State v. Byrd; State v. Dean, Jr., 198 N.J. 219

Summary

The Supreme Court of New Jersey held that New Jersey should adopt a forfeiture-by-wrongdoing exception to the hearsay rule, but concluded that the exception was not codified in the applicable evidence rules at the time of trial. The court also held that the trial court's ex parte, unsworn examination of the allegedly intimidated witness deprived the defendants of a meaningful opportunity to challenge the evidence. The defendants' convictions were reversed and the matter was remanded for a new trial.

Holdings

1. At the time of defendants' trial, no New Jersey evidence rule or precedent authorized admission of an unavailable witness's inculpatory out-of-court statement under forfeiture by wrongdoing.
2. New Jersey should adopt a forfeiture-by-wrongdoing exception permitting admission of a statement offered against a party who directly or indirectly engaged in wrongdoing intended to, and that did, procure the declarant's unavailability, but the proposed rule must proceed through the Evidence Act's legislative and executive approval process.
3. The trial court violated defendants' due process and confrontation rights by determining Bush's unavailability and credibility through an unsworn, unchallenged ex parte hearing that excluded defendants and defense counsel and denied the defense an opportunity to present rebuttal evidence.
4. Before admitting a witness's statement under the proposed forfeiture-by-wrongdoing exception, the State must give reasonable notice, identify the witness and statement, and establish at an N.J.R.E. 104(a) hearing, ordinarily in the presence of the defendant and counsel, by a preponderance of the evidence that the defendant directly or indirectly engaged in wrongdoing intended to and actually causing the witness's unavailability.

Questions Presented

1. Whether New Jersey courts could admit an unavailable witness's hearsay statement under a forfeiture-by-wrongdoing doctrine when the New Jersey Rules of Evidence did not contain such an exception.
2. Whether the Supreme Court could adopt a fundamental new hearsay exception by judicial decision rather than through the procedures prescribed by the Evidence Act.
3. Whether the trial court's ex parte, in camera hearing, conducted without an oath, defendants, or defense counsel, satisfied due process and confrontation requirements.
4. Whether the admission of Bush's statement was harmless error.

Disposition

affirmed