Witness Intimidation May Lead to Permitting Inadmissible Evidence At Trial
In a case (State v. Byrd) decided by the New Jersey Supreme Court earlier this month, the Supreme Court proposed a new change to the New Jersey Evidence Rules which would provide a new hearsay exception; commonly referred to as “forfeiture-by-wrongdoing.” Under the exception, an out-of-court statement made by a witness who fails to testify at trial will result in the statements being admitted at trial; if the witness’ failure to appear was due to the influence of the defendant. In proposing this change, the Court noted the problem of witness intimidation in cases involving the prosecution of gang members, etc.
The reason for the rule is to punish defendants who seek to gain an unjust advantage at trial by eliminating state's witnesses who could be damaging to the defense case. It is also put in place to deter defendants from harming victims and witnesses. The direct damage to defendants results when the Court permits the out-of-court statements of a witness/victim to be admitted at trial. Since a defense attorney cannot cross-examine a written or video statement (for obvious reasons), the defense loses the opportunity to cross-examine the statement maker as to their motives for making the statement, their ability to identify or hear the defendant at the time of the event, the lighting conditions, etc ,as to what they perceived or did not perceive. It will be interesting to see if and when this proposal is adopted and the hearings as well as the standard of proof needed to be overcome by the Prosecutor to establish wrongdoing by a defendant and the admissibility of evidence that otherwise would not have been permitted at trial.
