WITNESSESWITNESSESWITNESSESWITNESSESWITNESSES
(See also, EVIDENCE and IMMUNITY,
this Digest)
I. CROSS EXAMINATION
A. Impeachment Through Use of Prior Conviction
N.J.S.A. 2A:81-12 allows the evidentiary admission
of any prior conviction of a crime to affect the credibility
of any witness. See also N.J.R.E. 609. In State v.
Hawthorne, 49 N.J. 130 (1967), the New Jersey Supreme
Court interpreted the statute to require the evidentiary
admission of every crime to affect the credibility of a
witness. In State v. Sands, 76 N.J. 127 (1978), the Court,
after repeatedly rejecting attacks on the principle of
Hawthorne, decided that its view in Hawthorne was
mistaken, and that the statute should be interpreted to
vest discretion in the trial judge to admit or exclude a
criminal defendant’s prior convictions. This was found
to insure a fairer trial by allowing for the exclusion of a
remotely related conviction with its tendency to lead
jurors to believe that the defendant has a criminal
disposition. Also, mandatory admissibility was found to
discourage defendants from testifying, to the detriment
of the fact-finding process. 76 N.J. at 141-42.
The Court in Sands rejected arguments that some
crimes have no bearing on credibility, as those who do not
live within the law reasonably may be deemed less
credible than those who do. Prior convictions should
generally be admitted and the defendant must shoulder
the burden of proof to justify exclusion. Id. at 144.
Exclusion is only warranted upon a strong showing of
remoteness, but even a temporally remote offense may be
admitted if it is one of a series of criminal convictions. Id.
at 145. Remoteness arises from the length of time
between the conviction and the trial as well as from the
nature of the offense with regard to the defendant’s
honesty and veracity. These factors must be balanced
against the prejudice to a defendant.
In State v. Paige, 256 N.J. Super. 362, 373 (App. Div.
1992), certif. denied, 130 N.J. 17 (1992), the Appellate
Division disagreed with the contention that a 16-year-
old murder conviction was too remote to be admissible
for impeachment. In approving the use of a ten-year-old
murder conviction, the Appellate Division in State v.
Morris, 242 N.J. Super. 532, 543-45 (App. Div. 1990),
certif. denied, 127 N.J. 321 (1990), noted the seriousness
of the crime and the defendant’s long criminal history.
The decision to admit or preclude a defendant’s prior
convictions rests within the sound discretion of the trial
judge, who has a wide latitude in which to make the
decision. State v. Hicks, 283 N.J. Super. 301, 306 (App.
Div. 1995), certif. denied, 143 N.J. 327 (1996).
Ordinarily the prior conviction should be admitted; the
burden to justify exclusion rests on the defendant. Sands,
76 N.J. at 144; Hicks, supra; State v. Paige, 256 N.J. Super.
at 373. The trial court makes the decision by weighing
the impeachment value of the evidence against its
capacity for undue prejudice. State v. Paige, 256 N.J.
Super. at 372; see also N.J.R.E. 403. Undue prejudice is
found where the conviction is remote, that is, whether
because of its age or type it has little value as a reflection
of the defendant’s credibility. Sands, 76 N.J. at 144-45.This balancing standard is applicable to the use of
prior convictions to impeach the credibility of all
witnesses, specifically including non-defendant wit-
nesses in a criminal trial. State v. Balthrop, 92 N.J. 542,
546 (1983); State v. Harkins, 177 N.J. Super. 397, 401
(App. Div. 1981). In applying this standard, “the
balance will necessarily be affected by whose credibility
it is that is sought to be impeached by use of the prior
conviction.” State v. Balthrop, supra at 546.Moreover, the trial court must explain to the jury the
limited purpose of prior-conviction evidence. State v.
Sands, 76 N.J. at 142 n.3; State v. Ellis, 280 N.J. 533, 548
(App. Div. 1995).The Court revisited the prior-crimes impeachment
issue again in State v. Brunson, 132 N.J. 377 (1993).
Although it had rejected the idea of sanitization three
years earlier in State v. Pennington, 119 N.J. 547 (1990),
the Court modified Sands to hold that a defendant’s prior
crimes that are similar to an offense being tried must be
sanitized. “Sanitization” limits the State’s cross-
examination of a defendant to the degree of his prior
similar crime and the date of the offense. 132 N.J. at 391.
A defendant wary of jury speculation may waive
sanitization and introduce the nature of the offense. 132
N.J. at 392. A defendant with many prior crimes, some
similar to the charged offense and others dissimilar, is
rewarded in that the State must sanitize all of the prior
convictions, unless the State introduces only the
dissimilar convictions. 132 N.J. at 394.In State v. Singleton, 308 N.J. Super. 407 (App. Div.
1999), the trial court’s failure to follow the Brunson rule
that all convictions must be sanitized if one conviction
must be sanitized was found to be reversible error.