EvidenceProf Blog

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

Sunday, January 4, 2009

Litigating With The Sopranos: Supreme Court Of New Jersey To Decide Whether To Adopt The Forfeiture By Wrongdoing Exception In Felony Murder Appeal

Tomorrow, the Supreme Court of New Jersey will hear oral arguments and ultimately decide whether to judicially adopt the forfeiture by wrongdoing exception or decide that the felony murder convictions of two men were improperly obtained.

In State v. Byrd, 923 A.2d 242 (N.J.Super.A.D. 2007), Dionte Byrd and Freddie Dean, Jr. appealed their convictions for felony murder and related charges in connection with the killing of Charles "Minnesota Fats" Simmons in Simmons' apartment in Trenton in 2001.  Both Byrd and Dean were convicted in large part based upon the statements of Kenneth Bush, who indicated, inter alia, that he rode in a van to Simmons' apartment with Byrd and Dean, both of whom were armed, remained in the van while they entered the apartment, saw them return, with Byrd having suffered a gunshot wound to the leg, and heard both men discuss the shooting.

Bush, however, did not testify to these facts at trial.  Instead, he refused to testify, claiming that both defendants threatened him with bodily harm if he testified against them.  The above facts were merely what Bush told Trenton Police Detective Anthony Manzo in a transcribed, written statement.  And, at the trial court level, after a lot of legal wrangling, 

     "[t]he judge stated that he was clearly convinced of the legitimacy of Bush's expressed concerns about testifying. He confirmed his ruling the next day and announced that he intended to admit Bush's statement following a reliability hearing. Thereafter, at the conclusion of the hearing,...the judge permitted Detective Manzo to read Bush's statement to the jury."

Although the judge agreed that the procedure was novel, with little case law to provide support, he was of the opinion that "no examination or cross-examination was possible given the attitude of the witness."

The defendants thus appealed, claiming that New Jersey has no counterpart to Federal Rule of Evidence 804(b)(6), the forfeiture by wrongdoing exception to the rule against hearsay, which allows for the admission of

     "[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."

In addressing this issue, the Appellate Division noted that since the adoption of Federal Rule of Evidence 804(b)(6), several state supreme and intermediate appellate courts have adopted the forfeiture by wrongdoing exception "through judicial decision."  But the court reversed, finding that in New Jersey,

     "such a change in the Rules of Evidence should be accomplished by our Supreme Court in accordance with the procedure prescribed in N.J.S.A. 2A:84A-38 and -39, rather than by judicial opinion.... Accordingly,...the trial court should not have permitted Detective Manzo to testify as to Bush's out-of-court statement."

Well, now the Supreme Court of New Jersey has that opportunity.  According to the state's brief, "at least 31 states and the District of Columbia have adopted the forfeiture rule."  Moreover, in the state of Tony Soprano, the state Attorney General's Office has claimed that:

     "Witness intimidation is, without exaggeration, the greatest threat we now face to effective prosecution of gang-related violence, organized-crime violence, and domestic violence....The time has come for this court to respond to the continuing spread of witness intimidation and prevent the systemic silencing of witnesses from continuing to make a mockery of our system of justice."

We should have the response of the Supreme Court of New Jersey shortly.



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