Lead Opinion
delivered the opinion of the Court.
In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354,
In Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266,
In this juvenile delinquency case, we must determine whether statements made by a non-testifying witness to a police officer, describing a robbery committed ten minutes earlier and his pursuit of the robbers, were admitted in violation of our state hearsay rules and the Sixth Amendment’s Confrontation Clause. The statements were a narrative of past events and made while neither the declarant nor victim was in imminent danger. In light of Crawford and Davis, we now hold that those hearsay statements were testimonial. Because the declarant was not produced as a witness or ever subject to cross-examination, the admission of those statements violated the juvenile’s Sixth Amendment right to confront the witnesses against him.
I.
A.
J.A. was charged in a complaint with an act of juvenile delinquency, which if committed by an adult would constitute a second-degree robbery under N.J.S.A. 2C:15-1. These are the facts presented at trial before a Family Part judge.
On February 10, 2005, at approximately 9:30 p.m., Juana Chavez, a fifty-two-year-old cable worker and part-time student, had completed class and was walking to her home in Paterson. While on 31st Street heading toward 20th Avenue, fourteen-year-old H.A. grabbed Chavez’s shoulder from behind and attempted to wrest her purse from her. She resisted, clinging to her purse, and was thrown to the ground. With Chavez lying prone, half on
After Chavez picked herself up, she walked a short distance to the corner of 31st Street and 20th Avenue where three girls came to her assistance, one offering her cell phone so that Chavez could call the police. Because of the difficulty she has speaking English, Chavez decided to call her son, who told her to wait at that location until he arrived. Within ten minutes, however, the girls waved down a police officer and explained to him that Chavez had been the victim of a robbery. Chavez gave Officer Frank Belton a description of the person who pushed her to the ground and took her purse.
Meanwhile, at 9:31 p.m., while on patrol, Officer Frank Semmel received a dispatch from headquarters to respond to the area of 20th Avenue and East 31st Street. On arriving at the scene, Officer Semmel observed that a police unit was already tending to the robbery victim. He then began patrolling the area in search of the perpetrator(s). Another dispatch received by Officer Sem-mel gave a description of one suspect and advised that “a witness to the crime” was following two suspects. Within approximately two minutes of receiving that last dispatch, Officer Semmel arrived at Public School 30, “[ajbout a block and a half to two blocks” from the robbery scene,
Over his police radio, Officer Semmel transmitted the direction in which the suspects were last seen walking and resumed his patrol. Halfway between 20th and 21st Avenues, Officer Semmel and another Paterson police officer stopped two Hispanic fourteen-year-olds who were wearing the clothing described by the witness. H.A. and J.A. were detained as “possible suspects in a robbery,” handcuffed, placed in the back of Officer Semmel’s patrol car, and brought to the robbery scene, where Chavez was waiting.
Officer Semmel then read H.A. his Miranda
Chavez testified that, at the time of the robbery, “she didn’t even have $20” on her. Officer Semmel, however, recalled that Chavez told him that she had eighteen dollars in her purse. His search of H.A., he stated, uncovered twelve dollars. In contrast, Officer Belton testified that he searched both H.A. and J.A., finding on H.A. six dollars and on J.A. twelve dollars. The money found on the two suspects was put into Chavez’s purse before it was returned to her.
J.A. did not testify or call any witnesses in his defense.
Relying in large part on the statements made by the non-testifying eyewitness, the family court judge, sitting as the trier of fact, found J.A. guilty of second-degree robbery as an accomplice to H.A. and therefore entered an adjudication of delinquency. J.A. was committed to a two-year term at the State Home for Boys.
B.
The Appellate Division affirmed J.A.’s adjudication of delinquency, finding that the family court properly admitted the non-appearing eyewitness’s out-of-court statements through Officer Semmel’s testimony. State ex rel. J.A., 385 N.J.Super. 544, 550,
The panel also held that the introduction of those hearsay statements did not violate J.A.’s Sixth Amendment right to confront the witnesses against him. Id. at 558,
Applying a totality of the circumstances approach, the panel found that the witness’s statements in the case were nontestimonial because an “objective witness” would not have reasonably believed that those statements “would be available for use in a later trial.” Id. at 557-58,
We granted J.A.’s petition for certification. 191 N.J. 317,
II.
