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March 9, 2020

NJSBA urges reconsideration of Rule 608 proposed amendments

The New Jersey State Bar Association (NJSBA) has initiated efforts to cancel proposed rule amendments to the New Jersey Rules of Evidence 608. AJR129 (Mukherji) was introduced at the behest of the NJSBA following the Supreme Court’s announcement of proposed changes to Rule 608, which would expand the scope of permissible cross-examination in criminal cases. A Senate version was expected to be introduced later in the week by Senator Patrick Diegnan.

This effort has the support of a wide swath of the legal community, including prosecutors and defense attorneys. Many organizations have joined a coalition in support of the joint resolution, including the Office of the Public Defender, Trial Attorneys of New Jersey, Association of Criminal Defense Attorneys of New Jersey, County Prosecutor’s Association of New Jersey, South Asian Bar Association of New Jersey and Hispanic Bar Association of New Jersey.

The proposed amendments to Rule 608, which is slated to take effect July 1, would permit specific-act evidence of a testifying witness in a criminal case to ascertain the witness’s credibility and to determine the admissibility of that evidence during a trial. In order to determine admissibility, the trial court would hold a Rule 104 hearing during the trial, rather than consider the issue in advance of a trial, as occurs currently. The joint resolution would cancel the proposed amendments pursuant to N.J.S.A. 2A:84A-36, which permits cancellation of any such rule by joint resolution and the governor’s sign off.

The review of Rule 608 initiated from the Supreme Court’s concurring opinion in State v. Scott, 229 N.J. 469 (2017), in which the defendant’s mother, a witness in the case, was found to have lied to police on two prior occasions in order to cover for the defendant. The issue was whether questioning relative to the two prior acts went beyond the scope of permissible inquiry into the mother’s bias. The Supreme Court ruled that the evidence was not a permissible means of proving her character for truthfulness. In the concurring opinion, a recommendation was made to refer the case to the Supreme Court Committee on Evidence to consider an amendment to Rule 608. A separate opinion presented a strong argument against any amendment to Rule 608.

A seven-member subcommittee of the Supreme Court Committee on Evidence was formed to consider the opinions in Scott and make a recommendation to the full committee. An initial review failed to draw a consensus, and the committee chair directed the subcommittee to reconvene to determine whether a consensus could be attained; otherwise, the subcommittee was asked to draft majority and minority reports. Ultimately, a four-member majority of the subcommittee recommended an amendment to Rule 608, while the three-member minority did not. Upon consideration by the full Committee on Evidence, the members debated the issue heavily and voted 13 to 11 in favor of the proposed amendments to Rule 608.

The proposed rule amendments were presented at a Judicial Conference, and an opportunity to discuss the amendments and hear testimony took place at a public session last September. In addition to the NJSBA, members from Trial Attorneys of New Jersey and County Prosecutor’s Association of New Jersey testified at the Judicial Conference. The NJSBA also submitted written comments in opposition to the proposed amendments to Rule 608.

“We believe the situation presented in Scott is fact-specific and can be addressed through other, permissible means of questioning, as recognized in the Scott opinion,” said NJSBA President-Elect Kimberly Yonta. “We do not perceive the present allowable scope of cross-examination as so limiting or such an obstacle to the truth so as to warrant the expansion that is proposed.”

AJR129 is expected to be heard in the Assembly Judiciary Committee in the next couple of weeks.

This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as

amicus in appellate court matters.