the court held that evidence relating their drug activities
during the prior two months was not admissible.
Sidestepping the question of whether evidence of the
older crimes was probative of a material fact in issue under
Cofield, the Appellate Division concluded that no clear
and convincing proof of them existed. Although
conceding that direct testimony of other-crimes evidence
proffered by “credible” witnesses -- the police, victims
and their families, and disinterested witnesses -- may
qualify as clear and convincing, that offered by a
codefendant with a favorable plea bargain, “and
particularly the testimony of this codefendant,” cannot.
The court felt that this is so despite the admissibility of
a codefendant’s similar statements that could qualify as
prior consistent statements, since “reliability in that
context” was not involved here. The appellate court itself
weighed the credibility of codefendant’s testimony as
contained in the record, and found that a fact-finder
could not find it clear and convincing. This case is now
pending in the New Jersey Supreme Court.
In State v. Slocum, 130 N.J. Super. 358 (App. Div.
1974), the court held that evidence of a prior crime
committed five years earlier could be admitted although
the defendant was acquitted of that offense. Slocum
involved the robbery of a store during which the robber
knocked a female clerk to the ground and savagely
stomped on her head. Five years before this assault, the
victim testified against the defendant in a larceny
prosecution in which he was ultimately acquitted. The
evidence of the prior crime was held properly admitted to
demonstrate the defendant’s malice and desire for
revenge against the victim. Thus, it tended to prove the
intent element of the offense of atrocious assault and
battery. State v. Slocum 130 N.J. Super. at 362-64.
Testimony of a witness that he had been shot three
days before the original date at the instigation of the
defendant was not inadmissible as other crimes evidence
since it evidenced a consciousness of guilt and indicated
conduct inconsistent with defendant’s claim of
innocence. State v. Lassiter, 197 N.J. Super. 2 (App. Div.
1984).
It is to be remembered that proof of other crimes,
where relevant, must be demonstrated through
competent evidence. Even where it is proper for the State
to offer proof of a defendant’s other offense, that proof
may not be embodied in otherwise inadmissible hearsay
testimony. State v. Bass, 221 N.J. Super. 466, 480 (App.
Div. (1987), certif. denied, 110 N.J. 186 (1988); see also
State v. Ingenito, 87 N.J. 204, 224 (1981).
To justify admission of other crimes evidence, the
State must demonstrate that the jury will not consider
the evidence as showing the defendant’s criminal
capacity. However, a lesser standard of admissibility is to
be employed when a defendant attempts to adduce
evidence of other crimes to exculpate himself. In State v.
Garfole, 76 N.J. 445 (1978), the defendant was charged
with a sexual assault. He attempted to show that he had
an alibi during four other sexual assaults that were of an
allegedly similar nature. The Supreme Court held that
a defendant who seeks to admit evidence of other crimes
is not bound by the same high standard of proof as the
State. However, the defendant must demonstrate the
relevance of the evidence and must also satisfy the
strictures of N.J.R.E. 403. See also State v. Gookins, 135
N.J. 42, 47-48 (1994); State v. Fulston, 325 N.J. Super.
184 (App. Div. 1999), certif. denied, 163 N.J. 397
(2000); State v. Dreher, 302 N.J. Super. 408, 457 (App.
Div.), certif. denied, 152 N.J. 10 (1997); State v.
Landano, 271 N.J. Super. 1, 381 (App. Div.), certif.
denied, 137 N.J. 164 (1994).In State v. Williams, 214 N.J. Super. 12 (App. Div.
1986), the Appellate Division examined the lesser
standard of similarity of other crimes required to justify
the use of such evidence by a defendant instead of the
State. In Williams, the victim was attacked and stabbed
at least nine times by an assailant who was also “pulling
at her clothes.” The defendant attempted to introduce
evidence that another person living in the area had twice
raped women at the same location, threatening one with
a knife and stabbing another eight times. The Appellate
Division held that this evidence was improperly excluded
under the diminished standard of Garfole for the
defensive use of other crimes evidence. The Court cited
as similarities the proximity of the location of all three
attacks; in all three the victims were grabbed suddenly
and threatened; all involved the use of knife; one victim
was stabbed eight times and another nine times; and in
two cases the victim was raped and that in Williams a
sexual element could be inferred. The court balanced the
probative value of this other crimes evidence against the
issues of undue consumption of time and jury confusion,
former Evid. R. 4, and, finding the latter two elements
“not particulary weighty” under the facts of the case,
concluded that the other crimes evidence should have
been admitted.Where entrapment is claimed by a defendant, the
State is restricted to offering prior convictions of the
defendant similar to that with which he is charged, in
order to show predisposition to commit the offense. State
v. Gibbons, 105 N.J. 67 (1987). The court found