EvidenceProf Blog

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

Saturday, April 4, 2009

Litigating With The Sopranos, Take 3: Supreme Court Of New Jersey Creates Forfeiture By Wrongdoing Exception

I have written two previous posts (here and here) 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, in which the court refused to graft a forfeiture by wrongdoing exception onto the New Jersey Rules of Evidence because "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...." In my post on Byrd back in January, I noted that "[w]e should have the response of the Supreme Court of New Jersey shortly." Well, on Thursday we got it. And the New Jersey Supremes created such an exception, pending a New Jersey Senate and General Assembly joint resolution signed by the Governor.

In State v. Byrd, 2009 WL 856631 (N.J. 2009), the Supreme Court of New Jersey began by noting that in 1997, the Federal Rules of Evidence codified the common law doctrine of forfeiture by wrongdoing with Federal Rule of Evidence 804(b)(6), which provides an exception to the rule against hearsay for 

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. 

The court noted that Rule 804(b)(6) also "extinguishes confrontation claims on essentially equitable grounds." It also noted that several states have adopted state counterparts to Federal Rule of Evidence 804(b)(6) and that "[n]o court that has considered the forfeiture-by-wrongdoing doctrine has rejected it." The New Jersey Supremes found that the forfeiture-by-wrongdoing doctrine is founded on three significant public policy rationales:

The first is to remove any profit that a defendant might receive from his own wrongdoing.

The second rationale is to provide a strong deterrent against intimidation and violence directed at witnesses by defendants attempting to game the judicial system.

Last, the forfeiture-by-wrongdoing doctrine "furthers the truth-seeking function of the adversary process, allowing fact finders access to valuable evidence no longer available through live testimony."  

Then, after acknowledging that "[w]itness intimidation is no stranger to New Jersey," the court decided to enact a forfeiture by wrongdoing exception to the rule against hearsay, but as noted by the lower court, it had to comply with N.J.S.A. 2A:84A-38 and -39.  What that means is, as noted above, the New Jersey Senate and General Assembly need to pass a joint resolution signed by the Governor for the exception created in State v. Byrd to take effect.

So, how will that exception work? Well, you can read the full explanation in the opinion, but here is a condensed version:

When the State intends to introduce a witness's statement through the forfeiture-by-wrongdoing exception to the hearsay rule, it must make known its intention as soon as reasonably practicable. Ordinarily, the State should advise defense counsel and the court as soon as it becomes aware that the defendant's wrongful conduct has made the witness unavailable and that it intends to offer the witness's out-of-court statement into evidence. The State must reveal the identity of the witness and the particulars of the statement that will be offered into evidence.

Next, the trial court must conduct an N.J.R.E. 104(a) hearing, outside the presence of the jury, to determine whether the witness's out-of-court statement should be admitted into evidence because the defendant engaged in wrongful conduct, making the witness unavailable.

The hearing must be conducted in the presence of counsel and defendant, and the defendant can only be excluded from the hearing for extraordinary reasons that must be articulated on the record. 

In those cases in which the witness is available to testify but refuses to do so, due to alleged threats or fear induced by the defendant, the court ordinarily should advise the witness of his obligation to testify and that if he refuses to do so, he will be held in contempt. A witness must know that there will be consequences if a court order is disobeyed. If the witness continues to refuse to testify after the threat of contempt, he will be deemed an unavailable witness. A witness is also unavailable if the witness cannot be located, has been rendered unable to testify because of the infliction of physical or psychological injuries, or has been killed as a result of the wrongful conduct of the defendant. 

At the hearing, the State will bear the burden of proving by a preponderance of the evidence that defendant engaged, directly or indirectly, in wrongdoing that was intended to, and did, procure the witness's unavailability.  In other words, the State must demonstrate that the defendant by his wrongful conduct, directly or indirectly, caused the witness's unavailability-that is, caused the witness's physical absence or the witness's refusal or inability to testify.

Before admitting an out-of-court statement of a witness under the forfeiture-by-wrongdoing rule, the court must determine that the statement bears some indicia of reliability.  



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