cdTOCtest

Tirone, 64 N.J. at 227. See also, State v. Rajnai, 132 N.J.
Super. 530, 538 (App. Div. 1975). However, it is not
necessary that this limiting instruction be given at the
time the evidence is admitted. State v. Hummel, 132 N.J.
Super. at 424. Moreover, the applicability of the fresh
complaint doctrine is unaffected by the order of proofs in
the State’s case in chief. Thus, testimony of the fresh
complaint may precede the testimony of the victim. Id.
at 422; cf. State v. Balles, 47 N.J. at 340 (no prejudice to
defendant where victim’s mother testified before the
victim).

Evidence which goes beyond the strict parameters of
“fresh complaint” may still be admissible under some
other evidence rule. For example, details of a complaint
are inadmissible, as fresh complaint evidence, but could
be admitted under N.J.R.E. 803(a)(2) as evidence as a
prior consistent statement after an explicit or implicit
charge of recent fabrication. See also State v. King, 115
N.J. Super. 140, 146 (App. Div.), certif. denied, 59 N.J.
268 (1971). Moreover, if the complaint is more closely
related to the time of the sexual assault, then the victim’s
statements may constitute excited utterances admissible
pursuant to N.J.R.E. 803(a)(2). State v. Bass, 221 N.J.
Super. 466 (App. Div. 1987), certif. denied, 110 N.J. 186
(1988).

X. HABIT OR CUSTOM

N.J.R.E. 406 follows former Evid. R. 49 and 50 and
states:

a. Evidence, whether corroborated or not, of habit or
routine practice is admissible to prove that on a specific
occasion a person or organization acted in conformity
with the habit or routine practice.

b. Evidence of specific instances of conduct is
admissible to prove habit or routine practice if evidence
of a sufficient number of such instances is offered to
support a finding of such habit or routine practice.

A habit is a “person’s regular practice of responding
to a particular kind of situation with a specific kind of
conduct.” State v. Kately, 270 N.J. Super. 356, 362 (App.
Div. 1994); State v. Radziwil, 235 N.J. Super. 557, 564
(App. Div. 1989), aff’d o.b., 121 N.J. 527 (1990). The
distinction between habit evidence and a character trait
turns upon the regularity and situation-specific nature of
the conduct. Id. at 565.

Thus, in Kately, 271 N.J. Super. at 363-64, evidence
of the defendant’s nightly drinking parties was properly

admitted as habit evidence because it specifically

described his routine practice of drinking in a particular

situation and was relevant to prove reckless driving in a

death by auto case. Similarly, in Radziwill, 235 N.J.

Super. at 565-66, a bartender’s testimony that the

defendant became intoxicated nearly every week at a

social club was proper habit evidence to prove defendant

was intoxicated on the weekend of a fatal auto accident.

In State v. Bogus, 223 N.J. Super. 409 (App. Div.),

certif. denied, 111 N.J. 567 (1988), however, the court

held that evidence of the defendant’s driving record for

speeding, disobeying traffic signals, and driving

carelessly was not admissible as habit or custom evidence

in an aggravated manslaughter prosecution to show that

the defendant drove recklessly, but was harmless given

the defendant’s own unobjected-to testimony regarding

that record.

XI. HEARSAY

A. Generally

A statement other than one made by the declarant

while testifying at a trial or hearing which is offered to

prove the truth of the matter stated, is hearsay pursuant

to N.J.R.E. 801(c), formerly Evid. R. 63. See, e.g., State

v. White, 158 N.J. 230, 238 (1999); State v. Robinson,

139 N.J. Super. 58, 62 (App. Div. 1976), certif. denied,

75 N.J. 534 (1977); State v. Hummel, 132 N.J. Super.

412, 424-425 (App. Div.), certif. denied, 67 N.J. 102

(1975). A specific statement is unnecessary; hearsay can

be in the form of an inference, State v. Spencer, 319 N.J.

Super. 284, 304-05 (App. Div. 1999), or be nonverbal

conduct which is a substitute for words. See also N.J.R.E.

801(a); State v. Simmons, 52 N.J. 538, 541 (1968); State

v. Jones, 308 N.J. Super. 15 (App. Div. 1998).

Exceptions to the general rule excluding hearsay, see

also N.J.R.E. 802, are set forth in N.J.R.E. 803 and

N.J.R.E. 804. The hearsay exceptions in N.J.R.E. 803 do

not require the declarant to be unavailable, while those in

N.J.R.E. 804 apply only if the declarant is unavailable.

Relevant evidence presented by the defense may

nonetheless be excluded under the hearsay rule if it does

not meet a recognized exception. Only if the hearsay

offered has such indicia of reliability, akin to those

implicated by the unique facts of Chambers v. Mississippi,

410 U.S. 284 (1973), that a defendant is denied

fundamental fairness, does the Sixth Amendment require

the admission of hearsay despite the lack of an applicable

exception. State v. Bunyan, 154 N.J. 261 (1998). This