Bill Text: NJ SJR16 | 2012-2013 | Regular Session | Introduced
Bill Title: Amends Rules of Evidence to provide for a forfeiture by wrongdoing exception to the hearsay rule.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2012-01-10 - Introduced in the Senate, Referred to Senate Judiciary Committee [SJR16 Detail]
Download: New_Jersey-2012-SJR16-Introduced.html
No. 16
STATE OF NEW JERSEY
215th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2012 SESSION
Sponsored by:
Senator SAMUEL D. THOMPSON
District 12 (Burlington, Middlesex, Monmouth and Ocean)
SYNOPSIS
Amends Rules of Evidence to provide for a forfeiture by wrongdoing exception to the hearsay rule.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel
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 or acquiesced in 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 by a witness who refuses to testify because of alleged threats, coercions and intimidation by a defendant, as was noted by the State when it recently urged the court to adopt a forfeiture by wrongdoing exception to the hearsay rule in the case of State v. Byrd, 393 N.J. Super. 218 (App. Div. 2007) cert. granted 194 N.J. 445 (2008); and
Whereas, The Appellate Division in the State v. Byrd case declined to adopt by judicial decision a forfeiture by wrongdoing exception to the hearsay rule, citing the explicit statutory procedures which are in place for adoption of rules of evidence as set forth in the Evidence Act of 1960, P.L.1960, c. 52 (C.2A:84A-38 et seq.); and
Whereas, Section 38 of P.L.1960, c.52 (C.2A:84A-38) provides for procedures 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 Exceptions: 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)] (8), 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 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 that has engaged or acquiesced 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
Under the New Jersey Rules of Evidence, hearsay is not admissible in court except as provided by particular court rules or other law. The Rules of Evidence set out several exceptions to the hearsay rule. This joint resolution would amend the New Jersey Rules of Evidence to provide for a forfeiture by wrongdoing exception to the hearsay rule, similar to the federal rules of evidence.
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 his 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 statement 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 or acquiesced 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, coercions and intimidation by a defendant, as noted in the recent case of State v. Byrd, 393 N.J. Super. 218 (App. Div. 2007) cert. granted 194 N.J. 445 (2008). In that case, the Appellate Division declined to adopt by judicial decision a forfeiture by wrongdoing exception to the hearsay rule citing as the reason for the decision the explicit statutory procedures which are in place for adoption of rules of evidence set forth in the Evidence Act of 1960, P.L.1960, c. 52 (C.2A:84A-38 et seq.).
It is the sponsor's intent to heed the Appellate Division's suggestion and introduce this joint resolution to provide for the accelerated adoption of a forfeiture by wrongdoing exception to the hearsay evidence rule.