J.A. submits that the non-testifying eyewitness’s statements to the police, purportedly describing J.A.’s involvement in the robbery of Juana Chavez, were inadmissible hearsay introduced in violation of our evidence rules and the principles enunciated in Crawford and Davis. First, J.A. asserts that the non-appearing eyewitness did not speak to Officer Semmel until fifteen to twenty minutes after observing the robbery. Because of the lack of contemporaneity between the witness’s observations and his recounting of the events, J.A. argues that the present sense impression exception to the hearsay rule does not apply. He also maintains that because the trial record contains no evidence that the witness, as he spoke to Officer Semmel, was “under the stress of excitement caused” by what he had seen earlier, the excited utterance exception to the hearsay rule is not applicable. Additionally, J.A. contends that the State did not satisfy a requirement under both hearsay rule showing that the witness did not have the “opportunity to deliberate or fabricate.”
Concerning his Confrontation Clause claim, J.A. submits that the absent eyewitness’s statements to Officer Semmel were “testi
The ACDL submits that the “core significance of Crawford ” is that the Confrontation Clause forbids the prosecution from using a non-testifying witness’s statement to law enforcement officers about a completed by convict a defendant. The ACDL posits that once a crime is completed, an emergency can no longer be ongoing, and therefore a statement concerning a completed crime must be testimonial. Based on that premise, the ACDL would classify a statement made to a law enforcement officer responding to a crime scene as testimonial, “unless there is an ongoing emergency and the statement is limited to the resolution of that emergency.”
On the other hand, the State contends that the Appellate Division properly characterized the witness’s statements as present sense impressions and excited utterances because the witness related to a police officer a “startling robbery and its perpetrators’ after” observing the events and without time to deliberate or fabricate. Moreover, because “[t]he exclusive purpose of the witness’s brief, spontaneous communications was to assist the police with the emergency, not to provide a narrative of the crime,” the State argues that the statements were nontestimonial and therefore in compliance with the United States Supreme Court’s recent Confrontation Clause jurisprudence. The
Consonant with that viewpoint, the New Jersey Attorney General states that admissible, nontestimonial hearsay includes information provided to the police for the purpose of apprehending violent offenders who are in flight fi*om the commission of a crime. Thus, in this case, without contravening the Confrontation Clause, the non-testifying witness imparted “crucial information” necessary to resolve an ongoing prompt capture of two fleeing suspects. The Attorney General would not limit an “‘ongoing emergency’ ... to the rendering of immediate aid to a crime victim.”
In deciding whether the family court correctly admitted the non-testifying witness’s statements to Officer Semmel, we first address whether those statements fall within either the present sense impression or excited utterance exceptions to the hearsay rule and, then, whether those statements were nontestimonial under Crawford and Davis and pass muster under the Confrontation Clause.
III.
A.
“Hearsay is ‘a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.’ ” State v. Branch, 182 N.J. 338, 357,
Although the witness called police headquarters and, presumably, was relating to the dispatcher events as they were unfolding, the dispatcher was not called as a witness. Such statements made to the dispatcher would have fit within the classic definition of a present sense impression. The witness’s account to Officer Sem-mel, however, was given minutes after the witness cut short his chase of the juvenile suspects, and approximately ten minutes after the robbery. Thus, the statements to Officer Semmel were not “made while ... the declarant was perceiving the event.” N.J.R.E. 803(c)(1).
The only true issue is whether the statements were made “immediately after” the witness perceived the the robbery. Ibid. It is the witness’s identification of J.A. as one of Chavez’s robbers that was key to the prosecution’s case— without that critical fact, the witness would have been following two random individuals through the streets of Paterson.
No reported New Jersey case has interpreted the meaning of “immediately after” as contained in N.J.R.E. 803(c)(1). That language was added to the current rule in 1991 when our evidence rules were renumbered to conform to the formatting of the federal rules.
