to advise him of his privilege against self-incrimination
prior to his trial testimony. The first concern of the court
should be the free flow of evidence. The wise judicial
course under these circumstances is to leave the matter of
suspicion of criminality attendant upon the actions of the
prospective witness to the prosecutor. State v. Jamison, 64
N.J. 363, 378-79 (1974). See Chambers v. Mississippi,
410 U.S. 284 (1973); Cf. Webb v. Texas, 409 U.S. 95
(1972). (It is improper for judge to discourage witness
from testifying by implying he would be on the witness
stand and be prosecuted for perjury). State v. Smith, 322
N.J. Super. 385 (App. Div.), certif. denied, 162 N.J. 489
(1999), recently reviewed the procedures approved in
Jamison to be utilized by a trial court when the privilege
against self-incrimination may be implicated for a
witness.
E. Excited Utterances
N.J.R.E. 803(c)(2), formerly Evid. R. 63(4)(b),
provides for the admission of:
A statement relating to a startling event or condition
made while the declarant was under the stress of
excitement caused by the event or condition and without
opportunity to deliberate or fabricate.
The rationale for the rule is that there is special
reliability of a spontaneous statement made at or near the
time of the observation of a startling event, due to the
excitement caused by the event. Matter of C.A., 146 N.J.
71, 98 (1996). Accord, State v. Williams, 106 N.J. Super.
170, 172 (App. Div.), certif. denied, 55 N.J. 78 (1969),
cert. denied, 397 U.S. 1057 (1970); State v. Newsome, 177
N.J. Super. 221, 230 (App. Div. 1980). Cf. State in the
Interest of C.A., 201 N.J. Super. 28, 32 (App. Div. 1985)
(disqualification of children as witnesses does not
foreclose admission of their statements because of
reliability of excited utterance of nervous excitement
rather than the declarant’s conscious recognition of a
general duty to tell the truth).
It is not necessary under N.J.R.E. 803(c)(2) that
there be a strict contemporaneity between an exciting
event and an excited utterance, as long as the excitement
generated by the event has not been dissipated by the
time of the utterance. Cestero v. Ferrara, 57, N.J. 497,
501-05 (1971). Thus, excited utterances have been
admitted into evidence by New Jersey courts even though
there existed a time interval between the exciting event
and the utterance. Id.; State v. Simmons, 52 N.J. 538, 542
(1968), cert. denied, 395 U.S. 924 (1969); Atamanik v.
Real Estate Management, Inc., 21 N.J. Super. 357, 362-64
(App. Div. 1952). But see Sas v. Strelecki, 110 N.J. Super.
14 (App. Div. 1970); Rogalsky v. Plymouth Homes, Inc.,
100 N.J. Super. 501 (App. Div.), certif. denied, 52 N.J.
167 (1968).State v. Bass, 221 N.J. Super. 466 (App. Div. 1987),
certif. denied, 110 N.J. 86 (1988), explored former Evid.
R. 63(4)(b) in the context of a hearsay declaration by a
three year old murder victim, killed by his father. The
victim had lived with the witness for nearly a year and had
developed a close relationship with her. A few months
after the child had returned to his own household, the
witness had taken the child, with the mother’s
permission, to go with the witness’ husband and her to
repair a refrigerator. While helping the child go to the
toilet, the witness saw apparent burn marks on his
buttocks, and asked him what happened. The child
responded that the defendant had “burned me with the
light.” Shortly thereafter, when the witness flicked a
cigarette lighter, the victim asked her “to please not burn
him with the lighter.” The Appellate Division held that
this hearsay was admissible under former Evid. R.
63(4)(b). The statement of the victim coupled with the
reaction to the lighter demonstrated that the victim was
in continued state of nervous excitement despite the fact
that the burning may have occurred a substantial time
before the statement. Significantly, the court noted the
age of the victim and held that the state of excitement
could be enhanced by the young age of the child. While
youth and naivete may extend the time during which the
nervous excitement continues to enhance the reliability
of the statement, they are not substitutes for the stress of
a nervous excitement.With respect to a statement by the victim’s older
brother, made about six hours after the child was beaten
to death by defendant, that the defendant had “walked
on [the victim’s] back,” the court in Bass held that it was
truly spontaneous as being made under the stress of the
nervous excitement of seeing his brother brutally beaten.In determining whether or not there was
opportunity to fabricate or deliberate, the court must
consider the element of time, the circumstances of the
incident, the mental and physical condition of the
declarant, and the nature of the utterance, i.e., whether
against the interest of the declarant or not, or made in
response to questions or involuntary. State v. Lazarchick,
314 N.J. Super. 522 (App. Div.), certif. denied, 157 N.J.
546 (1998).Thus, a rape victim’s statements, made in a voluntary
phone call to police from the hospital immediately after