EvidenceProf Blog

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

Friday, February 13, 2009

Litigating With The Sopranos, Take 2: New Jersey Legislature Might Approve Forfeiture By Wrongdoing Exception

In January, I wrote a post about State v. Byrd, 923 A.2d 242 (N.J.Super.A.D. 2007), an opinion by the Superior Court of New Jersey, Appellate Division, which was based upon the following facts:

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 nonetheless reversed, concluding that

"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."

As I noted, the state subsequently appealed, and I indicated that "[w]e should have the response of the Supreme Court of New Jersey shortly."  Well, now the state's legislature might grease the wheels.  Assemblyman Sam Thompson recently introduced a joint legislative resolution that will permit New Jersey’s courts to amend its Rules of Evidence guideline to permit a "forfeiture by wrongdoing" exception to the hearsay rule, which would be patterned after the federal courts’ rules of evidence.  According to Thompson,

"This resolution will give our courts the authority to allow into evidence the statements of individuals whose well-being is threatened by the defendant or someone affiliated with the accused....Federal law permits the 'forfeiture by wrongdoing' exception to account for such occurrences.  This exception will ensure that intimidation of witnesses is not a viable defense weapon for the accused....Adding this component to the permitted hearsay rule will assist prosecutors in their efforts to overcome attempts to coerce a witness against testifying....Threatening a witness should not be an option for a defendant in either a federal or state court."

As I noted in my prior post, "at least 31 states and the District of Columbia have adopted the forfeiture rule."  Will New Jersey be next?



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