psychiatric examination. After examining the records in
camera, the trial court granted the State’s motion to
review the record, noting that the State’s review was for
the sole purpose of determining whether it wanted to
move for a psychiatric examination. The Supreme Court
affirmed this decision.
While the constitutional right to confrontation is
firmly entrenched in American jurisprudence, it is not
absolute, and is subject to certain exceptions. Craig v.
Maryland, 497 U.S. 836 (1990); State v. Smith, 158 N.J.
376 (1999). The basic elements of cross-examination are
physical presence, oath, cross-examination, and
observation of demeanor by the trier of fact. The central
concern of the confrontation clause, however, “is to
ensure the reliability of the evidence against a criminal
defendant by subjecting it to rigorous testing in the
context of an adversary proceeding before the trier of
fact.” Craig, 497 U.S. at 845-46. Hence, the protection
of children warrants closed-circuit testimony pursuant to
N.J.S.A. 2A:84A-32.4 in cases where the child is fearful
of the defendant, State v. Crandall, 120 N.J. 649 (1990),
or defendant and the jury, State v. Smith, supra; see also
State v. Delgado, 327 N.J. Super. 137 (App. Div. 2000).
The videotaping of a victim’s cross-examination,
after he suffered a heart attack after his direct testimony,
did not violate the defendant’s right to confrontation in
State v. Rodriguez, 264 N.J. Super. 261 (App. Div. 1993),
aff’d, 135 N.J. 3 (1994).
A videotape deposition of an ill, elderly victim may be
used at trial even where the defendant has waived his
opportunity to appear at the deposition. State v. Driker,
214 N.J. Super. 467 (App. Div. 1987). The defendant’s
Sixth Amendment/confrontation rights were protected
by the opportunity for cross-examination of the victim.
The court applied the rules regarding videotape
depositions in civil cases, R. 4:14-9, to R. 3:13-2, which
addresses the general admissibility of depositions in
criminal cases. The criminal rules now specifically
provide for the use of videotape depositions. See also R.
3:13-2. In Driker, the defendant was afforded the
opportunity to be present at the deposition, to confront
the witness face to face, but the defendant waived that
right.
The admission of a laboratory certificate under
N.J.S.A. 2C:35-19 over a defendant’s objection without
a hearing on reliability violates the confrontation clause.
State v. Kittrell, 279 N.J. Super. 255 (App. Div. 1995); See
also State in Interest of J.H., 244 N.J. Super. 207 (App.
Div. 1990).With respect to evidence excluded by N.J.S.A.
2C:14-7, the Rape Shield Law, only where the relevance
and probative worth of evidence of a victim’s prior sexual
conduct are “clear and substantial” should that law “bend
to the confrontation rights of the defendant.” State v.
Cuni, 159 N.J. 608 (1999). One such situation was
presented in State v. Budis, 125 N.J. 519 (1991), where
evidence of a nine-year-old’s prior abuse by her stepfather
was relevant and admissible to show an alternative source
for the child’s sexual knowledge.VI. CREDIBILITY and BIAS (See also PRIOR
INCONSISTENT STATEMENTS, infra)
N.J.R.E. 607, the former Evid. R. 20, provides that
except as otherwise provided by N.J.R.E. 405 and
N.J.R.E. 608, both pertaining to character evidence, for
the purpose of impairing or supporting the credibility of
a witness, any party including the party calling the
witness may examine the witness and introduce extrinsic
evidence relevant to the issue of credibility, except that
the party calling a witness may not neutralize the witness’
testimony by a prior contradictory statement unless the
statement is in a form admissible under R. 803(a)(1) or
the judge finds that the party calling the witness was
surprised.A party may affect credibility not only through direct
and cross-examination upon matters in the case, but also
through extrinsic evidence relevant to credibility,
whether or not such evidence bears upon the subject
matter. State v. Martini, 131 N.J. 176, 255 (1993).
Hence, in State v. Gorrell, 297 N.J. Super. 142 (App. Div.
1996), the Appellate Division ruled that bias against the
defendant by a witness could be shown by extrinsic
evidence, including other witnesses to threats uttered by
the witness in question.Courts retain, however, the discretion to exclude or
limit extrinsic evidence under N.J.R.E. 403. See also State
v. Mance, 300 N.J. Super. 37, 60 (App. Div. 1997); State
v. Saez, 268 N.J. Super. 250, 266-67 (App. Div. 1993),
rev’d o.g., 139 N.J. 279 (1995). In State v. Tirone, 64 N.J.
222, 228-29 (1974), the Supreme Court held that the
trial judge did not err in refusing to permit defense
counsel to cross-examine a police officer as to the contents
of the criminal complaint which was filed in the
municipal court, and which charged the defendant with
assault with intent to rape. The trial court properly
sustained an objection on the ground that the complaint