We interpret an evidence rule, as we would a statute, by first looking at its plain language. See United States v. Am. Tel. & Tel. Co., 498 F.Supp. 353, 356-58 (D.D.C.1980) (using plain meaning of federal rule in making evidentiary ruling); see also State v. Brown, 170 N.J. 138, 177-80,
Clearly, “in many, if not most, instances precise contemporaneity is not possible, and hence a slight lapse [in time] is allowable.” Fed.R.Evid. 803(c) advisory committee’s note. That simple explanation undoubtedly was the rationale behind the 1991 amendment to N.J.R.E. 803(c)(1). In discussing the import of the words “immediately thereafter” as they appear in Fed.R.Evid. 803(1), the authors of a treatise on evidence explain:
The phrase “immediately thereafter” accommodates the human realities that the condition or event may happen so fast that the words do not quite keep pace, and proving a true match of words and events may be impossible for ordinary witnesses, so it would be foolish to require a statement to be truly simultaneous with the event or condition. The exception allows enough flexibility to reach statements made a moment after the fact, where a small delay or “slight lapse” ... is not enough to allow reflection, which would raise doubts about trustworthiness.
More significant measured in minutes or hours ... bar resort to [Fed.R.Evid.] 803(1) because they do permit time for reflection and lessen or remove the assurance of trustworthiness.
[4 Christopher B. Mueller and Laird C. Kirkpatrick, Federal Evidence § 434, at 384-86 (2d ed.1994), quoted in Moe v. State,123 P.3d 148 , 152 (Wyo.2005), cert. denied, 547 U.S. 1046, 126 S.Ct. 1633, 164 L.Ed.2d 345 (2006).]
When considering whether a statement is a present sense impression, it is not hairsplitting to recognize a distinction between a matter of seconds, however many they may be, and an interval of as much as ten minutes separating a recollection from the observation. For purposes of a present sense impression, a declarant’s statement that “the blue sports car is going through the red light” or that “the blue sports car just went through the red light” (seconds ago) is different from a declarant’s statement that “the blue sports ear went through the red light ten minutes ago.”
We recognize, however, that a statement inadmissible as a present sense impression may qualify as an excited utterance.
B.
N.J.R.E. 803(c)(2) defines an excited utterance as 1) “[a] statement relating to a startling event or condition”; 2) “made while the declarant was under the stress of excitement caused by the event or condition”; and 3) “without opportunity to deliberate or fabricate.” See Branch, supra, 182 N.J. at 365,
We agree with the Appellate Division that the robbery of a woman who is knocked to the ground and whose purse is wrested from her as she cries out is clearly a “startling event” under N.J.R.E. 803(c)(2), and that the witness’s statement related to that event. See J.A., supra, 385 N.J.Super. at 553-54,
Because Officer Semmel did not testify to the witness’s appearance or condition, such as whether he was in an anxious or calm state when relating the events, the question of whether “the declarant was under the stress of excitement caused by” the robbery and pursuit, N.J.R.E. 803(c)(2), is more difficult to answer. The Appellate Division found that it was “clear[ ]” that “the declarant’s excited state was continuing.” J.A., supra, 385 N.J.Super. at 554,
TV.
A
The Sixth Amendment provides that in a criminal prosecution, the accused has the right “to be confronted with the wit
In Crawford, the United States Supreme Court caused a seismic shift in modem Confrontation Clause jurisprudence by interpreting the Clause in light of its historical roots rather than the recent trend to allow the introduction of types of hearsay that would have been forbidden in the early days of the Republic. “[T]he principal evil at which the Confrontation Clause was directed,” the Court reminds us, “was the ... use of ex parte examinations as evidence against the accused.” Crawford, supra, 541 U.S. at 50, 124 S.Ct. at 1363,
Thus, the Sixth Amendment requires that the admission of testimonial hearsay evidence be conditioned on the “unavailability [of the witness] and a prior opportunity for cross-examination” of that witness. Id. at 68, 124 S.Ct. at 1374,
In Crawford, the prosecution admitted at trial a statement incriminating the defendant elicited from his wife during a police interrogation concerning his alleged assault of another man. Id. at 38-40, 124 S.Ct. at 1356-58, 158 L.Ed.2d at 184-85. The defendant never had the opportunity to cross-examine her. Ibid. The wife’s statement to the police was testimonial because it was “a solemn declaration” to a law enforcement officer “for the purpose of establishing or proving some fact.” Id. at 51, 124 S.Ct. at 1364, 158 at 192 (quotation omitted). The admission of that hearsay statement therefore violated the Confrontation Clause. Although, as noted earlier, the Supreme Court declared that testimonial evidence includes statements derived from police interrogation, it left “for another day any effort to spell out a comprehensive definition of ‘testimonial.’ ” Id. at 68, 124 S.Ct. at 1374, 158 L.Ed.2d at 203.
