102 A.3d 1233
N.J. Super. Ct. App. Div.2014Background
- Defendant (a massage therapist) charged in New Jersey with second-degree sexual assault and fourth-degree criminal sexual contact for alleged digital penetration of E.S. during a 2012 spa massage.
- State sought to admit testimony from A.W. about an alleged, similar sexual contact during a 2006 Florida massage as N.J.R.E. 404(b) "other-crimes" evidence.
- At an N.J.R.E. 104 hearing the trial judge found A.W. credible and admitted her testimony under Cofield grounds (motive, intent, plan, absence of mistake).
- The Florida prosecution based on A.W.’s allegations ended in an acquittal; the trial judge nonetheless admitted A.W.’s testimony without giving legal effect to that acquittal.
- On interlocutory appeal the Appellate Division reversed, holding the Cofield factors were not satisfied and that evidence of a prior alleged offense of which the defendant was acquitted cannot be admitted to prove that the prior offense actually occurred.
Issues
| Issue | State's Argument | J.M.'s Argument | Held |
|---|---|---|---|
| Whether A.W.’s testimony (prior alleged Florida incident) is admissible under N.J.R.E. 404(b) (Cofield factors). | The testimony is relevant to motive, intent, plan, and absence of mistake and is admissible. | The testimony is inadmissible because it is impermissible propensity evidence and fails Cofield. | Reversed: Cofield factors not met; evidence excluded. |
| Whether acquittal in prior prosecution bars admission of the prior-incident evidence in a later prosecution to prove the prior incident occurred. | Prior case law allows use of acquittal-evidence in some circumstances; State urged admission. | Acquittal should bar relitigation of the same alleged act as proof the act occurred in a later trial. | Held: Acquittal-evidence should not be admitted to prove the prior charged offense actually occurred. |
| Whether the trial judge’s credibility finding (and clear-and-convincing gatekeeping) can overcome the prior acquittal. | The judge heard and found A.W. credible; that satisfies the clear-and-convincing Cofield prong. | A prior jury’s acquittal significantly undermines admission; judge must account for it and the full prior record. | Held: Judge abused discretion by ignoring the acquittal; clear-and-convincing standard cannot be used to resurrect an acquitted charge. |
| Whether juries should be instructed about a prior acquittal if other-crimes evidence is admitted. | Concern that disclosing acquittal opens collateral inquiries; earlier cases thought nondisclosure preferable. | Disclosure of acquittal is necessary to respect presumption of innocence and avoid unfairness. | Held: Even aside from Cofield failure, the acquittal’s significance counsels exclusion; nondisclosure is problematic. |
Key Cases Cited
- State v. Cofield, 127 N.J. 328 (N.J. 1992) (sets four-factor test for admission of other-crimes evidence under N.J.R.E. 404(b))
- State v. Carlucci, 217 N.J. 129 (N.J. 2014) (recent discussion of N.J.R.E. 404(b) principles)
- State v. P.S., 202 N.J. 232 (N.J. 2010) (requiring all Cofield factors to support admission)
- Dowling v. United States, 493 U.S. 342 (U.S. 1990) (federal treatment of prior-acquittal evidence and related concerns)
- In re Winship, 397 U.S. 358 (U.S. 1970) (proof beyond a reasonable doubt protects presumption of innocence)
- Ashe v. Swenson, 397 U.S. 436 (U.S. 1970) (scope of inquiry into prior proceedings and collateral estoppel principles)