rejected a Sixth Amendment right to confrontation
claim, finding that because the witness was under oath,
the right to cross-examination was preserved. Also
rejected were any claims regarding the technical
distortions of the image that the medium might cause.
The court stated that “any technical shortcomings fall
equally on both the state and the defendant.” Id. See also
State v. Washington, 202 N.J. Super. 187 (App. Div.
1985); State v. Crews, 208 N.J. Super. 224 (App. Div.
1986), aff’d 105 N.J. 498 (1987).
In State v. Rodriguez, 135 N.J. 3 (1994), a per curiam
opinion, the New Jersey Supreme Court affirmed
defendant’s convictions for kidnaping and related
offenses on the basis of the Appellate Division’s opinion
below. See State v. Rodriguez, 264 N.J.Super. 261 (App.
Div.1993). The appeal concerned the propriety of using
video-taping of the victim-witness’s cross-examination
after he suffered an apparent heart attack while testifying
in court. The court held that the videotaping of the
victim-witness did not violate the defendant’s right of
confrontation.
In State v. Bunyan, 154 N.J. 261 (1998), the
Supreme Court of New Jersey held that the trial court had
correctly denied defendant’s motion for a new trial based
on the exculpatory statement of a murder witness made
to a defense investigator nearly six years after the trial.
The Appellate Division, State v. Bunyan, 299 N.J. Super.
467 (App. Div. 1997), had reversed the denial of the new
trial motion and remanded the matter for an evidentiary
hearing on the reliability of the statement, ruling that
under Chambers v. Mississippi, 410 U.S. 284 (1973), the
rights to due process and a fair trial required a new trial
for defendant if the statement was found reliable. The
Supreme Court ruled that while Chambers held that the
federal constitution might on occasion require the
admission of evidence, otherwise inadmissible under
state evidence law, favorable to a defendant, that holding
was “intimately related” to the “facts and circumstances”
of that case. Comparing the statement herein to the
hearsay in Chambers, the Court found that it did not have
the same measure of reliability. The statement in this
case was not against the witness’ interests, was made years
after the murder, was not spontaneous but was in
response to the questions of a defense investigator, and
was immediately threatened to be disavowed by the
witness. The Court further noted that unlike the
declarant in Chambers, the declarant in this case was
unavailable for cross-examination due to her death.
Stating that the right to present relevant evidence is not
unlimited and is subject to restrictions, the Court
concluded that the exclusion of the statement did not so
prevent a fair trial for defendant as to be unconstitutional.In State v. Maben, 132 N.J. 487 (1993), the New
Jersey Supreme Court ruled that before the State may
introduce hearsay statements pursuant to Evid. R.
63(33), (now N.J.R.E. 803(c)(27)) the State must prove
that the child is “truly unavailable.” The State must
demonstrate to the trial court that it has exercised “due
diligence” in its attempt to locate a missing witness.In State v. Farquharson, 280 N.J. Super. 239 (App.
Div. 1995), certif. denied, 142 N.J. 517 (1995), the court
ordered the prosecutor to provide the defendant with the
current address of a codefendant who had absconded, or
accept a dismissal of the drug charges. According to
defendant’s counsel, his codefendant had “vehemently”
denied purchasing drugs from defendant, which the
appellate court found crucial to the defense, even though
it appears that the codefendant also pled guilty to the
offense. Finding a clear lack of good-faith diligence on the
part of the prosecutor, the court fashioned a remedy
authorized, “without question,” by its own appropriate-
ness. Id. at 247. Although the court admitted that its
power was not limitless, it nonetheless found no reason to
not reverse the conviction and force the prosecutor to find
the codefendant, based on a prosecutor’s duty to see that
justice is done, and a defendant’s right to compulsory
process. Resting on cases dealing with the State’s burden
to locate out-of-state witnesses where the State itself seeks
to use their unavailability to justify the use of hearsay, like
Maben, supra, the court justified imposing this burden
because the State had “permitted a crucial defense
witness” to leave the State, if only by inaction. Id. at 252.
The Court found that the trial court’s action, having
permitted defense counsel to give the testimony himself,
was a poor substitute. At the retrial the missing witness
was produced, but she recanted and testified for the State.
State v. Farquharson, 321 N.J. Super. 117, 119 (App. Div.
1999), certif. denied, 162 N.J. 129 (1999). The Court
was nonetheless “[o]nce again ... constrained to reverse.”
See § I.A., Impeachment through use of Prior Conviction,
supra.In State v. Dayton, 292 N.J. Super. 76 (App. Div.
1996), the Appellate Division held that the trial court
erred in not permitting defendant’s counsel to withdraw
because he was defendant’s only witness to statements
made by the alleged victim during an interview by
defense counsel.In State v. Correa, 308 N.J. Super. 480 (App. Div.
1998), the Appellate Division reversed defendant’s