AJR129

A Joint Resolution canceling certain proposed amendments to the Rules of Evidence.

Be It Resolved by the Senate and General Assembly of the State of New Jersey:

Whereas, On September 16, 2019 the Supreme Court ordered certain amendments to the New Jersey Rules of Evidence approved and adopted effective July 1, 2020, subject to section 36 of P.L.1960, c.52 (C.2A:84A-36) which permits cancellation of any such rules by joint resolution; and

Whereas, The amendments, which concern Rule 608 of the New Jersey Rules of Evidence, would expand the scope of permissible cross-examination in criminal trials, permitting inquiry into specific acts of a witness’s conduct when probative of the witness’s character for truthfulness; and

Whereas, Under Rule 608 currently, such specific-act evidence is permitted in only two situations: (1) where the witness was previously convicted of a crime, as set forth in N.J.R.E. 609; or (2) where the witness made a prior false accusation of a crime under certain circumstances; and

Whereas, The Supreme Court’s expansion of Rule 608 was prompted by a concurring opinion in State v. Scott, 229 N.J. 469 (2017), in which the Supreme Court Committee on the Rules of Evidence was called upon to examine whether Rule 608 should be expanded to allow cross-examination into specific instances of conduct that are probative of the witness’s character for truthfulness. The opinion noted that the federal courts and majority of other state courts allow such cross-examination; and

Whereas, The Supreme Court Committee on the Rules of Evidence examined the issue but was unable to reach a consensus. In the Committee’s 2017-2019 Report, issued January 15, 2019, four of the committee’s seven members recommended expanding the rule to allow inquiry on cross-examination, in certain limited circumstances, into a witness’s specific instances of conduct on cross-examination. The remaining three committee members issued a Minority Report recommending no changes to the current Rule 608; and

Whereas, The committee’s Minority Report argued that the proposed amendments to Rule 608 risk causing jury confusion and undue prejudice; will deter witnesses from testifying; and will broadly expand pre-trial discovery without meaningfully advancing the jury’s search for truth; and

Whereas, The proposed amendments to Rule 608 have been opposed on these grounds by the New Jersey State Bar Association, the County Prosecutors Association of New Jersey, and the Trial Attorneys of New Jersey, as well as a growing coalition of legal organizations representing a wide cross-section of the legal community, including both prosecution and defense attorneys; and

Whereas, The Supreme Court has adopted the position of the four-member majority of the Committee on the Rules of Evidence, and ordered that the amendments to Rule 608 be adopted effective July 1, 2020; and

Whereas, The New Jersey Legislature finds that the proposed amendment to Rule 608 would create jury confusion; deter witnesses from coming forward because of the ability to inquire into prior bad acts; create prejudice; and expand litigation over the admissibility of specific evidence of prior bad acts, leading to a “trial within a trial” and causing delay without meaningfully advancing the jury’s search for the truth; now, therefore,

Be It Resolved by the Senate and General Assembly of the State of New Jersey:

1. The proposed amendments to Rule 608 of the New Jersey Rules of Evidence as set forth in the Supreme Court’s order of September 16, 2019 shall be canceled.

2. This joint resolution shall take effect immediately.

STATEMENT

This joint resolution provides that the proposed amendments to Rule 608 of the New Jersey Rules of Evidence as set forth in the Supreme Court’s order of September 16, 2019 shall be canceled.

The proposed amendments, which were ordered by the Supreme Court on September 16, 2019, and approved and adopted effective July 1, 2020, would expand the scope of permissible cross-examination in criminal trials, permitting inquiry into specific acts of a witness’s conduct when probative of the witness’s character for truthfulness.

Pursuant to section 36 of P.L.1960, c.52 (C.2A:84A-36), an evidence rule may be canceled at any time up to the effective date by joint resolution to that effect adopted by the Senate and General Assembly and signed by the Governor.

Under Rule 608 currently, specific-act evidence is permitted in only two situations: (1) where the witness was previously convicted of a crime, as set forth in N.J.R.E. 609; or (2) where the witness made a prior false accusation of a crime under certain circumstances.

The Supreme Court’s expansion of Rule 608 was prompted by a concurring opinion in State v. Scott, 229 N.J. 469 (2017), in which the Supreme Court Committee on the Rules of Evidence was called upon to examine whether Rule 608 should be expanded to allow cross-examination into specific instances of conduct that are probative of the witness’s character for truthfulness. The opinion noted that the federal courts and majority of other state courts allow such cross-examination.

The Committee on the Rules of Evidence examined the issue but was unable to reach a consensus. In the Committee’s 2017-2019 Report, issued January 15, 2019, four of the committee’s seven members recommended expanding the rule to allow inquiry on cross-examination, in certain limited circumstances, into a witness’s specific instances of conduct on cross-examination. The remaining three committee members issued a Minority Report recommending no changes to the current Rule 608.

The committee’s Minority Report argued that the proposed amendments to Rule 608 risk jury confusion and undue prejudice; will deter witnesses from testifying; and will broadly expand pre-trial discovery without meaningfully advancing the jury’s search for truth.

The proposed amendments to Rule 608 have been opposed by the New Jersey State Bar Association, the County Prosecutors Association of New Jersey, and the Trial Attorneys of New Jersey, on these grounds. A growing coalition of legal organizations continues to oppose the proposed amendments to Rule 608.

The Supreme Court has adopted the position of the four-member majority of the Committee on the Rules of Evidence, and ordered that the amendments to Rule 608 be adopted effective July 1, 2020.

The New Jersey Legislature finds that the proposed amendments to Rule 608 would create jury confusion; deter witnesses from coming forward because of the ability to inquire into prior bad acts; create prejudice; and expand litigation over the admissibility of specific evidence of prior bad acts, leading to a “trial within a trial” and causing delay without meaningfully advancing the jury’s search for the truth.