EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, September 1, 2008

The Beads Of One Rosary: New Jersey Court Affirms Convictions Despite Witness' Rosary Beads In Labor Day Case

The recent opinion of the Superior Court of New Jersey in State v. Branin, 2008 WL 3876013 (N.J.Super.A.D. 2008), raised by did not resolve an interesting issue:  Can a witness be forced to remove his or her rosary beads during testimony?  In Branin, the alleged victim claimed that while spending the 2005 Labor Day holiday weekend in the Highlands with her boyfriend, Christopher, he and she went to dinner at a local restaurant.  They were seated at a table behind the defendant, Gary S. Branin, Jr., who knew Christopher as both were Highlands volunteer firefighters.  After dinner, Branin invited Christopher and the alleged victim to join his group, whereupon Branin bought alcoholic drinks for everyone at the table.  Branin and the couple then left for another Highlands bar, and the alleged victim claimed that while they were there, Branin sexually assaulted her.  Branin was subsequently convicted of two counts of second degree sexual assault.

On appeal, Branin claimed that he was prejudiced by the alleged victim's possession of rosary beads during her testimony.  While Branin admitted that there was no New Jersey case supporting his claim that a witness' mere possession of rosary beads is prejudicial, he claimed that such possession "falls within N.J.R.E. 610's prohibition on the admission of religious evidence."  New Jersey Rule of Evidence 610 states that "[e]vidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced."

So, Branin's argument was ostensibly that the rosary beads were evidence that the alleged victim was a devout Catholic, which could have enhanced her credibility in the eyes of the judge/jurors.  The fatal problem with this argument, however, is that Branin conceded that while he was aware that she had the beads, "the judge could not observe the beads from the bench, no one informed the judge of this, and the judge was not able to take any action to avert their prejudicial effect.  This was problematic at the legal level because it required Branin to prove "plain error" and problematic at the factual level, because, as noted by the appellate court, "in the absence of objection and a relevant record, we do not know what the jurors observed.  In light of this situation, it is unsurprising that the appellate court found that no error was committed.

For me, though, this ruling left an interesting evidentiary issue on the table:  What should a trial judge do when a party objects to a witness carrying rosary beads, wearing a cross, etc.?  Is such "evidence" inadmissible religious evidence under Federal Rule of Evidence 610 and state counterparts, substantially more prejudicial than probative under Federal Rule of Evidence 403 and state counterparts, or permissible?  It would seem that the objecting party would want to make an argument similar to the argument that "compelling" a defendant to wear prison garb violates his right to due process and the presumption of innocence. See, e.g., Felts v. Estelle, 875 F.2d 785 (9th Cir. 1989).  I think the rosary bead argument would be successful, but it would be interesting to see how a court would treat the issue if it were raised.



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