93 A.3d 774
N.J. Super. Ct. App. Div.2014Background
- Pedestrian Maria Manata was struck by Francisco Pereira’s car at an intersection in Newark; only Manata and Pereira testified about how the collision occurred.
- Manata said she was in a marked crosswalk and was struck while crossing; Pereira said she darted out from between two buses in the middle of the block.
- Plaintiff’s counsel repeatedly questioned Pereira about a motor-vehicle police report (NJTR-1) that was not admitted into evidence and that did not attribute Pereira’s version to him.
- The police report’s crash diagram and text reflected the pedestrian-in-crosswalk version and omitted any statement attributed to Pereira supporting his “darting from between buses” defense.
- The jury asked during deliberations to see the police report; the court refused because it was not in evidence. The jury found Pereira solely negligent and awarded $350,000.
- Pereira appealed, arguing among other things that plaintiff’s counsel improperly impeached him by using the out-of-court police report’s substance without admitting the report into evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel may use an out-of-court police report’s contents on cross-examination to show a witness omitted a version later asserted at trial, when the report itself is not admitted | Manata argued impeachment by omission was proper: the absence of Pereira’s trial version in the police report impeached his credibility | Pereira argued the questioning improperly communicated the substance of an inadmissible police report (phantom impeachment) and denied him a fair trial | Reversed: cross-examination that relayed the substance of a police report not in evidence was improper and "clearly capable of producing an unjust result" where liability turned on credibility; new trial ordered on liability |
| Whether the police report could have been admitted as a business/public record to support impeachment or substantive use | Manata implied the report could be used to show inconsistency/omission | Pereira argued report was hearsay and not authenticated; trial court never admitted it or found it reliable | Court explained police reports can be admissible as business/public records but require proper foundation/authentication; here plaintiff did not seek admission and the record did not establish trustworthiness, so the report could not properly be relied upon without an N.J.R.E. 104 hearing |
| Whether the error was harmless given other evidence (apology, sun glare) | Manata argued other evidence supported verdict and error was harmless | Pereira argued the impeachment by omission was central and prejudicial in a case that turned on credibility | Court held error was not harmless: impeachment formed a major part of cross-examination in a close credibility contest and jury’s request to see the report reinforced prejudice |
| Remedy and instructions for remand/use of the report | Manata sought to rely on the report's impeachment value | Pereira sought new trial and exclusion of the report | Court ordered reversal and remand; if plaintiff seeks to use the report on remand, the trial court must hold an N.J.R.E. 104 hearing to determine reliability, admissibility, and appropriate use |
Key Cases Cited
- Hisenaj v. Kuehner, 194 N.J. 6 (overview of abuse-of-discretion standard for evidentiary rulings)
- State v. Silva, 131 N.J. 438 (scope of cross-examination and impeachment by omission)
- Estate of Hanges v. Metropolitan Property & Casualty Ins. Co., 202 N.J. 369 (admissibility limits of police reports and hearsay considerations)
- State v. Provet, 133 N.J. Super. 432 (recognizing impeachment by omission/prior inconsistent omissions)
- Jenkins v. Anderson, 447 U.S. 231 (common-law allowance for impeachment by failure to state a fact)
- Dalton v. Barone, 310 N.J. Super. 375 (foundational witness for police records when original preparer unavailable)
- Statham v. Bush, 253 N.J. Super. 607 (discussed in context of proper foundation for police report admission)
- State v. Martini, 131 N.J. 176 (limits on cross-exam where no evidentiary basis exists)
- State v. Rose, 112 N.J. 454 (impropriety of questioning without proof or proffer of facts)
- United States v. Sanchez, 176 F.3d 1214 ("phantom impeachment"—improper to tell jury the substance of inadmissible evidence)
- United States v. Hall, 989 F.2d 711 (same principle against communicating inadmissible evidence via questions)
- State v. Spencer, 319 N.J. Super. 284 (questioning that suggests non-introduced evidence is improper)
- Brown v. Mortimer, 100 N.J. Super. 395 (police diagram based on others’ statements can be inadmissible opinion/embedded hearsay)