Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. Appointments can be scheduled at 732-572-0500. He is author of the ABA's book "Criminal Law Forms".
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Sunday, July 31, 2016

Defendant should not be deprived of the full right to Cross-Examine the Police Officers and witnesses at Trial

        A paramount purpose of cross examination is the impeachment of the credibility of the witness." Perna v. Pirozzi, 92 N.J. 446, 456 (1983). Indeed, cross examination is generally considered the most effective means of challenging a witness's credibility. Biunno, Current N.J. Rules of Evidence, comment 6 on N.J.R.E. 607 (1998-1999) (citing State v. Silva, 131 N.J. 438, 444 (1993)). Certainly, a witness's bias may affect credibility. State v. Gorrell, 297 N.J. Super. 142, 149 (App. Div. 1996).
The NJ Supreme Court in State v Castagna 187 NJ 293 (2006) wrote:
“The Confrontation Clause of the Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. The Confrontation Clause is applicable to the states through the Fourteenth Amendment. Painter v. Texas, 380 U.S. 400, 406, 85 S. Ct. 1065, 1069, 13 L. Ed.2d 923, 927-28 (1965). Our state constitution provides the same guarantee. N.J. Const. art. I, § 10.
“The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” Maryland v. Craig, 497 U.S. 836, 845, 110 S. Ct. 3157, 3163, 111 L. Ed. 2d 666, 678 (1990). In Craig, the United States Supreme Court outlined four key elements of a defendant’s right of confrontation: physical presence; the oath; cross examination; and observation of demeanor by the trier of fact. Id. at 846, 110 S. Ct. at 3163, 111 L. Ed. 2d at 679; see also, State v. Smith, 158 N.J. 376, 385 (1999). In the present case we are concerned with cross-examination, which has been described as “the ‘greatest legal engine ever invented for the discovery of truth.’” California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 1935, 26 L. Ed.2d 489, 497 (1970) (citation omitted); see also Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110, 39 L. Ed.2d 347, 353 (1973) (explaining that “cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested”); State v. Garron, 177 N.J. 147, 169 (2003) (noting right to confrontation “among the minimum essentials of a fair trial”) (quoting Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 1045, 35 L. Ed.2d 297, 308 (1973)). “
         In State v Castagno 177 NJ 147 (2003) the Supreme Court reversed a conviction partly because of failure to fully permit cross-examination in a rape shield case.  The Supreme Court wrote:
“The Federal and New Jersey Constitutions guarantee criminal defendants “a meaningful opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146, 90 L. Ed.2d 636, 645 (1986) (internal quotation marks omitted); Budis, supra, 125 N.J. at 531 (same). “That opportunity would be an empty one if the State were permitted to exclude competent, reliable evidence bearing on . . . credibility . . . when such evidence is central to the defendant’s claim of innocence.” Crane, supra, 476 U.S. at 690, 106 S. Ct. at 2147, 90 L. Ed. 2d at 645.
In State v. Garron, 177 N.J. 147, 169 (2003) looking at the rape shield law, the court wrote: “
Stated a different way, if evidence is relevant and necessary to a fair determination of the issues, the admission of the evidence is constitutionally compelled. See, e.g., Olden v. Kentucky, 488 U.S. 227, 229-33, 109 S. Ct. 480, 482-84, 102 L. Ed.2d 513, 518-20 (1988) (holding that right of confrontation was violated by excluding cross-examination concerning rape victim’s cohabitation with defendant’s half-brother that was “crucial” to consent defense to demonstrate victim’s motive to fabricate); Rock v. Arkansas, 483 U.S. 44, 52, 62, 107 S. Ct. 2704, 2709, 2714, 97 L. Ed.2d 37, 46, 52-53 (1987) (holding that right of compulsory process was violated by excluding manslaughter defendant’s hypnotically-refreshed testimony concerning circumstances of shooting husband that was “material and favorable” to defense that gun accidentally discharged); Crane, supra, 476 U.S. at 690-91, 106 S. Ct. at 2146-47, 90 L. Ed 2d at 645 (holding that fair trial required admission of testimony that was “central” to defense concerning reliability of sixteen-year-old’s confession to murder); Chambers, supra, 410 U.S. at 294-303, 93 S. Ct. at 1045-49, 35 L. Ed. 2d at 308-13 (holding that rights of confrontation and compulsory process were violated by excluding cross-examination and direct testimony concerning third party’s oral and written confessions to murder that was “critical” to defense of third-party guilt); Washington v. Texas, 388 U.S. 14, 16, 23, 87 S. Ct. 1920, 1921-22, 1925, 18 L. Ed.2d 1019, 1021, 1025 (1967) (holding that right of compulsory process was violated by excluding co-defendant’s testimony concerning circumstances of shooting that was “vital” to defense that co-defendant fired fatal shot).”
