The New Jersey Supreme Court has adopted an evidence-rule revision that restricts the admissibility of a criminal defendant's prior convictions for purposes of impeaching credibility.
The changes to N.J. Rule of Evidence 609 were announced in a notice to the bar published today and are effective July 1, 2014.
They remove a presumption of admissibility when the defendant is the testifying witness and the prior conviction is similar to the charged offense or the court finds undue prejudice.
Prosecutors will be limited to introducing the date of the conviction, the degree of the crime and the sentence imposed, unless there's a waiver by the defendant.
The amendment also adopt a new paragraph regarding use of evidence of prior convictions 10 or more years old. Evidence of such convictions will be presumed inadmissible, unless the judge finds that its probative value outweighs it prejudicial effect — shifting the burden to prosecutors.
In making that determination, the judge may consider whether there are intervening convictions; their number, nature and seriousness; whether they involved fraud or deception; how long ago they occurred; and their seriousness.
The time period will be measured from the start date of the trial to the conviction or release from incarceration, whichever is later.
The revised amendment incorporates the presumptions contained in Federal Rule of Evidence 609, though there are some differences.
The federal provision utilizes a higher standard for evidence of convictions older than 10 years: it allows admissibility only if the probative value "substantially" outweighs the prejudicial effect. It presumes admissibility of remote convictions if the witness is not a defendant, while the New Jersey stricture applies to both witnesses and testifying defendants. Also, the federal rule absolutely requires courts to admit evidence of crimes involving dishonesty, while the New Jersey rule relies on judicial discretion.
There are 25 states that mirror the federal rule's burden-shifting 10-year demarcation, while nine others exclude such evidence completely, with time limits ranging from five to 15 years. N.J.R.E. 609, in its current form, is one of the few that doesn't distinguish between recent and past convictions.
The genesis of the rule changes is State v. Harris, 209 N.J. 431 (2012), in which a sharply divided state Supreme Court ruled that a trial judge did not abuse his discretion by admitting evidence of 13-year-old drug convictions that prosecutors sought to use to impeach the credibility of the defendant, who ultimately decided not to testify and was convicted of robbery and burglary.
The majority found Derrick Harris' numerous disorderly persons convictions during that 13-year window served to "bridge the gap," while the dissenters warned about the potentially chilling effect on defendants who wish to testify.
The court demanded examination of the rule. A subcommittee was formed, consisting of prosecutors and defense attorneys, and recommended the revisions, which the court's Committee on Rules of Evidence approved in March.
Defense lawyers are in favor of the changes. "Generally, I think that jurors have a natural human tendency to misuse this type of evidence" to find guilt, says Darren Gelber, president of the Association of Criminal Defense Lawyers of New Jersey.
Prosecutors, on the other hand, took issue with some aspects.
At a Sept. 3 public hearing, Atlantic County Prosecutor James McClain, testifying on behalf of the New Jersey Prosecutor's Association, called the automatic burden shift "an unnecessary change in the law that would work only to deprive juries of evidence relevant to the issue of the credibility of witnesses."
McClain said existing case law furnishes sufficient protections, specifically State v. Brunson, 132 N.J. 377 (1993), which provided that courts must "sanitize" evidence of prior convictions by barring information beyond the conviction's date, degree and resulting sentence.
The state Public Defender's Office, the State Bar Association's Criminal Law Section and the Middlesex County Bar Association all testified in support of the rule changes.
Joseph Benedict, testifying in favor of the amendment on behalf of the Middlesex Bar, said the current rule "simply doesn't work.
"It just receives disparate treatment from county to county and from judge to judge," said Benedict, of Benedict and Altman in New Brunswick, in response to McClain's remarks.
Benedict pointed to one case where, he said, a judge nearly admitted evidence of a 22-year-old conviction before the prosecutor withdrew the application.
The amendment "doesn't precisely give us a bright line" but "certainly gives the trial judges a whole lot more guidance" and is "a huge step in the right direction," he added.
The subcommittee had concerns about the trial court's use of disorderly persons convictions to "bridge the gap" in Harris but stopped short of prohibiting the practice, finding the proposed burden shift likely would be sufficient.
As for declining to require a heightened showing that the evidence's probative value "substantially" outweigh the prejudicial effect, the subcommittee found that judges' informal practice already had been to impose a higher burden during a remoteness analysis. •