SENATE, No. 2628

STATE OF NEW JERSEY

214th LEGISLATURE

 

INTRODUCED JANUARY 6, 2011

 


 

Sponsored by:

Senator  NICHOLAS P. SCUTARI

District 22 (Middlesex, Somerset and Union)

Senator  GERALD CARDINALE

District 39 (Bergen)

 

 

 

 

SYNOPSIS

     Authorizes exception to the hearsay rule for certain out-of-court statements by witnesses in cases involving a crime.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning the testimony of certain witnesses and supplementing Title 2A of the New Jersey Statutes.

 

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

 

     1.    a.  In a criminal proceeding involving a crime, 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 is not excluded by the hearsay rule.

     b.    Notwithstanding any provisions of the Rules of Evidence or the Rules of Court to the contrary, the trial court shall conduct a hearing outside the presence of the jury to determine whether the witness’s out-of-court statement shall be admitted into evidence because the defendant engaged in wrongful conduct, making the witness unavailable.  At the hearing, the State shall bear the burden of proving by clear and convincing evidence that the defendant engaged in the conduct set forth in subsection a. of this section.

 

     2.    This act shall take effect immediately and shall be applicable to offenses committed on or after the effective date.

 

 

STATEMENT

 

     Pursuant to section 37 of P.L.1960, c.52 (C.2A:84A-37), any evidence rule or rules proposed or adopted by the New Jersey Supreme Court shall be subject to change or cancellation at any time by statute.  This bill would create a new evidence rule by statute.

     Under the “hearsay rule,” statements made by witnesses who are not in court to testify are not admissible as evidence except under certain limited circumstances.  These circumstances are known as exceptions to the hearsay rule.

     The current exceptions to the hearsay rule include: 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.

     On September 15, 2010, the New Jersey Supreme Court approved amendments to the Rules of Evidence to be effective July 1, 2011 concerning the hearsay rule, consistent with its decision in State v. Byrd, 198 N.J. 319 (2009).  In Byrd the court took judicial notice of the persistent problem of witness intimidation in New Jersey, and concluded that the State should adopt a forfeiture by wrongdoing exception to the hearsay rule.

     However, it is the view of the sponsor that the rule proposed by the court is overly broad.  Because of its potential infringement on the defendant’s right to a fair trial, the sponsor believes that the rule should only be applied in limited circumstances involving crimes and the witness’s out-of-court statement should be admitted only under a “clear and convincing” evidence standard.

     Under the bill, in a criminal proceeding involving a crime, 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 would not be excluded by the hearsay rule.

     Under the bill, notwithstanding any provisions of the Rules of Evidence or the Rules of Court to the contrary, the trial court must conduct a hearing outside the presence of the jury to determine whether the witness’s out-of-court statement shall be admitted into evidence because the defendant engaged in wrongful conduct, making the witness unavailable.  At the hearing, the State would bear the burden of proving by clear and convincing evidence that the defendant engaged in the wrongful conduct.