A criminal defendant has the right “to be confronted with the witnesses against him” and “to have compulsory process for obtaining witnesses in his favor.” U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. The rights to confront, cross-examine, and produce witnesses have been aptly characterized as “opposite sides of the same coin,” because each confers the same fundamental right to elicit testimony favorable to the defense before the trier of fact. David Guy Hanson, Note, Judicial Discretion in Sexual Assault Cases after State v. Pulizzano: The Wisconsin Supreme Court Giveth, Can the Wisconsin Legislature Taketh Away?, 1 992 Wis. L. Rev. 785, 789 (citing Peter Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv. L. Rev. 567, 601-06 (1978)). See also Janet C. Hoeffel, The Sixth Amendment’s Lost Clause: Unearthing Compulsory Process, 2 002 Wis. L. Rev. 1275, 1307 (construing rights to confrontation and compulsory process as “sister clauses” which together “make the presentation of a defense at trial complete”).
 Each has long been recognized as essential to the due process right to a “fair opportunity to defend against the State’s accusations,” and thus “among the minimum essentials of a fair trial.” Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 1045, 35 L. Ed.2d 297, 308 (1973).
          In the seminal case of Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed.2d 347 (1974), the United States Supreme Court determined that a state’s procedural rule and statute protecting the privacy of a juvenile’s delinquency record had to give way to the superior claim of the Federal Confrontation Clause. In Davis, the State’s key witness was serving a probationary term for a delinquency adjudication at the time he cooperated with the prosecution and gave testimony implicating the defendant in a burglary. The defense sought to cross-examine the witness on the basis of bias, arguing that because of the witness’s vulnerable status as a probationer, he had reason to curry favor with the State. Relying on the state’s provisions protecting the confidentiality of a juvenile adjudication, the trial court barred the defense from eliciting on cross-examination the witness’s probationary status.
While recognizing the privacy interests at stake, the US Supreme Court in Davis concluded that “[t]he State’s policy interest in protecting the confidentiality of a juvenile offender’s record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness.” Id. at 320, 94 S. Ct. at 1112, 39 L. Ed. 2d at 356. In reversing the conviction, the Court found that any embarrassment or blemish to the reputation of the juvenile “must fall before the right of [the defendant] to seek out the truth in the process of defending himself.” Ibid.
In 2016, the NJ Supreme Court in State v. Bass __ NJ ___ (2016)  (A-118-13) determined the limitation on defendant’s cross-examination of Sinclair constituted reversible error. Defendant is entitled to a new trial on the charges of murder, attempted murder and the possession of a weapon for an unlawful purpose. In addition, the substitute expert read portions of the deceased medical examiner’s autopsy report to the jury, rather than testifying based on his own observations and conclusions, which violated defendant’s confrontation rights. On retrial, any expert testimony by a substitute medical examiner should conform to State v. Michaels, 219 N.J. 1, cert. denied, 135 S. Ct. 761, (2014), and State v. Roach, 219 N.J. 58 (2014), cert. denied, 135 S. Ct. 2348 (2015). Defendant was not entitled to an instruction on the use of force against an intruder because he voluntarily admitted the victims to his room.

PATTERSON, J., writing for a unanimous Court held: The trial court’s constraints on defendant’s cross-examination of Sinclair implicate defendant’s right “to be confronted with the witnesses against him,” guaranteed by the Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution. U.S. Const. amend. VI; N.J. Const. art. 1, ¶ 10. The Confrontation Clause permits a defendant to explore, in cross-examination, a prosecution witness’s alleged bias. As the United States Supreme Court has observed, “the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674, 683 (1986) (citations omitted).

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