for trial to proceed in absentia. See State v. Hudson, 119
N.J. 165, 181 (1990) (defendant’s failure to appear for
trial after receiving notice of the trial date constitutes a
waiver of the right to be present); State v. Finklea, 147
N.J. 211 (1996), cert. denied, 522 U.S. 837 (1997) (once
defendant has been given actual notice of a scheduled trial
date, non-appearance on the scheduled or adjourned trial
date is deemed a waiver of the right to be present absent
a showing of justification by the defendant); State v.
Sellars, 331 N.J. Super. 110 (App. Div. 2000)(finding
defendant did not waive his right to be present at trial);
State v. Ellis, 299 N.J. Super. 440, 449 (App. Div.), 151
N.J. 74 (1991) (to sustain a waiver of the right to be
present, it must be shown the trial date was actually
communicated to defendant and that he unjustifiably
failed to appear). Note: this issue is currently pending
before the Supreme Court in State v. Whaley, certif.
granted 164 N.J. 189 (2000).
Under the confrontation clause, defendant has a
constitutional right to be present at a suppression
hearing. State v. Robertson, 333 N.J. Super. 499 (App.
Div. 2000).
B. Cross-examination
The Sixth Amendment Confrontation Clause
encompasses the fundamental right of cross-examina-
tion. See Smith v. Illinois, 390 U.S. 129, 131 (1968). See
Davis v. Alaska, 415 U.S. 308, 315-16 (1974).
Revealing a witness’s bias or motivation in testifying is
among the proper and important functions protected by
the right to cross-examination. Id. at 316-17.
The Confrontation Clause only “guarantees an
opportunity for effective cross-examination, not cross-
examination that is effective in whatever way and to
whatever extent the defense may wish.” Delaware v.
Fensterer, 474 U.S. 15, 20 (1985).
Cross-examination is generally limited to the scope of
direct examination. N.J.R.E. 611(b).
Cross-examination and re-cross examination of
material brought out on direct and redirect are the
principal means to test the trustworthiness of the witness.
Davis v. Alaska, 415 U.S. 308, 316 (1974). See State v.
Zenquis, 251 N.J.Super. 358, 367 (App. Div.1991), aff’d
131 N.J. 84 (1993) (limitation on defendant’s right to
cross-examine police officer as to vantage point from
which he observed alleged narcotics sale deprived
defendant of right to confront witnesses against him);
State v. Wormley, 305 N.J. Super 57, 66 (App. Div. 1997)
(defense was entitled to present impeachment evidence
regarding longstanding drug addiction of state’s
witness).Re-cross is to redirect as cross-examination is to
direct. A party is entitled to re-cross examination only
where “new information is brought out on re-direct
examination. United States v. Riggi, 951 F.2d 1368,
1376 (3d Cir. 1991); see also State v. Martini, 160 N.J.
248, 161 (1999) (If defense counsel had put on certain
evidence in mitigation at penalty-phase of capital trial, it
would have opened the door to damaging rebuttal
evidence by the State; the State is entitled to impeach
mitigation testimony with relevant evidence of a
defendant’s past conduct, subject to an instruction that
the evidence is admissible only for the limited purpose of
rebutting mitigating factors and cannot be used to add to
the weight assigned by the jury to the aggravating factors.The Sixth Amendment is offended where a witness’
testimony “add[s] critical weight to the prosecution’s
case in a form not subject to cross-examination.” Todaro
v. Fulcomer, 944 F.2d 1079, 1084-85 (3d Cir. 1991).Defendant’s confrontation rights require disclosure
of police personnel records if some factual predicate is
advanced making it reasonably likely the information in
the records could affect the credibility of the officer, who
was also the State’s key witness. State v. Harris, 316 N.J.
Super. 384 (App. Div. 1998).Trial judges retain wide latitude under the
Confrontation Clause in limiting cross-examination to
avoid harassment, prejudice, confusion of the issues or
interrogation that is repetitive or only marginally
relevant. Delaware v. Van Arsdall, 475 U.S. 673, 679
(1986); see State v. McDougald, 120 N.J. 523, 577-78
(1990); State v. Wishnatsky, 255 N.J. Super. 67 (Law Div.
1990) (cross-examination of clinic executive director as to
her opinion concerning abortion as taking of human life
was properly precluded as exceeding scope of direct
examination, in prosecution of abortion protestor for
blocking public passage at clinic).Defendant’s right to confrontation was violated
when the trial judge prevented defense counsel from
cross-examining a police officer as to testimony elicited at
a suppression hearing two months before, and merely
incorporated testimony adduced at the suppression
hearing into the record. State v. Allan, 283 N.J. Super.
622 (Law Div. 1995).