The Jersey Lawyer

Most states recognize an exception to the hearsay rule, which excludes the use of out of court statements in court to prove the truth of the matter being asserted in the statement, where intimidation was used to prevent a witness from testifying at trial.  On April 2, 2009, the New Jersey Supreme Court dealt with the issue of whether New Jersey would also recognize the so-called “forfeiture-by-wrongdoing doctrine.”  The question before the Supreme Court in State v. Byrd, was whether a witness’s hearsay statement implicating a defendant in a crime should be admissible, when through violence, intimidation, or other unlawful means, the defendant makes the witness unavailable to testify at trial.  While a majority of the Supreme Court strongly urged the legislature and the governor to adopt such a rule, after determining that no such rule currently exists in New Jersey, the Court held that the convictions of the two defendants, Dionte Byrd and Freddie Dean, Jr. should be reversed and the matter remanded for a new trial.

Byrd and Dean were indicted for various crimes related to the killing of Charles Simmons, a known drug dealer.  On the evening of August 26, 2001, Byrd, Dean, Kenneth Bush and Hassan Wilson allegedly drove to Simmons’ apartment with a plan to rob Simmons.  When they arrived at Simmons’ apartment, Dean and Byrd entered the apartment, while Bush and Wilson remained in their van.  After entering the apartment, a struggle ensued and Simmons was shot and killed by a handgun allegedly belonging to Dean.  After the incident, Dean and Byrd ran back to the van to make their getaway.  At trial, both Dean and Byrd were convicted of felony-murder, among other crimes.

During the trial, Kenneth Bush was called by the prosecution to testify against Dean and Byrd.  However, Bush refused to be sworn in and refused to testify.  At the time of the trial, Bush was serving a prison sentence at the same facility and in the same tier as Dean and Byrd.  Bush advised the prosecutors that he did not want to testify because of certain “situations” between him and the defendants.  Over the strenuous objections of defense counsel, the trial judge questioned Bush privately in his chambers outside of the presence of defense counsel.

In chambers, Bush advised the judge that the fact that he was locked up in the same place as the defendants made him fearful for his safety.  In addition, Byrd’s younger brother, who was also imprisoned in the same tier as Bush, had shown Bush a letter stating that “somebody could get at him at any time.”  Dean’s family members had also questioned Bush’s wife about whether Bush intended to testify against Dean and Byrd.  As a result of the cumulative effect of all these incidents, Bush advised the judge that he would not testify against Dean and Byrd for fear of retribution against him and his wife and son.

As a result, the Court permitted certain statements made by Bush out of court to be read at trial by the prosecution.  The first statement was made by Bush to two Trenton police detectives during an interrogation.  Bush told the detectives that on the day of the shooting, he had seen Dean carrying a nine-millimeter handgun.  When the group arrived at Simmons’ apartment, Dean and Byrd told Bush that they had to do something while Bush remained in the van.  A short while later, they came running back into the van arguing about whether Dean had shot Byrd.  According to Bush’s statement, Dean also said, “man, I put it in him.  I let off on him.”

The second statement read to the jury at trial was from a signed affidavit by Bush recanting his earlier story and stating that he was high on crack at the time he made the first statement, and that he had never seen Dean with a gun and did not know anything about the crime in question.  However, a detective with the Mercer County Prosecutor’s Office testified that Bush had told him that he had fabricated the statement made to the defense because he was “pissed off” at detectives for not giving him a fair shake in an unrelated matter.

In its analysis, the Supreme Court first recognized that the New Jersey Rules of Evidence do not contain a forfeiture-by-wrongdoing exception to the hearsay rule.  The Supreme Court then looked at the public policy considerations that favor the adoption of a forfeiture-by-wrongdoing exception.  Essentially, the exception is based on the equitable maxim that nobody should be permitted to take advantage of his own wrongdoing.  Another public policy consideration favoring the exception is the idea that it would provide a deterrent against intimidation and violence directed at witnesses by defendants.  Finally, the Court reasoned that the exception would further the primary function of the adversary process – the search for truth.  The Court then recognized that the federal courts have adopted the exception, as has every state that has considered the issue.

Under the Sixth Amendment to the United States Constitution, a defendant in a criminal prosecution has the undeniable right to confront his accusers.  The heart of the hearsay rule is that out-of-court statements should not be admitted in court because it deprives the defendant of an opportunity to confront the person making that statement by cross-examination.  Nevertheless, courts that have adopted the forfeiture-by-wrongdoing exception have reasoned that the exception does not violate the Sixth Amendment right to confrontation on equitable principles.  Essentially, if the defendant is the one that caused the witness not to be available at trial, the defendant cannot then complain that he does not have the opportunity to confront the witness.  The Court also reviewed literature suggesting that witness intimidation is a widespread problem in criminal prosecutions involving gangs and organized crime. 

As a result of its review of public policy considerations, the Supreme Court determined that New Jersey should embrace the forfeiture-by-wrongdoing doctrine.  However, the Court also recognized that in New Jersey, the adoption of evidence rules is governed by statute with the participation of all three branches of state government.  Moreover, unlike many other states and the federal government, the New Jersey Rules of Evidence do not contain a residual exception to the hearsay rule that would allow the Court to justify unilateral adoption of a hearsay exception without consulting the governor and the legislature.  Accordingly, the Supreme Court decided that it would submit the proposed exception to the hearsay rule to the Senate and General Assembly for their approval by resolution, and to the Governor for his signature.

The Court also set forth the procedures that would have to be followed should the legislature and governor approve the rule for the equitable administration of the rule.  First, the prosecution would have to make known its intention to rely on the rule as soon as reasonably practicable, as well as the identity of the declarant and the particulars of the statement that will be offered.  Second, the Court will have to hold a hearing outside of the presence of the jury, but in the presence of counsel and the defendant, to determine whether the witness was made unavailable due to the wrongdoing of the defendant.  The State will bear the burden of proving, by a preponderance of the evidence, that the witness is refusing to testify after being advised that disobeying a court order constitutes contempt of court, as a result of the defendant’s wrongdoing.  Finally, the Court will also have to determine that the statement bears some indicia of reliability. 

The Supreme Court noted that even if there had been a forfeiture-by-wrongdoing exception to the hearsay rule at the time the defendants were tried in the present case, the Court would still be compelled to reverse the convictions of defendants Byrd and Dean.  The Court first pointed out that even when Bush was brought into the trial judge’s chambers, Bush was not placed under oath.  That alone would be enough to disregard his testimony.  Furthermore, the Court elicited a number of statements by Bush during that “hearing” through leading questions.  From Bush’s unsworn and unchallenged testimony in chambers, the Court permitted prosecutors to introduce hearsay statements at trial.  Defense counsel was not given any opportunity to discredit Bush or to explore his motives for making the statements.  This procedure was wholly inadequate and violated court rules and constitutional protections.

If you have been accused of a crime in New Jersey, contact a New Jersey criminal defense lawyer for assistance.  Nace Naumoski has written several articles on criminal defense issues in New Jersey, which are available by clicking the “Criminal Defense” link under the Categories tab.