In Davis, supra, during the course of a 911 call, a woman told the dispatcher that she was being beaten by her husband and then, a short while later, that he was fleeing from her house. 547 U.S. at 817-18, 126 at 2270-71,
In Hammon, police officers responded to a report of a domestic disturbance at a home. Id. at 819, 126 S.Ct. at 2272, 165 L.Ed.2d at 235. They found a woman on the porch in a “somewhat frightened” state and a broken heating furnace emitting flames inside the home. Ibid. The police ensured that the woman remained separated from her husband, who was in the kitchen. Id. at 819-20, 126 S.Ct. at 2272, 165 L.Ed.2d at 235. At the scene, both orally and in a handwritten affidavit, the woman described how her husband had assaulted her and her daughter and vandalized her house and van. Id. at 819-21, 126 S.Ct. at 2272-73,
For the purpose of deciding whether the hearsay statements to the police in Davis and Hammon were admitted in violation of the Confrontation Clause, the Supreme Court articulated a standard that distinguished between nontestimonial and testimonial statements. Nontestimonial statements are those “made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” Id. at 822, 126 S.Ct. at 2273, 165 L.Ed.2d at 237. Testimonial statements are those made in “circumstances objectively indicat[ing] that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Id. at 822, 126 S.Ct. at 2273-74, 165 L.Ed.2d at 237.
Although the Court set forth that standard to deal with police interrogations, it emphatically noted that it did not intend to imply that “statements made in the absence of any interrogation are necessarily nontestimonial.” Id. at 822 n. 1, 126 at 2274 n. 1,
In Davis, the Supreme Court concluded that the statements made by the domestic violence victim to the 911 operator, identifying her husband as her assailant, were nontestimonial. Id. at 827-28, 126 S.Ct. at 2276-77,
Because the victim’s 911 statements were not “testimony” in the Sixth Amendment account of a past rather a cry for help “to enable police assistance to meet an ongoing emergency,” id. at 828, 126 S.Ct. at 2277,
In Hammon, on the other hand, the Court held that the oral report and affidavit provided by the domestic abuse victim to the police who responded to her home were testimonial and barred by the Sixth Amendment. Id. at 829-32, 126 S.Ct. at 2278-80, 165 L.Ed.2d at 242-43. Unlike in Davis, in Hammon the police questioned the victim about “possibly criminal past conduct.” Id. at 829, 126 S.Ct. at 2278, 165 L.Ed.2d at 242. “[T]here was no immediate threat” to the victim in emergency in the police had separated the abusive husband from his wife. Id. at 829-30, 126 S.Ct. at 2278,
The Court in Hammon concluded that the interrogation satisfied the formality requirements for a testimonial statement, noting
B.
We now apply the principles developed in Crawford and Davis to the facts before us. Nothing in the record suggests that the witness, who refused to come to court, was ever subpoenaed to appear at trial. Therefore, it is questionable whether the witness was truly unavailable for Confrontation Clause purposes. See N.J.R.E. 804(a)(2) (stating that witness is unavailable if he “persists in refusing to testify concerning the subject matter of the statement despite an order of the court to do so”). We need not decide that issue, however, because we find that defendant did not have a prior opportunity to cross-examine the non-appearing witness whose statements were clearly testimonial.
