Senator DIANE B. ALLEN
District 7 (Burlington and Camden)
Senator LINDA R. GREENSTEIN
District 14 (Mercer and Middlesex)
Provides for a forfeiture by wrongdoing exception to the hearsay rule by amending the Rules of Evidence.
CURRENT VERSION OF TEXT
A Joint Resolution pursuant to P.L.1960, c.52 proposing an amendment to the Rules of Evidence.
Whereas, Successful prosecution of crime, particularly gang-related crimes, often depends on the willingness of citizens to come forward and provide information to law enforcement and to testify at trial if needed; and
Whereas, Those who commit unlawful acts often try to hinder investigations and thwart prosecution by intimidating witnesses or other informants, through force or the threat of force or other means, to keep them from cooperating with police and prosecutors; and
Whereas, The State must take decisive actions to protect witnesses and provide strong disincentives to witness intimidation, to ensure that members of the public can perform their civic duties without fear of reprisal against them or their families; and
Whereas, The adoption of a provision, modeled after the federal rule of evidence, known as a “forfeiture by wrongdoing” exception to the hearsay rule, that allows a witness’s hearsay testimony against a party when the party engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the witness, will enable the court to consider the evidence that the witness would have presented if available; and
Whereas, The allowance of hearsay under such circumstances will serve to counter the primary purpose a defendant would have for taking steps to procure the unavailability of a witness through intimidation or other illicit means; and
Whereas, The Supreme Court of New Jersey took judicial notice, in the case of State v. Byrd (docket number A-105-07), of the persistent problem of witness intimidation in New Jersey, and concluded that the State should adopt a proposed forfeiture by wrongdoing exception to the hearsay rule; and
Whereas, In anticipation of the adoption of a new forfeiture by wrongdoing exception to the hearsay rule, the Supreme Court of New Jersey has set forth procedures that must be followed in order to admit evidence under the proposed forfeiture by wrongdoing exception; and
Whereas, Section 38 of P.L.1960, c.52 (C.2A:84A-38) provides a procedure for the adoption of rules of evidence without the necessity for presentation at a Judicial Conference; 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.
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 (docket number A-105-07 decided April 2, 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.