77-79 (App. Div.), certif. denied, 108 N.J. 202, cert.
denied, 484 U.S. 978, 108 S.Ct. 490, 98 L.Ed.2d 488
(1987); State v. Burgos, 200 N.J. Super. 6, 10-12 (App.
Div.), certif. denied, 101 N.J. 304 (1985). However, if a
witness refuses answer questions, or to take the oath, he
has not given “testimony” and therefore a prior statement
would not be admissible. State v. Caraballo, 330 N.J.
Super. 545, 556 (App. Div. 2000); State v. Williams, 182
N.J. Super. 427, 434 (App. Div. 1982).
When evidence is substantively admitted pursuant
to N.J.R.E. 803(a)(1), it is error for a trial court to instruct
the jury that the evidence is limited to the issue of
credibility. State v. Ramos, 217 N.J. Super. 530, 538
(App. Div. 1987); State v. Maddox, 153 N.J. Super. at
209-11. However, a limiting instruction must be given
when evidence is admitted solely under the
neutralization doctrine pursuant to N.J.R.E. 607. State
v. Provet, 133 N.J. Super. at 437-38.
XXIV. REBUTTAL
The scope of proper rebuttal evidence, and whether
or not it should be admitted, are matters within the
discretion of the trial court. State v. Cook, 330 N.J. Super.
395, 418 (App. Div.), certif. denied, N.J.
(2000); State v. Sanducci, 150 N.J. Super. 400, 401-02
(App. Div.), certif. denied, 75 N.J. 524 (1977). Accord,
State v. Balles, 47 N.J. 331, 343 (1966), cert. denied, 388
U.S. 461 (1967). In Sanducci, the defendant testified
that he did not attempt to extort money from the victim.
In rebuttal, the State proffered taped telephone
conversations in which the victim was threatened by the
defendant. The Appellate Division held that this was
properly admitted as rebuttal evidence. State v. Sanducci,
150 N.J. Super. at 401-02. See also State v. Conyers, 58
N.J. 123, 135 (1971).
While ordinarily rebuttal is confined to the
contradiction of specific subjects introduced on direct or
cross-examination of defense witnesses, the trial court’s
discretion to admit rebuttal evidence extends to
testimony which would properly have been admissible in
the case in chief. State v. Carroll, 256 N.J. Super. 575,
604 (App. Div.), certif. denied, 130 N.J. 18 (1992); State
v. Provoid, 110 N.J. Super. 547, 557 (App. Div. 1970);
State v. DeRocco, 53 N.J. Super. 316, 324 (App. Div.
1959).
XXV. REFRESHING RECOLLECTION
Any object or writing may be used to refresh the
recollection of a witness. The object or writing employed
is not itself admitted into evidence. Where the witness’
memory has been refreshed, the admissible evidence is
the recollection of the witness and not the extrinsic paper,
with the test being whether the witness puts before the
court his independent recollection and judgment. State
v. Carter, 91 N.J. 86, 123 (1982); see N.J.R.E. 612. The
basis for application of this rule is a claim that a witness’
memory is impaired. State v. Williams, 226 N.J. Super.
94, 103 (App. Div. 1988). The witness must have prior
knowledge of the subject of the statement that could be
refreshed by the information therein. Lautek Corp. v.
Image Business Systems Corp., 276 N.J. Super. 531, 545
(App. Div. 1994). In propounding questions, the
prosecutor may not merely parrot a statement ostensibly
used to refresh recollection. State v. Caraballo, 330 N.J.
Super. 545, 558 (App. Div. 2000), citing Lautek Corp.,
276 N.J. Super. at 546.If, after an attempt at refreshing the witness by the
prior statement, the witness is still unable to testify fully
and accurately as to its subject, the statement may be
admissible under N.J.R.E. 803(c)(5), which permits the
recorded statement to be admitted into evidence as proof
of the matter contained therein if certain conditions are
met. See State v. Hacker, 177 N.J. Super. 533, 539 (App.
Div. 1981), certif. denied, 87 N.J. 364 (1981). The
statement must be “contained in a writing or other record
which (A) was made at a time when the fact recorded
actually occurred or was fresh in the memory of the
witness, and (B) was made by the witness himself or
under the witness’ direction or by some other person for
the purpose of recording the statement at the time it was
made, and (C) the statement concerns a matter of which
the witness had knowledge when it was made, unless the
circumstances indicate that the statement is not
trustworthy[.]” N.J.R.E. 803(c)(5).XXVI. RELEVANCE
N.J.R.E. 401, formerly Evid. R. 1(2), provides that
evidence is relevant if it tends “to prove or disprove any
fact of consequence to the determination of the action.”
The inquiry focuses on the logical connection between
the offered evidence and a fact in issue, and if the evidence
offered makes the inference to be drawn more logical, it
should be admitted unless otherwise excludable under a
rule of law. State v. Covell, 157 N.J. 554, 565 (1999);
State v. Swint, 328 N.J. Super. 236, 252 (App. Div.),
certif. denied, ___ N.J. ___ (2000); State v. Hutchins, 241
N.J. Super. 353, 358 (App. Div. 1990); State v. Coruzzi,
189 N.J. Super. 273, 302 (App. Div.), certif. denied, 94
N.J. 531 (1983).