133 N.J. 299, 308 (1993) (officer’s testimony as to
driver’s statement that bag found in automobile trunk
belonged to defendant violated right to confrontation);
State v. Farthing, 331 N.J. Super. 58 (App. Div. 2000)
(investigator’s testimony that co-defendants gave sworn
statements implicating the defendant violated the
confrontation clause; co-defendant’s statements were
inadmissible under the co-conspirator exception to the
hearsay rule).
State v. Bunyan, 154 N.J. 261 (1998) (exclusion of
deceased witness’ exculpatory hearsay statement did not
violate Confrontation Clause).
E. Use of Hearsay and Expert Testimony
The right to confrontation is not violated when the
State’s expert witness could not specifically remember
how he came to a particular conclusion, since there is no
constitutional guarantee that every prosecution witness
be free of forgetfulness, confusion and evasion. Delaware
v. Fensterer, 474 U.S. 15, 21 (1985).
An expert’s testimony may be based on the work
done or even hearsay evidence of another expert,
particularly when the latter’s work is supervised by the
former. State v. Stevens, 136 N.J. Super. 262, 264 (App.
Div. 1975).
Law enforcement agencies do not have to preserve
breath samples of suspected drunk drivers in order for
results of breath-analysis tests to be admissible at trial, so
long as defendant has the opportunity to question the test
results. California v. Trombetta, 467 U.S. 479, 490
(1984). See State v. Casele, 198 N.J.Super. 462, 471
(App. Div. 1985) (“where the State in good faith, uses
up, consumes or even disposes of the balance of a blood
specimen in good faith, this does not preclude the
admission of competent evidence of the test and the
results at trial”); State v. Montijo, 320 N.J. Super. 483
(Law Div. 1998) (loss of statements by victim and
eyewitness as well as police photographs of the crime
scene, while regrettable, did not warrant dismissal of
indictment).
IV. RIGHT TO COMPULSORY PROCESS
A. Origin
In all criminal prosecutions the accused shall have the
right ... to have compulsory process for obtaining
witnesses in his favor... “ N.J. Const. Art. I, ¶ 10; U.S.
Const. Amend. VI. A defendant has the right to call
witnesses to testify in his or her defense. State v. Fort, 101
N.J. 123, 128-29 (1985); State v. Vassos, 237 N.J.Super.
585, 590-92 (App. Div. 1990).The constitutional right to compulsory process does
not grant to a defendant “the right to secure the
attendance and testimony of any and all witnesses: it
guarantees him ‘compulsory process’ for obtaining
witnesses in his favor.” United States v. Valenzuela-Bernal,
458 U.S. 858, 867 (1982). A requirement that co-
defendants agree not to testify favorably for defendant as
part of their plea agreement violated defendant’s right to
compulsory process. State v. Fort, 101 N.J. 123 (1985).Where the State agreed not to seek an extended term
sentence if co-defendant agreed not to testify against
defendant, defendant’s right to compulsory process was
violated. State v. Correa, 308 N.J. Super. 480, 484 (App.
Div. 1998). See also State v. Scherzer, 301 N.J. Super. 363,
429 (App. Div.), certif. denied 151 N.J. 466 (1997).A witness who has violated a sequestration order may,
in extraordinary circumstances, be barred from giving
testimony at trial. State v. Tillman, 122 N.J.Super. 137,
143-44 (App. Div.), certif. denied 62 N.J. 428 (1973).Unless violation of the sequestration order is due to
the consent, connivance, procurement or knowledge of
the defendant or his counsel, a trial judge should not
deprive a criminal defendant of his right to present
testimony. Where there was no intention to call the
witness at the time he or she was in the courtroom as an
observer, the witness should not be precluded from
testifying. State v. Dayton, 292 N.J. Super. 76, 90 (App.
Div. 1996).A potential defense witness who is in the Federal
Witness Protection program poses substantial jurisdic-
tional problems for the enforcement of a defendant’s
constitutional right to compulsory process. See State v.
Farquharson 280 N.J. Super. 239, 246 (App. Div. 1995).
In Farquharson, an out-of-state witness was not in any
witness protection program, and thus, it was determined
that the prosecution failed to act with good faith
diligence to ascertain the whereabouts of an absconding
co-defendant, who was a material witness, justifying
dismissal of the indictment. Id. at 251. See also State v.
Roman, 248 N.J. Super. 144, 149 (App. Div. 1991)
(where the Uniform Witness Act has been adopted by
another state, it is not beyond the power of the trial court
to compel appearance of a witness through the
procedures of that Act). Accord, Barber v. Page, 390 U.S.
719, 723 (1968) (while the fact that a witness was