“change[d] the rule[s] of evidence so that what was
conclusive evidence of innocence of the higher grade of
murder when the crime was committed, namely, a
judicial conviction for a lower grade of homicide is not
received as evidence” in a subsequent murder
prosecution); Calder v. Bull, 3 U.S. (3 Dall.) 386, 390
(1798) (“every law that alters the legal rules of evidence,
and requires less, or different, testimony, that the law
required at the time of the commission of the offense, in
order to convict the offender is ex post facto”);Government
of Virgin Islands v. Civil, 591 F.2d 255, 259 (3d Cir.
1979) (repeal of corroboration statute reduced amount of
proof necessary for conviction and violated the ex post
facto prohibition); United States v. Henson, 486 F.2d
1292, 1304-1308 (D.C. Cir. 1973) (statute eliminating
trial court’s discretion in admitting prior criminal
convictions violated ex post facto prohibition).
- A law is ex post facto if it changes the rules of
evidence after the commission of the crime so that less or
different testimony is sufficient to convict a defendant of
the crime. State v. Donato, 106 N.J.L. 397 (E. & A.
1930). See also State v. Humanik, supra (court “tend[ed]
to believe” that N.J.S.A. 2C:4-2 [defendant must prove
diminished capacity by a preponderance of the evidence]
could be applied retroactively “because it does not
decrease the nature, amount or quality of the evidence the
State must present in order to obtain a conviction”).
D. Nature of the Impairment
“[T]o disadvantage the offender the statute need not
impair a vested right. The alteration of penal provisions
established by the Legislature is sufficient if the burden
on the defendant is made more onerous.” State v. T.P.M.,
189 N.J. Super. at 367, citing Weaver v. Graham, 450
U.S. at 29-30.
Compare, e.g., State v. T.P.M., 189 N.J. Super. at
366-368 (retrospective application of statutory modifi-
cation of expungement procedure did not violate ex post
facto clause, as expungement is a remedial measure, and
the denial of expungement does not prolong a
defendant’s punishment; expungement is not a
sentencing consideration and applies neither to the form
of sentence nor the extent of punishment; a defendant’s
interest in expungement is in obtaining a potential
remedy, not in retaining something which had already
inured to his benefit); State v. Davis, 175 N.J. Super. at
145-146. Davis held that the amendment of the Parole
Act to make commutation and work credits inapplicable
to reduce any judicial or statutory mandatory minimum
term of imprisonment could be applied retroactively
without conflicting with the ex post facto prohibition.
This was because parole is not a constitutional right, but
an act of leniency or grace and a device for the protection
of society through the rehabilitation of the offender.
Similarly, the granting of work credits is purely a
legislative function and cannot properly be included in
the sentencing procedure. When sentence is imposed
upon a defendant, there is no constitutional guarantee
that the provisions regarding parole will remain constant.
Thus, the retroactive application of the amended Parole
Act provision did not violate the ex post facto prohibition;
Trantino v. Department of Corrections, 168 N.J. Super.
220 (App. Div. 1979), certif. denied, 81 N.J. 338 (1979)
(new policy which refused to grant work credits towards
parole for time spent on death row and thereby altered
defendant’s estimated parole expectation date did not
offend the ex post facto prohibition, because a defendant
has no vested right in his estimated parole expectation
date); Zink v. Lear, 28 N.J. Super. at 515 (a change in the
parole laws is not an ex post facto violation provided that
the change does not result in a new penalty for the crime
committed or an increase in the sentence); Weaver v.
Graham, 450 U.S. at 29 (it violated the ex post facto
prohibition to retroactively eliminate “gain time” credits,
as those credits had already been earned by the petitioner
and the elimination thereof prolonged his punishment;
significantly, such credits appeared to have been
considered in the imposition of the petitioner’s
sentence); Ex parte Garland, 71 U.S. (4 Wall.) 333, 377
(1867) (exclusion from a profession is sufficient
deprivation to establish a violation of the ex post facto
clause). See also Loftwich v. Fauver, 284 N.J. Super. 530
(App. Div. 1995).See State v. Johns, 111 N.J. Super. 574 (App. Div.
1970). An amendment to the Sex Offender Act adding
incest to offenses specified therein could not be applied
to one who committed incest prior to the effective date of
the amendment in view of the ex post facto prohibition.
It was “not of controlling significance that a provision for
a commitment under the ... Act does not authorize a more
severe punishment than provided in the Crimes Act
section relating to incest, N.J.S.A. 2A:114-2.” What was
important was that it “authorize[d] different treatment of
and consequences to a defendant” and was thereby
potentially disadvantageous to him. Id. at 577, citing
Lindsey v. Washington, 301 U.S. 397, 401-402 (1937)
(“[w]e need not inquire whether the [statutory change] is
technically an increase in the punishment annexed to the
crime.... It is plainly to the substantial disadvantage of
petitioners”), and State v. Blanford, 105 N.J. Super. 56,
59-60 (App. Div. 1969), remanded sub nom. State v.
Horne, 56 N.J. 372 (1970) (itemizing some potentially