character evidence may create a reasonable doubt as to the
defendant’s guilt and that such alleged failure
constituted plain error, since there had been no objection
to the charge the court did give. Viewing the charge given
on character evidence in conjunction with its reasonable
doubt charge, the jury was instructed to consider all of
the testimony, which would include that of the character
witness, and to acquit the defendant if any of the evidence
created in their minds a reasonable doubt as to the
defendant’s guilt.
In the context of a prosecution for racially-motivated
crimes, it was proper for the trial court to permit the
prosecutor to cross-examine the defendant and another
defense witness about racially derogatory statements
previously uttered by the defendant. State v. Davidson,
225 N.J. Super. 1 (App. Div.), certif. denied, 111 N.J. 594
(1988). The appellate court held that this did not
constitute inadmissible bad character evidence, but
instead the trial court properly exercised its discretion in
finding the evidence relevant to the defendant’s mental
state, an element of the crime which the State had to
prove.
An accused can present evidence of a character trait of
a victim but the State can offer such evidence only in
rebuttal. N.J.R.E. 404(a)(2). Self-defense claims
generally permit admission of a victim’s aggressive
reputation if relevant, and N.J.R.E. 404(a)(2) permits
the use of such character evidence even if the defendant
is unaware of it, to prove that the victim acted violently
in conformity with the aggressive character trait. State v.
Aguiar, 322 N.J. Super. 175 (App. Div. 1999); see also
State v. Gartland, 149 N.J. 456, 473 (1997); State v.
Carter, 278 N.J. Super. 629, 632 (Law Div. 1994)
(knowledge of defendant of reputation of victim
necessary if evidence is used to support claim of self-
defense, since defendant must honestly and reasonably
believe use of force is justified).
A third exception is that the character of a witness can
be attacked or supported by opinion or reputation
evidence relating to the witness’ truthfulness or
untruthfulness. N.J.R.E. 404(a)(3); N.J.R.E. 608.
Except for a criminal conviction, see also N.J.R.E. 609,
specific instances of conduct may not be used to affect the
credibility of a witness. State v. Dreher, 302 N.J. Super.
408, 455-56 (App. Div.), certif. denied, 152 N.J. 10
(1997); State v. Hutchins, 241 N.J. Super. 353, 361 (App.
Div. 1990); State v. Mondrosch, 108 N.J. Super. 1 (App.
Div. 1969), certif. denied, 55 N.J. 600 (1970).
V. CONFRONTATION (See also, SIXTH
AMENDMENT, this Digest)
A defendant in a criminal trial is entitled under the
Confrontation Clause of the Sixth Amendment, to access
to juvenile court transcripts which may discredit the
testimony of a crucial prosecution witness. The
defendant in Davis v. Alaska, 415 U.S. 308 (1974),
charged with grand larceny and burglary, was precluded
by a protective order, granted in accordance with Alaska’s
statutory policy of protecting the anonymity of juvenile
offenders, from cross-examining a key prosecution
witness about his probationary status and testimony
connected to a prior adjudication of juvenile
delinquency. The Supreme Court of the United States
held that the crucial juvenile prosecution witness’
probationary status and prior testimony in, and
disposition of, a juvenile proceeding against him would
have been relevant to the jury’s evaluation of the
juvenile’s bias, prejudice and credibility.The New Jersey Supreme Court has also held that the
confidentiality accorded a juvenile’s record may be
breached to the extent necessary to insure the right of
cross-examination. State v. Allen, 70 N.J. 474, 484-85
(1976). See also, State in the Interest of D.H., 139 N.J.
Super. 330 (J. & D. R. Ct. 1976); State v. Parnes, 134 N.J.
Super. 61 (App. Div. 1975); State v. Brown, 132 N.J.
Super. 584 (Law Div. 1975); State in the Interest of A.S.,
130 N.J. Super. 388 (J. & D. R. Ct. 1974). But see, State
in the Interest of S.F., 139 N.J. Super. 337 (J. & D. R. Ct.
1976) (record of juvenile delinquency proceeding arising
out of automobile accident which resulted in one
motorist’s death could not be disclosed to plaintiff in
wrongful death action where juvenile defendant was
available as a witness and no reason existed for bias or
motive for inconsistent testimony) and State v. Burgos,
200 N.J. Super. 6, 12 (App. Div. 1985) (defendant is not
denied right to confrontation by admission of prior
inconsistent statement made by witness who testifies at
trial that he can not remember statements he made to the
police, when both witness and person who recorded the
statement are available for cross-examination).The Allen court extended this rationale to encompass
the State’s motion to review a juvenile defense witness’
prior medical and psychiatric juvenile records. The
defendant, charged with murder, proffered alibi
testimony by a juvenile witness who was on parole. The
State, after learning from confidential sources that the
witness suffered from psychological delusions, attempted
to resolve the issue of the juvenile’s medical and
psychiatric records and require the witness to submit to