Witness Intimidation by Gangs Prompts New Hearsay Exception – State v. Byrd

This morning, the New Jersey Supreme Court proposed a change to the Rules of Evidence that would provide a new hearsay exception which is commonly referred to as “forfeiture-by-wrongdoing.” Under this exception, the out-of-court statements of a witness who does not appear to testify at trial will become admissible if it can be shown that the witness’ failure to appear was wrongfully contrived by the Defendant. This rule of law is recognized federally and is based upon the philosophy that a Defendant should not be able to profit at trial from his own wrongdoing by procuring the absence of a witness through threat, force, intimidation or otherwise.

In proposing this change to our Rules of Evidence, the Justices noted the problem of witness intimidation in cases involving the prosecution of gang members, organized crime figures, drug racketeers and the like. It is also a problem in domestic violence cases, as well. The Court concluded that a Defendant who wrongfully procures the absence of a witness against him has forfeited his right of confrontation under both the federal and state Constitutions.

Download a copy of State v. Byrd.

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