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NJ Supreme Court Subcommittee Headed by Associate Dean Rossner Urges Limiting Admissibility of Evidence of Prior Convictions

April 08, 2013 – 

A subcommittee of the New Jersey Supreme Court Committee on the Rules of Evidence has proposed amending New Jersey Rule 609 to restrict the use of evidence of convictions that are more than 10 years old unless their probative value is judged to outweigh their prejudicial effect. The full committee has endorsed the recommended changes, which would align the state rule more closely with Federal Rule of Evidence 609.

The subcommittee was chaired by Andrew L. Rossner, Rutgers School of Law–Newark Associate Dean for Professional and Skills Education and Director of the Rutgers Institute for Professional Education. “As the full Committee report reveals, the subcommittee conducted a comprehensive analysis of the two rules in the context of New Jersey practice,” said Dean Rossner. “It proposed a rule which strikes a fair balance between a defendant’s interest in testifying, a concern as to the prejudicial effect prior convictions may have upon the jury, and the truth-seeking function of trials, which includes both the desire to encourage defendants to testify and a concern that prior convictions may be important information for a jury in evaluating a witness’s testimony for truthfulness. It also preserves the function of the trial judge in making the admissibility determinations in the context of a particular case. It was an honor,” Rossner added, “to serve as chair of a subcommittee considering such an important issue.”

The subcommittee’s proposed changes arise from the New Jersey Supreme Court decision in State v. Harris, 209 N.J. 431 (2012), in which the majority determined that the trial court did not abuse its discretion in allowing two 14-year-old drug possession convictions to be admitted to impeach the credibility of the defendant if he testified. The Supreme Court rejected the defendant’s argument that New Jersey follow the federal approach, and then referred consideration of modifying the state rule to the Committee on the Rules of Evidence. 

Federal Rule of Evidence 609 treats convictions more than 10 years old differently than those less remote in time. It requires the party offering an older conviction to prove that the probative value of a conviction older than 10 years significantly outweighs its prejudicial effect, unless the crime involves dishonesty, and requires the opponent of admitting a conviction less than 10 years old to prove that its prejudicial effect outweighs its probative value. The current New Jersey Rule 609 does not contain such an express limitation on convictions older than ten years. Rather, it permits the admissibility of any prior conviction “unless excluded by the judge as remote or for other causes.”

The subcommittee’s recommendation to adopt Federal Rule 609’s practice of a presumption to admit convictions less than 10 years old and a presumption against admitting convictions that are more than 10 years old would maintain some differences that preserve New Jersey’s current principles. For example, the proposed amended rule would state that in determining the admissibility of convictions older than 10 years, the court may consider whether there are intervening convictions that may “bridge the gap” and the distinction between crimes of dishonesty versus other crimes.

The Supreme Court is seeking public comment on the Proposed Rule Change. The Committee Report and Supreme Court Notice are available at http://www.judiciary.state.nj.us/notices/2013/n130322a.pdf.

Dean Rossner teaches Antitrust, Intensive Trial Advocacy, Evidence, Evidentiary Issues at Trial, Intensive Deposition Advocacy and courses in the Institute for Professional Education. Prior to joining the law school in 2009, he served as Assistant U.S. Attorney for the District of New Jersey, and an Assistant Attorney General in the New Jersey Attorney General’s Office, including as deputy director and then acting director of the Division of Criminal Justice.