withdrawn guilty plea was held to be within the scope of
the rule. Id.
An uncounselled statement made as part of
negotiations with a prosecutor relating to the proper
sentence upon disposition of the criminal charges should
not be admitted against the defendant if the case is not
disposed of by plea. State v. Watford, 261 N.J. Super. 151,
159 (App. Div. 1992). However, it would be a
“reasonable exercise of discretion” under N.J.R.E.
101(a)(2)(c) to relax N.J.R.E. 410 to allow the use of a
statement made during plea negotiations to rebut a
factual contention expressly or inferentially raised during
a Graves Act sentencing proceeding with respect to
whether a gun was real. State v. Hawkins, 316 N.J. Super.
74, 82 (App. Div. 1998), certif. denied, 162 N.J. 489
(1999).
It is not permissible for the prosecution to show, even
by innuendo, that a defendant’s alleged accomplice has
been indicted or convicted of the same offense charged
against the defendant. State v. Felton, 131 N.J. Super.
344, 353-54 (App. Div. 1974), certif. denied, 68 N.J.
140 (1975). Furthermore, the guilty plea of a
codefendant is inadmissible in the separate trial of
another defendant as substantive evidence of his guilt.
State v. Stefanelli, 78 N.J. 418 (1979).
The exception in N.J.R.E. 410(2) for use of guilty
plea statements in prosecutions for perjury or false
swearing does not impermissibly chill a defendant’s
constitutional right to testify. State v. Rodriguez, 280 N.J.
Super. 590 (App. Div. 1995).
A plea of guilty, but before sentence, is sufficient to
constitute a conviction of a crime for purposes of
impeaching the credibility of a witness. State v. Baker,
133 N.J. Super. 398, 401-02 (App. Div. 1975). In Baker
the guilty plea was previously entered by a prosecution
witness who was testifying against the defendant. The
Baker court held that the plea constituted a conviction
and that the witness might have been attempting to curry
favor with the prosecution through his testimony.
Hence, evidence of the guilty plea would have
demonstrated the witness’s bias.
XX. POLYGRAPHS (See also, POLYGRAPHS,
this Digest)
The only way to admit as evidence the results of a
polygraph examination is for the State and the defendant
to enter into a clear, unequivocal, and complete
stipulation. State v. Carter, 91 N.J. 86, 116 (1982); State
v. McDavitt, 62 N.J. 36, 46 (1972); State v. Reyes, 237
N.J. Super. 250, 263 (App. Div. 1989); State v.
Hollander, 201 N.J. Super. 453, 477 (App. Div.), certif.
denied, 101 N.J. 335 (1985). A pretrial hearing on the
reliability of a stipulated polygraph is unwarranted since
the requirement of the stipulation for admissibility
presumes the unreliability of the test. State v. McMahon,
217 N.J. Super. 182, 186 (Law Div. 1986).An “uncounseled” defendant will be bound by a
polygraph stipulation which provisions bar the
admissibility of any subsequent, independent test
conducted on that defendant. State v. Capone, 215 N.J.
Super. 497 (App. Div. 1987). The court expressly
disapproved of State v. Finn, 175 N.J. Super. 13 (Law Div.
1980), which held that a defendant could not alone waive
his right to have his own polygraph exam admitted, or to
call an expert witness to refute the results of the State’s
test. It should be noted that the defendant in Capone did
consult with an attorney, apparently by telephone, the
day before entering into the stipulation. The court
further implied that, while the State did not raise the
issue on appeal, the defendant should also not be
permitted to call his own expert at trial to challenge the
results of the stipulated polygraph.In State v. Jones, 224 N.J. Super. 527 (App. Div.
1988), the defense to a robbery charge was based
primarily on the results of a polygraph test taken by a
State investigator wherein the investigator testified that
defendant was being truthful when he stated during the
test that he was not involved in the robbery. The
Appellate Division held that the trial court’s instruction
that “the opinion [of the polygraph expert] is not by itself
sufficient evidence to support a finding of guilt or
innocence” was erroneous because it implied that the
defendant had a burden to present evidence of his
innocence and that this burden could not be satisfied by
the polygrapher’s opinion alone but had to be supported
by other evidence.XXI. PRIOR CONVICTIONS
Pursuant to N.J.R.E. 609, the credibility of any
witness may be affected through the production of
evidence of the witness’s prior conviction of crime.
N.J.S.A. 2A:81-12, which was the sole provision
addressing this area prior to the revision of the Evidence
Rules in 1993, was repealed effective January 6, 2000.
For purposes of such impeachment, only convictions for
indictable offenses may be used to affect a witness’s
credibility. State v. Rowe, 57 N.J. 293, 302 (1970); State