v Kociolek, 23 N.J. 400, 420 (1957); State v. Jenkins, 299
N.J. Super. 61, 72 (App. Div. 1997).
In State v. Sands, 76 N.J. 127 (1978), the New Jersey
Supreme Court held that the admission in evidence of
prior conviction rests in the sound discretion of the trial
court. Such evidence should be generally admitted, and
the defendant must shoulder the burden of proof to
justify exclusion. Id. at 144. Exclusion is only warranted
upon a strong showing of remoteness. This remoteness
arises from the length of time between the conviction and
the trial as well as from the nature of the offense with
regard to the defendant’s honesty and veracity. These
factors must be balanced against the prejudice to a
defendant. However, since there is a presumption in
favor of the admission of prior conviction evidence, even
a temporally remote offense may be admitted if it is one
of a series of criminal convictions. Id. at 142-47. The
holding in Sands is incorporated into N.J.R.E. 609 by
allowing the judge to exclude evidence of a prior
conviction “as remote or for other causes.”
In State v. Whitehead, 104 N.J. 353 (1986), the New
Jersey Supreme Court reversed the ruling of the Appellate
Division, 203 N.J. Super. 209 (App. Div. 1985), that a
defendant must testify in order to preserve his right to
challenge on appeal the trial court’s discretionary
decision permitting his prior convictions to be
introduced. The Supreme Court, differing with Luce v.
United States, 469 U.S. 38 (1984), upon which the
Appellate Division had relied, concluded that a
defendant need not testify at trial to obtain appellate
review of a trial court’s ruling that the defendant’s
convictions may be used for impeachment purposes.
In State v. Brunson, 132 N.J. 377 (1993), the
Supreme Court, overruling prior precedent, see State v.
Pennington, 119 N.J. 547 (1990), modified the ruling in
Sands and held that because of difficulty a juror would
have in following a limiting instruction in a case in which
the defendant has been convicted previously of a crime
“that is the same or similar to the offense charged,” the
State may only introduce evidence of the prior similar
conviction limited to the degree of the time and the date
of the offense, excluding any evidence of the specific
crime. State v. Brunson, 132 N.J. at 391. The State may
also introduce evidence of the sentence imposed on the
“sanitized” conviction. State v. Hicks, 283 N.J. Super. 301
(App. Div. 1995), certif. denied, 143 N.J. 327 (1996). If
there are multiple convictions, some of which require
sanitization and some of which do not, the State may
introduce sanitized evidence of all of the convictions or
unsanitized evidence of the dissimilar convictions. State
v. Brunson, 132 N.J. at 394; State v. Jenkins, 299 N.J.
Super. at 71. Similarity need not be precise, e.g., in a
robbery prosecution, sanitization of a prior conviction for
receiving stolen property was required. State v. White,
297 N.J. Super. 376, 381-82 (App. Div.), certif. denied,
149 N.J. 407 (1997); see also State v. Singleton, 308 N.J.
Super. 411 (App. Div. 1998).The balancing standard of Sands also applies to non-
defendant witnesses who are subject to impeachment by
prior convictions. State v. Balthrop, 92 N.J. 542, 544-46
(1983); State v. L.J.P., 270 N.J. Super. 429, 433-34
(App. Div. 1994).In State v. Knight, 63 N.J. 187, 194-95 (1973), the
Supreme Court held that correct practice calls for the trial
court to advise the jury that in considering the prior
convictions which have been introduced at trial they may
or may not conclude that the credibility of the witness is
affected thereby and to what extent. See also State v.
Burgos, 262 N.J. Super. 1, 4 (App. Div. 1992).In State v. Michael Wray, 336 N.J. Super. 205 (App.
Div. 2001), held that while the defendant had testified
at trial and was questioned about his prior criminal record
relating to its possible effect on his credibility,
submission of a previously bifurcated charge of possession
of a weapon by a convicted felon to the jury improperly
expanded this evidence’s proper purpose from that of
credibility to consideration as substantive proof of
possession by a convicted felon. This was so even though
the trial court had decided without objection to submit
both charges to the jury and instructed the jury that
defendant’s prior convictions could only be used for
credibility purposes.Generally, a prior conviction cannot be used for
impeachment purposes if then on appeal. State v.
Williams, 299 N.J. Super. 264, 274 (App. Div. 1997);
State v. Blue, 129 N.J. Super. 8, 12 (App. Div.), certif.
denied, 66 N.J. 328 (1974); but see State v. Nelson, 318
N.J. Super. 242, 254-55 (App. Div.), certif. denied, 158
N.J. 687 (1999) (admission of foreign conviction on
appeal at time of trial harmless when conviction affirmed
pending appeal in New Jersey).Juvenile offenses are not crimes, and proof of a
delinquency adjudication, even one attended by legal
representation and which would have constituted an
indictable offense if committed by an adult, is not
admissible for purposes of impeachment of the juvenile
himself. State in Interest of K.P., 167 N.J. Super. 290
(App. Div. 1979), certif. denied, 87 N.J. 394 (1981).