Capitol Report: NJSBA signals concerns at Judicial Conference on proposed rule change expanding the scope of cross-examination

By NJSBA Staff posted 09-05-2019 13:26

  

New Jersey State Bar Association (NJSBA) President-elect Kimberly Yonta testified at the Judicial Conference last week on the impact of proposed changes to New Jersey Rules of Evidence 608, which would expand the scope of permissible cross-examination. An initial proposal called for the expansion in both civil and criminal cases, but the proposal considered by the conference was for an expansion in criminal cases only. Yonta joined the County Prosecutors Association of New Jersey and the Trial Attorneys of New Jersey in urging the panel to reject the amendment.

The NJSBA responded to recommendations by the Supreme Court’s Committee on the Rules of Evidence, which “restyled” the rules to provide a clear and precise, easily understood set of rules written in plain language. One of the recommendations included an amendment to Rule 608 emanating from the decision in State v. Scott, 229 N.J. 469 (2017). In Scott, the Supreme Court held that the evidence that, on two prior occasions, the defendant’s mother had lied to police in order to cover for the defendant went beyond the scope of permissible inquiry into the mother’s bias. The Supreme Court ruled the evidence was not a permissible means of proving her character for untruthfulness.

The committee considered Rule 608 in light of the Supreme Court’s decision and proposed an amendment that would bring New Jersey in line with both the federal courts and a majority of other state courts. The amendment would permit specific-act evidence with procedural safeguards, placing the trial court as the gatekeeper to hold a Rule 104 hearing. The hearing would consider balancing the probative value and prejudicial effect of the evidence in order to determine its admissibility. Initially, the recommendation applied to both civil and criminal cases; however, the recommendation has since been narrowed to apply only to criminal cases. The NJSBA maintains its concerns with this recommendation in criminal matters.

“We believe the situation presented in Scott is fact-specific and can be addressed through other, permissible means of questioning, as recognized in the Scott opinion,” said Yonta. “We do not perceive the present allowable scope of cross-examination as so limiting or such an obstacle to the truth so as to warrant the expansion that is proposed.”

The NJSBA shares the concerns raised by Justice Barry Albin in his concurring opinion in Scott, that admission of specific-act evidence would potentially have a chilling effect on the willingness of witnesses to testify and would divert jurors from the central issue in the case. 

“This is not only the case where a witness’s social media sites could come into play, but also an individual’s immigration status or other facets of an individual’s life having nothing to do with the case or testimony at issue, but which could be used to cast doubt on the witness’s testimony,” Yonta said. “Proposed questioning about those issues is likely to lead to disputes over what is permitted and not permitted, resulting in many trials in connection with the cross-examination of each witness, diverting attention from the central questions in the case.”

The association urged the panel to consider Justice Albin’s comments regarding what currently exists in the rules to permit impeachment of a witness’s credibility, which includes opinion and reputation evidence, bias, prior inconsistent statements, false statements made in the matter, and prior false allegations.

The NJSBA also asked for inclusion of a clarifying comment on another Evidence Rules proposal, NJRE 530, which addresses inadvertent disclosure of privileged information in the age of e-discovery. NJSBA Trustee Craig Hubert reported there had been some confusion among NJSBA members about whether intentional partial waivers were still permitted under the rule, and asked the panel to consider a comment to the rule confirming that. 

Pursuant to N.J.S.A. 2A:84A-34, et seq., the proposed rule amendment, if approved by the Supreme Court, will be forwarded to the president of the Senate, the speaker of the General Assembly, and the governor. The rule would take effect on July 1, 2020, but remains subject to cancellation up until then by joint resolution adopted by the Senate and General Assembly and signed by the governor. The NJSBA continues to monitor the issue.

This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.

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