cdTOCtest

other witnesses to threats uttered by the witness in
question.

In State v. James, 144 N.J. 538 (1996), the Supreme
Court held that once out-of-court and in-court
identification evidence is excluded as impermissibly
suggestive, it was error to admit this evidence
substantively under the “opening the door”, “complete-
ness” or “curative admissibility” doctrines if defendant
sought to question a carjacking victim about an earlier
misidentification of another as the perpetrator or about
his earlier description of the perpetrator. Forcing
defendant to chose between his right to cross-examine the
victim about the earlier misidentification and his due
process right to exclusion of unreliable identification
evidence was reversible error.

A prosecutor is entitled to obtain, through a
subpoena duces tecum, a transcript of the defendant’s
parole revocation proceeding for the prosecutor’s use at
trial, including cross-examination of defendant and his
witnesses. Records of parole revocation proceedings are
not privileged from such use as “official information”
under either Evid. R. 34 (N.J.R.E. 515) or the
confidentiality provisions of N.J.A.C. 10:70-12.1 or
N.J.A.C. 10:70-12.3 promulgated pursuant to N.J.S.A.
30:4-123.31. State v. Singleton, 158 N.J. Super. 517
(App. Div. 1978), aff’g 137 N.J. Super. 436 (Law Div.
1975)

A witness may be impeached through cross-
examination which focuses on his interest for testifying.
It was error for a court to restrict a cross-examination of
a prosecution witness to discover if the witness’s
testimony is motivated by the prosecutor’s decision to
cease an investigation into the general business
operations of the witness. State v. Mazur, 158 N.J. Super.
89, 103-105 (App. Div. 1978), certif. denied, 78 N.J.
399 (1978). This limitation was improper although
there was no evidence of an actual agreement between the
prosecutor and the witness to halt the investigation and
the investigation was not necessarily criminal in nature.
Id. It is the witness’s own motives which an opposing
party must be able to probe, not the objective fact of
whether there exists a bargain between the witness and
the prosecutor.

The trial courts do, however, have broad discretion in
determining the limits of cross-examination of witnesses
on issues of credibility, and the defense right to show the
interest of a witness does not give license to roam at will
under the guise of impeachment. State v. Kelly, 207 N.J.
Super. 114 (App. Div. 1986).

D. Impeachment with Prior Inconsistent Omission

In State v. Silva, 131 N.J. 438 (1993), the New Jersey

Supreme Court held that a prior statement of a witness

that omits a material circumstance within the present

testimony is sufficiently inconsistent to be used for

impeachment. Cross-examination in this area is

permissible if the proper foundation exists.

In State v. Perez, 304 N.J. Super. 609 (App. Div.

1997), the Appellate Division ruled that the reference in

the prosecutor’s summation to the failure of defendant’s

aunt, a trial witness, to earlier come forward and

exonerate him did not violate State v. Silva, 131 N.J. 438

(1993).

In State v. Dreher, 302 N.J. Super. 408 (App. Div.

1997), certif. denied, 152 N.J. 10 (1997), cert. denied,

524 U.S. 943 (1998), the Appellate Division upheld

defendant’s conviction for the brutal murder of his wife

rejecting, among other claims, defendant’s assertion that

his pre-arrest silence was improperly used against him

both substantively and for impeachment. The Appellate

Court found defendant’s silence was not compelled and

was properly admitted as relevant and its probative value

outweighed the prejudicial effect.

It is not inherently unfair to allow cross-examination

on a defendant’s notice of alibi that the defendant was

required to file before his attorney completed his

investigation where the trial court properly balanced the

probative value of the information against its potential

prejudice. The inconsistency between defendant’s trial

testimony and the original alibi notice was a permissible

subject of cross-examination. State v. Irving, 114 N.J.

427, 437-40 (1989).

If a defendant does not testify, however, comment on

the alibi notice is improper. State v. Lumumba, 253 N.J.

Super. 375, 396-97 (App. Div. 1992).

II. FAILURE TO PRODUCE WITNESS

In State v. Clawans, 38 N.J. 162 (1962), the

Supreme Court determined that generally the failure of

a party to produce before a trial tribunal proof which, it

appears, would serve to elucidate the facts in issue, raises

a natural inference unfavorable to him. But such an

inference cannot arise except upon certain conditions and

the inference is always open to destruction by explanation

of circumstances which make some other hypothesis a

more natural one than the party’s fear of exposure.