cdTOCtest

The victim’s statement fell within the excited utterance
exception of Evid. R. 63(4)(b), while the defendant’s
“included” statement was an admission under Evid. R.
63(7). See also Dalton v. Barone, 310 N.J. Super. 375,
378 (App. Div. 1998).

A double hearsay statement attributed to an alleged
eyewitness to a murder, that the witness herself
committed the crime, was not required to be admitted,
since it was for the truth of the matter stated. State v.
Dreher, 251 N.J. Super. 300, 324-25 (App. Div. 1991),
certif. denied, 127 N.J. 564 (1992); see also State v. Torres,
313 N.J. Super. 129, 157-58 (App. Div.), certif. denied.,
156 N.J. 425 (1998).

G. Informant Hearsay

In State v. Bankston, 63 N.J. 261, 268-69 (1973),
the Supreme Court of New Jersey held that the hearsay
rule is not violated when a police officer explains the
reason he approached a suspect or went to the scene of the
crime by stating that he did so “upon information
received.” Such testimony has been held to be admissible
to show that the officer was not acting in an arbitrary
manner or to explain his subsequent conduct. However,
when the officer becomes more specific by repeating what
some other person told him concerning a crime by the
accused, the testimony violates the hearsay rule. See also
State v. Irving, 114 N.J. 427 (1989); State v. Douglas, 204
N.J. Super. 265 (App. Div.), certif. denied, 102 N.J. 378
(1985). The admission of such testimony violates the
accused’s Sixth Amendment right to be confronted by
witnesses against him. See State v. Farthing, 331 N.J.
Super. 58, 75 (App. Div. 2000); State v. Alston, 312 N.J.
Super. 102, 113 (App. Div. 1998); State v. Long, 137 N.J.
Super. 124, 133-34 (App. Div.), certif. denied, 70 N.J.
143 (1976).

When the logical implication to be drawn from the
testimony leads the jury to believe that a non-testifying
witness has given the police evidence of the defendant’s
guilt, the testimony should be disallowed as hearsay.
State v. Roach, 146 N.J. 208, 224, cert. denied, 519 U.S.
1021 (1996); State v. Irving, 114 N.J. at 444-48; State v.
Bankston, 63 N.J. at 277; State v. Baker, 228 N.J. Super.
135, 140 (App. Div. 1989). In certain circumstances,
the admission of such evidence has been held to have been
harmless. See, e.g., State v. Hightower, 120 N.J. 378, 410
(1990); 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. Johnson, 325
N.J. Super. 78, 88 (App. Div. 1999); State v. Torres, 313
N.J. Super. 129, 155-58 (App. Div.), certif. denied, 156

N.J. 425 (1998); State v. Douglas, 204 N.J. Super. at 272-

73.

H. Lists and Compilations

For a statement to be admissible under N.J.R.E.

803(c)(17), it must (1) be a statement contained in a

compilation under the rule, and (2) the compilation

must contain matters used and relied upon by persons

engaged in an “occupation” or by members of the general

public. Biunno, Current N.J. Rules of Evidence (2000),

Comment 1 to N.J.R.E. 803(c)(17) at 857. By including

documents relied on by members of the public, the rule

expands the scope of former Evid. R. 63(30).

In State v. McGee, 131 N.J. Super. 292 (App. Div.

1974), the defendant was charged with bringing a stolen

firearm into New Jersey. The prosecution sought to

establish that the gun was stolen through testimony

regarding a NCIC computer printout of stolen firearms.

The Appellate Division held that former Evid. R. 63(30)

might justify the admission of this evidence because

generally “the manner of the list’s compilation affects

only the weight to be accorded the evidence and not its

admissibility.” However, the Court ruled that there was

an insufficient showing of reliability to warrant the

admission of this hearsay evidence. This conclusion was

based on the absence of any showing: (1) how and when

the owner of the firearm reported its theft to his local

police; (2) how and who fed this data into the computer;

(3) who programmed the computer and how it was

programmed; (4) how the data was retrieved from the

computer and (5) the accuracy of those who operated the

computer. The court also noted that the computer

printout was not presented at trial and there was no

showing that the owner of the firearm was unavailable as

a witness.

I. Past Recollection Recorded

N.J.R.E. 803(c)(5), formerly Evid. R. 63(1)(b),

provides for the admission of:

A statement concerning a matter about which the witness

is unable to testify fully and accurately because of

insufficient present recollection if the statement is

contained in a writing or other record which (A) was

made at a time when the fact recorded actually occurred

or was fresh in the memory of the witness, and (B) was

made by the witness himself or under the witness’

direction or by some other person for the purpose of

recording the statement at the time it was made, and (C)

the statement concerns a matter of which the witness had