is because of the State’s right to ensure that reliable
evidence is presented to the trier of fact. United States v.
Sheffer, 523 U.S. 303 (1998).
The hearsay rule is not violated if a law enforcement
officer testifies that he did some act, such as going to the
scene of a crime “upon information received,” as it is
intended to demonstrate that the officer did not act
arbitrarily. State v. Bankston, 63 N.J. 261 (1973). If the
officer becomes specific about what he has been told of
the defendant’s involvement, the rule has been
transgressed. State v. Roach, 146 N.J. 208, 224-25, cert.
denied, 519 U.S. 1021 (1996); State v. Irving, 114 N.J.
427, 444 (1989); State v. Farthing, 331 N.J. Super. 58
(2000); State v. Alston, 312 N.J. Super. 102, 113 (App.
Div. 1998). Depending on the circumstances, a
Bankston error can be harmless. State v. Irving, 114 N.J.
at 447-48; State v. Brown, 325 N.J. Super. 447, 451-52
(App. Div. 1999), certif. denied, 163 N.J. 76 (2000);
State v. Douglas, 204 N.J. Super. 265, 272-73 (App.
Div.), certif. denied, 102 N.J. 378 (1985).
A statement by a third person which did not
implicate the defendant but was offered to establish that
an argument had occurred prior to the shooting of the
victim was not “offered to prove the truth of the matter
stated” and was therefore not hearsay. State v. Johnson,
216 N.J. Super. 588, 599-600 (App. Div. 1987).
The precise text of each exception should be
consulted in advance since some exceptions are only
applicable in civil matters. See, e.g., N.J.R.E. 804(b)(6),
formerly Evid. R. 63(32) (reliable statements by deceased
declarants); State v. Bunyan, supra.
Below are set forth some of the rules of law established
to govern application of the hearsay rule and its
exceptions in criminal traits.
B. Adoptive Admissions (See also, SELF-INCRIMINA-
TION, this Digest)
N.J.R.E. 803(b)(2), formerly Evid. R. 63(8)(b),
permits the introduction of a hearsay statement against a
party which is “a statement whose content the party has
adopted by word or conduct or in whose truth the party
has manifested belief[.]” This exception must be used
with caution and only when the court is satisfied that all
conditions for its application have been established by
the proponent. State v. Dreher, 302 N.J. Super. 408, 506
(App. Div.), certif. denied, 152 N.J. 10 (1997). There
must be a preliminary judicial finding that the party has
adopted or manifested a belief in the assertion of another.
State v. Gorrell, 297 N.J. Super. 142, 151 (App. Div.
1996). Thus, a statement by another that the defendant
smiled silently when called a “butcher” shortly after an
alleged knife attack would have permitted, but not
required, findings by the court and the jury that the
defendant’s silence was an implied or adoptive
admission. The contents of the statement should be clear
such that there is no ambiguity regarding what the party
is adopting. State v. Briggs, 279 N.J. Super. 555 (App.
Div.), certif. denied, 141 N.J. 99 (1995).However, equivocal or evasive responses to specific
comments or questions may be adoptive admissions. See
also State v. Thompson, 59 N.J. 396 (1971). In
Thompson, a defendant who was suspected of murder had
a telephone conversation with his sister in which she
referred to the details of the offense and the murderer’s
escape. The defendant responded: (1) that the crime
“just was one of those things”; (2) that he had “some
pretty close calls” in the swamp where the murderer
escaped, and (3) “no comment” to his sister’s inquiry as
to whether he committed the murder. The Supreme
Court held that these statements by the defendant
constituted admissions in which he adopted the truth of
his sister’s declarations. This adoption occurred because
under the circumstances, the defendant’s equivocal
replies became indicative of guilt, since an innocent
person would have denied involvement in the murder.
They were “tacit admissions.” Id. at 408-10.Once a defendant is in police custody, however, no
negative inference may be drawn from silence, and thus
N.J.R.E. 803(b)(2) cannot apply. State v. Deatore, 70
N.J. 100 (1976); State v. Ripa, 45 N.J. 199, 204 (1965);
see also Doyle v. Ohio, 426 U.S. 610 (1976). However,
under certain circumstances, a defendant’s silence or
conduct may be utilized to impeach credibility if the
defendant testifies. See also State v. Marks, 201 N.J. Super.
514, 529-34 (App. Div.), aff’d o.b., 59 N.J. 156 (1971),
cert. denied, 404 U.S. 1047 (1972).C. Business and Official RecordsN.J.R.E. 803(c)(6), formerly Evid. R. 63(13) allows
the admission of:A statement contained in a writing or other record of acts,
events, conditions, and, observation by a person with
actual knowledge or from information supplied by such
a person, if the writing or other record was made in the
regular course of business and it was the regular practice
of that business to make it, unless the sources of