cdTOCtest

Although a juvenile offense may not be utilized to
impeach a defendant’s credibility, he may not
misrepresent his juvenile record. In State v. Buffa, 51 N.J.
Super. 218, 233 (App. Div. 1958), aff’d, 31 N.J. 378
(1960), cert. denied, 364 U.S. 916 (1960), the defendant
on direct examination testified to two prior juvenile
convictions. On cross-examination the prosecutor
sought to examine the defendant as to other juvenile
offenses. The Buffa court stated:

This would amount to a waiver of objection to cross-
examination as to juvenile offenses if designed to show
there was more than one offense or more than two
convictions of crime. Certainly, the State is not
compelled to stand by helpless when a defendant
misrepresents the number or character of prior
convictions.

Although evidence relating to a juvenile adjudication
of guilt is not admissible merely to affect the credibility
of a witness, such evidence is admissible as a matter of
constitutional law to demonstrate the bias or interest of
the witness in testifying against the defendant. Davis v.
Alaska, 415 U.S. 308 (1974).

Conviction of a juvenile at a trial as an adult is
admissible to impeach credibility. See State v. Paige, 256
N.J. Super. 362, 371 (App. Div.), certif. denied, 130 N.J.
17 (1992); State v. Stefanelli, 133 N.J. Super. 512, 514
(App. Div. 1975), certif. denied, 67 N.J. 102 (1975). In
such a case, the trial judge may instruct the jury that, in
determining the weight to accord the conviction, they
may consider the defendant’s status as a juvenile when he
committed the crime. Id. at 514.

For the purpose of attacking the credibility of a
witness, his prior sentencing for crime on a plea of non
vult or nolo contendere should be treated just like a
conviction after a trial or a plea of guilty. State v. Parker,
33 N.J. 79, 94-95 (1960).

An uncounseled guilty plea or conviction may not be
used to affect a defendant’s credibility. Loper v. Beto, 405
U.S. 473, 483-84 (1972). See Burgett v. Texas, 389 U.S.
109 (1967); State v. Koch, 118 N.J. Super. 421 (App. Div.
1972). If the record is silent regarding representation at
the time of the prior conviction, the defendant has the
burden of producing some evidence to substantiate a
claim of no representation. State v. H.G.G., 202 N.J.
Super. 267, 279-80 (App. Div. 1985).

A defendant should ordinarily be barred on post-
conviction review and on appeal from complaining of the

use by the State at trial of prior uncounseled convictions

to affect credibility if he failed to object on that ground

at trial. State v. Miscavage, 62 N.J. 294, 300-03 (1973).

In State v. Lueder, 74 N.J. 62 (1977), a defendant was

impeached by the use of a prior conviction that followed

an uncounseled juvenile waiver proceeding. The waiver

proceeding was prior to the United States Supreme

Court’s decision in Kent v. United States, 383 U.S. 541

(1966), which required counsel at juvenile waiver

proceedings. The New Jersey Supreme Court in Lueder

held that the prior conviction could be used to impeach

the defendant’s credibility, declining to apply Kent

retroactively.

XXII. PRIOR CRIMES -- N.J.R.E. 404(b)

A. Prior Crimes - Generally

The admission of evidence of other crimes, wrongs, or

acts is governed by N.J.R.E. 404(b), formerly Evid. R. 55:

Evidence of other crimes, wrongs, or acts is not admissible

to prove the disposition of a person in order to show that

he acted in conformity therewith. Such evidence may be

admitted for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge,

identity or absence of mistake or accident when such

matters are relevant to a material issue in despite.

The essential policy of N.J.R.E. 404(b) is that

evidence of a defendant’s prior criminal acts cannot be

utilized to demonstrate his propensity to commit crimes,

including the offense for which he is being tried. See State

v. Covell, 157 N.J. 554, 563 (1999); State v. Nance, 148

N.J. 376, 386 (1997); State v. Stevens, 115 N.J. 289, 299

(1989); State v. Kociolek, 23 N.J. 400, 418-20 (1957);

State v. Hackett, 323 N.J. Super. 460, 482 (App. Div.

1999). However, N.J.R.E. 404(b) will permit the

admission of evidence of other crimes to prove a material

element of the offense charged. The explicit terms of

N.J.R.E. 404(b) refer to material issues such as “motive,

opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.” However,

the fact that evidence of prior crimes may have some

bearing on motive, intent, plan, absence of mistake,

knowledge or identity does not automatically warrant its

admission. State v. Atkins, 78 N.J. 454, 462 (1979).

This listing of exceptions is not exclusive, since N.J.R.E.

404(b) evidence may be admitted to prove any material

issue. State v. Hummel, 132 N.J. Super. 412 (App. Div.),

certif. denied, 67 N.J. 102 (1975). For example, prior

crimes evidence may be admissible to demonstrate