The state Supreme Court is weighing a proposed evidence rule amendment that would make it harder to reach into a defendant’s criminal past to impeach his credibility.
The revision to N.J.R.E. 609 would end the presumption that a criminal conviction is admissible unless excluded by a judge as remote or for other reasons.
Instead, evidence of convictions more than 10 years old would be barred unless the judge decides their probative value outweighs their prejudicial effect.
The proposed change will be aired at a Sept. 3 public conference at the New Jersey Law Center in New Brunswick. [See notice to the bar on page 2.]
The determination of whether a conviction more than 10 years old is admissible would include a review of whether there are intervening convictions and, if so, their number, nature and severity; whether they involve crimes of dishonesty, lack of veracity or fraud; and how long ago the convictions occurred.
The revised rule also would require that when a defendant’s prior conviction is introduced, the crime’s degree, conviction date and sentence are the only evidence allowed, except where the defendant waives any objection to more detailed evidence.
The proposed change stems from State v. Harris, 209 N.J. 431 (2012), in which the Supreme Court ruled, 4-3, that a trial judge did not abuse his discretion by allowing prosecutors to use 13-year-old drug convictions to impeach the credibility of a defendant.
Derrick Harris had accrued a series of disorderly persons convictions between his 1994 drug convictions and his 2007 robbery and burglary trial that the majority found served to “bridge the gap” of remoteness in time. The dissenters said the ruling would have a chilling effect on defendants testifying. Harris chose not to testify and was convicted.
The court asked its Committee on Rules of Evidence to study whether the state rule should be amended to more closely resemble Federal Rule of Evidence 609. The federal version says 10-year-old convictions are admissible for impeachment purposes only if the proponent of the evidence proves its probative value “substantially” outweighs its prejudicial effect.
The committee assigned a subcommittee, chaired by Andrew Rossner, associate dean for professional education at Rutgers Law School-Newark, to undertake the review.
The subcommittee recommended that N.J.R.E. 609 be amended to adopt the federal rule’s presumption in favor of admitting convictions less than 10 years old and a presumption against admitting convictions more than 10 years old, but with some minor differences.
The federal rule generally requires that evidence of prior convictions less than 10 years old be admitted in the case of nondefendant witnesses.
But the subcommittee saw no reason to depart from the current practice of applying the same rule to witnesses and testifying defendants.
And while the federal rule requires admission of evidence of crimes involving a dishonest act or false statement by the witness, the subcommittee decided not to follow that rule because it was seen as taking away the judge’s responsibility and discretion in assessing the probative effect of such convictions.
Rather than distinguish between crimes of dishonesty and other crimes in the revised rule, the subcommittee recommended retaining the practice of leaving it to the judge to give due weight to the nature of the crime for which a conviction is sought to be admitted.
Darren Gelber, president of the Association of Criminal Defense Lawyers of New Jersey, calls the proposed rule “a positive development” because it brings New Jersey’s rules of evidence closer to the federal rules.
At present, the opponent of using a decade-old conviction as evidence bears the burden of keeping it out, but under the new rule the proponent would bear the burden of getting it admitted, says Gelber, of Wilentz, Goldman & Spitzer in Woodbridge.
He says admitting evidence of a defendant’s past convictions is problematic because, while the trial judge cautions jurors to use such evidence only to evaluate credibility, jurors tend to take past convictions as evidence of guilt in the case at hand.
Burlington County Prosecutor Robert Bernardi sees no need to change the current rule, which he says “sufficiently protects defendants from the prejudicial admission of such evidence” while giving juries the opportunity to consider whether “such evidence is sufficient to raise a good faith question about the credibility” of the defendant’s testimony.
Bernardi points to State v. Brunson, 132 N.J. 377 (1993), where the court said that when a defendant had a prior conviction for an offense similar to the one at hand, the prior offense may not be identified in court to avoid the prejudice that would result. “That kind of logic, together with the argument into whether a conviction is too remote, is an adequate protection, and the rule doesn’t need to be changed,” he adds.
The Sept. 3 conference is open for public comment, though parties wishing to speak must register in advance with the Administrative Office of the Courts.