Proposed State Evidence Rules Search for Truth

The New Jersey Rules of Evidence are on the brink of their first significant revision in nearly 25 years. This is good news for litigators. In June 1991, the New Jersey Supreme Court Committee on the Rules of Evidence released its proposed changes to this body of law. The committee did not, as some expected, suggest a blanket adoption of the Federal Rules of Evidence. Instead, the committee exhaustively analyzed both sets of rules, which resulted in recommendation of those federal rules that advance truth-seeking and rejection of others that add little to the pursuit of justice. The committee has wisely proposed adding Federal Rule 803(18) to the New Jersey Rules. This rule governs the use of learned treatises and does not have a state counterpart. Presently, a learned treatise, which is recognized as authoritative, may be used in cross-examination of an expert witness only to impeach his credibility. Ruth v. Fenchel, 21 N.J. 171, 176-79 (1956).

Federal Rule 803(18) would be added to the New Jersey Rules as an exception to the hearsay rule. Significantly, it would permit the impeaching portion of a treatise to be read to the jury and accepted as substantive evidence. This proposal recognizes the reality that a treatise is primarily an objective commentary whose validity is judged by a highly educated and technical audience. Consequently, the sustained hearsay objection to the substantive admissibility of such a statement is unimpressive when measured against the backdrop of accuracy regularly attributed to most treatises. This proposed rule acknowledges that the true answer to a question may not lie within the closed confines of the courtroom. To the contrary, the truth may be in the article of an accomplished expert who either resides beyond the subpoena power of the court or demands a prohibitive fee.

The federal rule also avoids the potential pitfalls of a jury instruction that expects a juror to accept the statement in a vacuum for its impeaching quality, but not for its truth. The fear that a jury may place undue credence in the word of a phantom witness is mitigated by the last sentence of the rule, which precludes the jury from physically receiving the treatise in evidence. This federal rule should be adopted. The committee also recommends that Federal Rule 803(4), dealing with the admissibility of statements made for purposes of medical diagnosis or treatment, replace its New Jersey counterpart, Rule 63(12)(b) and (c). The New Jersey rule requires the statement be made in good faith to a physician who has been specifically consulted for treatment purposes. Cestero, et al. v. Ferrara, 57 N.J. 497 (1971). The federal rule allows the statement to be made to anyone. United States v. DeNoyer, 811 F.2d. 436 (8th Cir. 1987).

Both rules are based on the inherent reliability attached to a statement made by one whose motive in speaking is to find relief. However, Rule 63(12)(b) and (c) are too narrow and fail to recognize the modern reality embraced by the federal rule. Certainly, good faith statements made by individuals hoping to receive the appropriate aid may be made to paramedics, social workers and others who are not physicians. Indeed, the immediate arrival on the scene of these individuals provides the same compulsion for truth-telling to a seriously ill or injured declarant. Moreover, this compulsion is not diminished even if spoken to an untrained ambulance driver or other individual who inspires momentary confidence sufficient to elicit a truthful statement. The committee’s proposed adoption of this federal rule is sensible. It conforms our evidence rules to contemporary times where the initial contact with an ailing party is less likely to be a physician.

Similarly, the committee’s proposal to adopt Federal Rule 1003 which generally admits the duplicate of a writing without proof of the unavailability of the original is long overdue and will facilitate the admission of documents into evidence. Currently, no writing other than the original is admissible to prove its terms if they are not material litigation. There are eight exceptions. N.J.Evid. R.70. This rule is unduly rigid. In modern day commercial activity copies of legal documents dealing with multi-million dollar transactions are routinely accorded the same reliable status by the parties as are the originals. The adoption of Federal Rule 1003 acknowledges the inherent trustworthiness of duplicates, while allowing the opponent to demand the original if its authenticity is seriously questioned. This rule permits the trial lawyer to devote more time to substantive trial preparation rather than to a potentially time consuming search for authentic original documents. Substance triumphs over form. Consequently, no longer will a wooden application of the “best evidence” rule or a recalcitrant adversary be able to demand indiscriminate production of the original.

The committee decided to keep some New Jersey rules rather than substitute their less impressive federal counterparts. This is commendable. It elevates common sense above the plea for uniformity at all costs.

New Jersey Rule 63(1)(a) permits the substantive use of any prior inconsistent statement made by a non-party witness, as long as the statement is not being offered by the party calling the witness. To the contrary, Federal Rule 801(d)(1)(A) only allows such a statement to be used as substantive evidence if it was made under oath at a trial, deposition or other similarly situated event.

Adopting the federal rule would intolerably hinder truth-finding. Highly relevant evidence going to the core of a factual dispute would be excluded as substantive evidence simply because it was not provided under penalty of perjury. For example, assume a witness to a motor vehicle accident verbally informs plaintiff, a few days after the accident, that he saw defendant drive through the stop sign without stopping. Two years later, at the time of trial, this witness is called by defendant. He is now convinced that defendant paused before heading into the intersection, and that plaintiff was speeding before he made initial contact with defendant’s vehicle.

The federal rule precludes plaintiff from introducing the witness’s prior statement for its truth even though it was made when the event was still fresh in his mind. Rather, plaintiff could only use the evidence to impeach the witness’s credibility. The jury would then be instructed to perform the mental gymnastic of ignoring the issue of the truthfulness of the statement made closer to the time of the accident. This is a perversion. Under Rule 63(1)(a), no such suppression of the quest for truth occurs. Moreover, the truthfulness of both statements is tested since the witness is subject to a rigorous cross-examination. Here, a sweeping conversion to the federal rules would have unwittingly swept aside a superior state rule.

Likewise, the committee refrained from relegating admission of a statement against interest to those cases where the declarant is unavailable as a witness. Fed.R. Evid.804(b)(3). New Jersey previously discarded the requirement of unavailability of the declarant. See State v. Barry, 86 N.J. 80, 91-92 (1981) certif.. denied, 454 U.S. 1017 (1981). Rather, the committee recommends maintaining the substance of New Jersey Rule 63(10), which permits the use of these statements regardless of the declarant’s availability as a witness.

The federal rule imposes an unwarranted restriction. A witness could testify that an unavailable declarant made a statement that potentially exposes the declarant to civil liability. Without the benefit of the declarant’s in-court testimony to refute the allegation an injustice could result. The New Jersey rule envisions the civil declarant testifying to answer any such charges and is, therefore, better able to ensure the source of the statement.

The refusal to adopt the laundry list of authentication examples contained in Federal Rule 901(b) was a sensible determination. This rule reads more like a trial techniques handbook and provides little more than an incomplete compilation of authentication methods. The rule may cause the attorney to incorrectly assume that these examples of proof are sufficient in all cases regardless of peculiar circumstances. This would be a disservice to the inexperienced or “assigned counsel” trial attorney. Its rejection is appropriate.

Uniformity Not Certain

Finally, a wholesale adoption of the Federal Rules of Evidence would not have the anticipated benefits of uniformity and predictability. A greater body of precedent does not translate into a more uniform application of the rules. Indeed, one panel of the Appellate Division could endorse an interpretation of a federal rule offered by the Wyoming Supreme Court. Another panel may find an approach taken by the Eighth Circuit to be more persuasive. Uncertainty would be the unwelcome victor. The frustrated litigator would have to wait for a definitive decision from our state Supreme Court.

Change for the sake of change is no virtue. Blind adherence to the quest for a new homogeneity should not triumph over that which is tested and better able to serve justice. The proposed rules are an amalgamation of the federal and state rules and represent the best of both worlds. They should become the 1993 New Jersey Rules of Evidence.

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