State v. Hawthorne ( 1967 )

Jacobs, J.

(concurring in result). In Stoelting v. Hauck, 32 N. J. 87, 103 (1960), Justice Proctor pointed to the historic discretion of trial judges “to exclude remotely relevant evidence whose probative value is offset by the danger of undue prejudice.” See also DiNizio v. Burzynski, 81 N. J. Super. 267, 274 (App. Div. 1963) ; Wimberly v. Paterson, 75 N. J. Super. 584, 608 (App. Div.), certif. denied 38 N. J. 340 (1962) ; Miller v. Trans Oil Co., 33 N. J. Super. 53, 59 (App. Div. 1954), affirmed 18 N. J. 407 (1955). The danger is most apparent when dealing with evidence of independent past criminality, for such evidence may well overwhelm the controverted issue of present guilt or innocence and the court’s limiting instructions may well be viewed with skepticism. See State v. Young, 46 N. J. 152, 157 (1965); Note, “The Limiting Instruction—Its Effectiveness and Effect,” 51 Minn. L. Rev. 264 (1966); Note, “Other Crimes Evidence at Trial: Of Balancing and Other Matters,” 70 Yale L. J. 763 (1961); see also United States ex rel. Scoleri v. Banmiller, 310 F. 2d 720, 725 (3 Cir. 1962), certiorari denied Banmiller v. Scoleri, 374 U. S. 828, 10 L. Ed. 2d 1051 (1963) ; Pinkney v. United States, 124 U. S. App. D. C. 209, 363 F. 2d 696 (D. C. Cir. 1966).

The practice of admitting prior convictions for the stated purpose of affecting credibility has been persuasively criticized elsewhere. See McCormick, Evidence 93-94 (1954); 70 Yale L. J., supra, at pp. 774-778; Note, “Procedural Protections of the Criminal Defendant,” 78 Harv. L. Rev. 426, 441 (1964); cf. State v. Holley, 34 N. J. 9, 14, certiorari denied 368 U. S. 854, 82 S. Ct. 89, 7 L. Ed. 2d 51 (1961); State v. Brown, 41 N. J. 590, 591-592, certiorari denied 377 U. S. 981, 84 S. Ct. 1888, 12 L. Ed. 2d 749 (1964). In our own State the subject has been dealt with by statute which, constitutional issues aside, must of course be given recognition. See N. J. S. 2A:81-12. But the statute does not purport to withdraw the traditional discretionary power of the judiciary to exclude remote and unduly prejudicial evidence and until today no court in our State has ever said that it has such effect. It appears to me that the majority construction unwisely places shackles on our trial judges in their conscientious efforts to insure fair trial and do justice and is not dictated either by the statutory language or its history. See Luck v. United States, 121 U. S. App. D. C. 151, 348 F. 2d 763, 767-768 (D. C. Cir. 1965) ; Pedorella v. Hoffman, 91 R. I. 487, 165 A. 2d 721, 724 (1960); see also McCormick, supra, at p. 91 where it is noted that while a pardon does not prevent the use of the conviction to impeach, “most courts hold that lapse of time may have this effect, and that a conviction too remote in time may be excluded by the judge if in his discretion he finds that under the circumstances it lacks probative value.”

Both sections 1 and 3 of the 1874 revision may appropriately be referred to here. Revision 1709-1877, p. 378. Section 3 provided that no person shall be disqualified as a witness by reason of his interest as a party or otherwise, but such interest “may be shown” for the purpose of “affecting his or her credit.” See L. 1859, c. 166. This section has been applied by trial courts (Platner v. Ryan, Ex’r, 76 N. J. L. 239, 241 (Sup. Ct. 1908)) but with continuing recognition of their discretionary powers. See State v. Quinlan, 86 N. J. L. 120, 131 (Sup. Ct. 1914), affirmed 87 N. J. L. 333 (E. & A. 1915); DeVicenzo v. John Sommer Faucet Co., 87 N. J. L. 645, 647 (E. & A. 1915). Section 1 (N. J. S. 2A:81-12) provided that no person shall be excluded as a witness by reason of his having been convicted of crime but such conviction “may be shown” on cross examination for the purpose of “affecting his credit.” This permissive language is similar to that contained in section 3 and should receive similar judicial treatment. See Pedorella v. Hoffman, supra, where the Rhode Island statute, comparable to ours, was held by the Rhode Island Supreme Court to leave the matter of remoteness “to the sound discretion of the trial justice subject to be reviewed by this court only for abuse of such discretion.” 165 A. 2d, at p. 724.

In Luck v. United, States, supra, the court flatty rejected the Government's contention that Section 305 of the District of Columbia Code, comparable to our statute, left no discretion to exclude evidence of a remote conviction; in the course of its opinion the Court of Appeals said:

“Section 305 is not written in mandatory terms. It says, in effect, that the conviction ‘may,’ as opposed to ‘shall,’ be admitted; and we think the choice of words in this instance is significant. The trial court is not required to allow impeachment by prior conviction every time a defendant takes the stand in his own defense. The statute, in our view, leaves room for the operation of a sound judicial discretion to play upon the circumstances as they unfold in a particular case. There may well be cases where the trial judge might think that the cause of truth would be helped more by letting the jury hear the defendant’s story than by the defendant’s foregoing that opportunity because of the fear of prejudice founded upon a prior conviction. There may well be other cases where the trial judge believes the prejudicial effect of impeachment far outweighs the probative relevance of the prior conviction to the issue of credibility. This last is, of course, a standard which trial judges apply every day in other contexts; and we think it has both utility and applicability in this field.” 348 F. 2d, at pp. 767-768.

See Barnes v. United States, 124 U. S. App. D. C. 318, 365 F. 2d 509, 510, n. 1 (D. C. Cir. 1966); Smith v. United States, 123 U. S. App. D. C. 259, 359 F. 2d 243, 245 (D. C. Cir. 1966).

It seems unlikely that when the Legislature enacted the 1874 revision it had any notion at all of restricting the court’s discretionary powers on matters of remoteness and the like. Surely its language contains no such intimation nor does its adoption of unrelated statutes such as N. J. S. 2A:164-28 which deals solely with the expungement of criminal records. It may be, as has been suggested, that while many criminal convictions have been admitted to attack credibility, this is the first instance where remoteness was raised by counsel or ruled upon at the trial level. See State v. Hawthorne, 90 N. J. Super. 545 (Essex Cty. Ct. 1966). But that sheds little light and merely serves to illustrate the greater present-day solicitude for the individual and his right to a trial which is fair and impartial. Cf. State v. Young, supra, 46 N. J. 152; State v. Green, 46 N. J. 192 (1965); State v. Jackson, 43 N. J. 148 (1964). That solicitude should be encouraged rather than discouraged and, if the interests of justice are to be truly served by the trial judge, room must be left “for the operation of a sound judicial discretion to play upon the circumstances as they unfold in a particular case.” Luck v. United States, supra, 348 F. 2d, at p. 768.

Though all of the above leads me to dissent from Part I of the majority opinion, I subscribe generally to the procedural discussion in Part II and to the narrow holding that the lower court should not have suppressed the evidence before trial on the showing made before it. I therefore join in the reversal and remand.

Justice Schettino agrees with the views expressed in this opinion.

Jacobs and Schettino, JJ., concur in result.

For reversal and remandment—Chief Justice Weintkaub and Justices Jacobs, Ekancis, Pkoctok, Hall, Schettino and Haneman—7.

For affirmance—Hone.