by a witness who refuses to testify because of alleged threats, coercion and intimidation by the defendant. The adoption of a forfeiture by wrongdoing exception to the hearsay rule would enable the court, under certain circumstances, to consider the evidence that the witness would have presented if available.

     “The Evidence Act of 1960”, P.L.1960, c.52 (C.2A:84A-38 et. seq.), provides a procedure for the adoption of rules of evidence without the necessity for presentation at a Judicial Conference.  Pursuant to the “Evidence Act of 1960”, and upon recommendation of the Supreme Court of New Jersey in State v. Byrd, it is the sponsor’s intent to provide for the accelerated adoption of a forfeiture by wrongdoing exception to the hearsay evidence rule.