an attack on his credibility and was calculated to imply
that the witness had fabricated his account of the murder
of his brother pertaining to the defendant at the urging
of the investigators.
K. Prior Identification (See also, IDENTIFICATION,
this Digest)
A statement is admissible if previously made by a
person who is a witness at the trial if it is a prior
identification of a party and is “made under
circumstances precluding unfairness or unreliability.”
N.J.R.E. 803(a)(3), formerly Evid. R. 63(1)(a); State v.
Johnson, 216 N.J. Super. 588 (App. Div. 1987).
Testimony by police officers regarding descriptions of the
defendant given by the victim to the police is admissible
under this rule if the victim also testifies. Id. The
identification need not be unequivocal to be admitted.
State v. Swed, 255 N.J. Super. 228, 246 (App. Div. 1992).
L. Prior Testimony (See also, SIXTH AMENDMENT,
this Digest)
N.J.R.E. 804(b)(1) addresses the admissibility of
testimony in other proceedings. The rule, which requires
that the declarant be unavailable to testify, states in part
- Testimony in prior proceedings
(A) Testimony given by a witness at a prior trial of the
same or a different matter, or in a hearing or deposition
taken in compliance with law in the course of the same or
another proceeding, if the party against whom the
testimony is now offered had an opportunity and similar
motive in the prior trial, hearing or proceeding to develop
the testimony by examination or cross-examination.
While this rule would allow the introduction of the
defendant’s testimony from a first trial in a retrial after
reversal, where the defendant exercises his Fifth
Amendment right not to testify, it does not permit those
portions of the prior testimony which would be
inadmissible under some other rule of evidence. State v.
Farquharson, 321 N.J. Super. 117, 122 (App. Div.), certif.
denied, 162 N.J. 129 (1999). Thus, the defendant’s
prior testimony regarding his previous convictions, only
admissible under N.J.R.E. 609 if he was actually a
witness, should have been redacted.
A Law Division case recently held that a defendant
may introduce the grand jury testimony of a now
unavailable witness, concluding that the State had both
the opportunity and a similar motive to examine the
exculpatory portions of that witness’ testimony before
the grand jury. State v. Gentile, 331 N.J. Super. 386 (Law
Div. 2000).M. State of Mind (See also RES GESTAE, supra)N.J.R.E. 803(c)(3), formerly Evid. R. 63(12)(a),
allows the admission of a hearsay statement of:
Then existing mental, emotional, or physical condition.
A statement made in good faith of the declarant’s then
existing state of mind, emotion, sensation or physical
condition (such as intent, plan, motive, design, mental
feeling, pain, or bodily health), but not including a
statement of memory or belief to prove the fact
remembered or believed unless it relates to the execution,
revocation, identification, or terms of declarant’s will.A statement proffered pursuant to this rule can only
establish a state of mind which existed when the
declaration was made. See State v. Baldwin, 47 N.J. 379,
394, cert. denied, 385 U.S. 980 (1966); State v. Sejuelas,
94 N.J. Super. 576, 582-83 (App. Div. 1967). However,
application of the rule is somewhat broader. In practice,
courts have been willing to recognize that an individual’s
state of mind may continue. Thus, it allows statements
of a declarant’s intent to act in the future, if the
occurrence of that act is in dispute. State v. Benedetto, 120
N.J. 250, 255 (1990); State v. Downey, 237 N.J. Super.
4, 12 (App. Div. 1989), certif. denied, 121 N.J. 627
(1990). See also State v. Scherzer, 301 N.J. Super. 363,
422-423 (App. Div.), certif. denied, 151 N.J. 466
(declaration of mental state by sexual assault victim three
days later probative of mental state at the time of the
crime); State v. Williams, 106 N.J. Super. 170 (App.
Div.), certif. denied, 55 N.J. 78 (1969), cert. denied, 397
U.S. 1057 (1970); In re Spiegelglass, 48 N.J. Super. 265
(App. Div.), certif. denied, 26 N.J. 302 (1968). Hence,
the rule admits statements to explain the meaning of both
previous and subsequent conduct. State v. Baldwin,
supra.This assumption of a continuing state of mind,
however, is not without limitation. It is obvious that a
state of mind may change, especially where the context in
which the opinion was formulated has been altered. State
v. Williams, 106 N.J. Super. at 172-73. Accordingly, the
determination of the probative force, and therefore the
admissibility, of a declaration of an individual’s mental
state is left to the discretion of the trial court. Id.; In re
Spiegelglass, 48 N.J. Super. at 272-73. The standard
under which the discretion is to be exercised is whether
or not there is a reasonable basis to conclude that the
relevant state of mind still exists. Id. at 273.