distinctive features of a silver pistol used in a prior crime
would be admissible under Evid. R. 55 in an unrelated
murder trial to establish either the identity of the
perpetrator or the weapon used. State v. Fortin, 162 N.J.
at 529.
Cofield, in turn, had cited State v. Long, 119 N.J. 439,
475-76 (1990), for its example of the distinctive features
of a silver pistol used in a prior crime constituting the
“signature” establishing the identity of the perpetrator of
the crime for which a defendant is being tried.
Introduction, in a murder prosecution, of evidence of
defendant’s accomplishing alleged prior rape and alleged
prior assault by the use of force to the throat was improper
admission of other crimes evidence to establish identity
and constituted reversible error. State v. Reldan, supra.
XXIII. PRIOR INCONSISTENT STATEMENTS
Pursuant to N.J.R.E. 803(a)(1), formerly Evid. R.
63(1)(a):
The following statements are not excluded by the hearsay
rule:
a. Prior statements of witnesses. A statement previously
made by a person who is a witness at trial or hearing,
provided it would have been admissible if made by the
declarant while testifying and the statement:
- is inconsistent with the witness’ testimony at the trial
or hearing and is offered in compliance with Rule 613.
However, when the statement is offered by the party
calling the witness, it is admissible only if, in addition to
the foregoing requirements, it (A) is contained in a sound
recording or in a writing made or signed by the witness
in circumstances establishing its reliability or (B) was
given under oath subject to the penalty of perjury at a trial
or other judicial, quasi-judicial, legislative, administra-
tive or grand jury proceeding, or in a deposition; or...
N.J.R.E. 803(a)(1) renders prior inconsistent
statements of a witness admissible as substantive proof
provided the statement would have been admissible if
made by the witness while testifying at the hearing and
the other requirements of the rule have been met. State
v. Gross, 216 N.J. Super. 98 (App. Div. 1987), aff’d 121
N.J. 1 (1990); State v. Cole, 154 N.J. Super. 138 (App.
Div. 1977), certif. denied, 78 N.J. 415 (1978); State v.
Maddox, 153 N.J. Super. 201 (App. Div. 1977); State v.
Provet, 133 N.J. Super. 432 (App. Div. 1975), certif.
denied, 68 N.J. 174 (1975).In Gross, the Appellate Division, in a ruling upheld
by the Supreme Court, outlined the circumstances to be
considered by a trial court during a hearing pursuant to
N.J.R.E. 104 to determine whether the reliability of a
prior inconsistent statement has been sufficiently
established:(1) the declarant’s connection to and interest in the
matter reported in the out-of-court statement, (2) the
person or persons to whom the statement was given, (3)
the place and occasion for giving the statement, (4)
whether the declarant was then in custody or otherwise
the target of investigation, (5) the physical and mental
condition of the declarant at the time, (6) the presence or
absence of other persons, (7) whether the declarant
incriminated or sought to exculpate himself b his
statement, (8) the extent to which the writing is in the
declarant’s hand, (9) the presence or absence, and the
nature of, any interrogation, (10) whether the offered
sound recording or writing contains the entirety, or only
a portion or a summary, of the communication, (11) the
presence or absence of any motive to fabricate, (12) the
presence or absence of any express or implicit pressures,
inducements or coercion for the making of the statement,
(13) whether the anticipated use of the statement was
apparent or made known to the declarant, (14) the
inherent believability or lack of believability of the
statement and (15) the presence or absence of
corroborating evidence. [State v. Gross, 216 N.J. Super. at
109-10].The trial court is to determine whether the statement
is reliable by a preponderance of the evidence. State v.
Gross, 121 N.J. at 16. If the statement is admitted, the
court must not tell the jury of its findings of reliability,
but rather should instruct the jury to consider the same
kinds of factors, including the status of the witness, in
assessing its credibility and probative worth. Id. at 16-
17.Corroboration of a prior inconsistent statement is not
required for admissibility; it is only a factor to be
considered by the trial court. State v. Mancine, 124 N.J.
232 (1991).A feigned lack of recollection regarding the facts
contained in a prior statement renders the testimony to
be inconsistent as an implied denial. State v. Brown, 138
N.J. 481, 540 (1994); State v. Bryant, 217 N.J. Super. 72,