The witness to the robbery of Juana Chavez provided information to Officer Semmel approximately ten minutes after the completion of that crime. The declarant followed Chavez’s assailants
Like in Hammon, the non-testifying witness here told the police officer “what [had] happened.” Id. at 830, 126 S.Ct. at 2278, 165 L.Ed.2d at 242. There was no ongoing immediate either the witness or the victim, both of whom were in the company of police officers at the time of the “interrogation” at Public School 30. We disagree with the State and Attorney General’s argument that we should interpret “ongoing emergency,” for Confrontation Clause purposes, in a way that would allow the use of testimonial hearsay narrating a past crime so long as the suspects are at large, even when neither the declarant nor victim is in danger. Such an expansive definition was implicitly rejected by the Davis Court. Indeed, in Davis, after the abusive husband fled his home, ending the immediate emergency, the Court declared that “[i]t could readily be maintained” that the wife’s continuing remarks to the 911 operator were testimonial statements. Id. at 828-29, 126 S.Ct. at 2277, 165 L.Ed.2d at 241.
Our reading of Davis leads us to conclude that a declarant’s narrative to a law enforcement officer about a crime, which once completed has ended any “imminent danger” to the declarant or some other identifiable person, is testimonial. See id. at 827-28, 830, 126 S.Ct. at 2276-78, 165 L.Ed.2d at 240-42 (noting that victim in Davis was facing “a bona fide physical threat” while on
Additionally, the witness’s statements to Officer Semmel in the parking lot of Public School 30 met the formality and solemnity requirements of Crawford. It is a crime to knowingly “give[ ] ...
Moreover, the non-testifying eyewitness in this case was “bearing witness” against J.A.
In the circumstances of this case, we have little difficulty concluding that the non-appearing eyewitness’s statements were testimonial. When objectively viewed, the facts indicate that there was no “ongoing emergency” within the contemplation of Davis, and that “the primary purpose of [Semmel’s] interrogation [was] to establish or prove past events potentially relevant to [a] later criminal prosecution.” Id. at 822, 126 S.Ct. at 2273-74,
Accordingly, we hold that the admission of Officer Sem-mel’s testimony relating the testimonial statements of the non-appearing eyewitness violated defendant’s Sixth Amendment right to confront the witnesses against him. Without the non-testifying witness’s account and description of J.A, it is unlikely that a successful prosecution could have been mounted against him. For that reason, we cannot say that the admission of the testimonial hearsay was harmless beyond a reasonable doubt. See R. 2:10-2; Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828,
It deserves mentioning that the Confrontation Clause only pertains to the use of ex parte testimonial statements at trial. As the United States Supreme Court reminds us in Davis, the Confrontation Clause in no way governs or impedes the manner in which law enforcement conducts investigations, gathers evidence, or arrests suspects at large. The Confrontation Clause only requires that a witness who bears testimony against the accused be present at trial and subject to cross-examination, and if the witness is unavailable, that the accused have been given the prior opportunity of cross-examination.
V.
In summary, we conclude that the non-appearing eyewitness’s statements to Officer Semmel about the robbery were testimonial. Because there was no proof of the eyewitness’s unavailability and J.A. did not have the opportunity to cross-examine him, those statements were admitted in violation of his Sixth Amendment right to confront the witnesses against him. We therefore reverse
Notes
Officer Semmel testified that the school was located as "20th and East 21." However, the Paterson School District's website lists Public School 30 at being located at 851 E. 28th St., three blocks from the robbery scene. http://www. paterson.k12.nj.usfschools.html (last visited Apr. 28, 2008).
The court rejected, without elaboration, the excited utterance exception as a justification for the admission of the witness’s out-of-court statements.
The State explained that the witness refused to come to court, despite its efforts to obtain his appearance. The State did not assert that a subpoena had been issued to the witness.
In contrast to Officer Semmel's testimony, Officer Belton testified that the suspects arrived at the scene in separate patrol units.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,
Immediately before the commencement of J.A.’s trial, also had been charged with a juvenile offense, which if committed by an adult would constitute a second-degree guilty to the downgraded offense of third-degree theft from a person, N.J.S.A. 2C:20-3. Based on H.A.’s admitted act of delinquency, the judge imposed a twenty-month probationary period and fifty hours of community service.
The Appellate Division rendered its decision one month before the release of Davis, which addressed in greater detail the defining characteristics of a testimonial statement under Crawford.
Fed.R.Evid. 803(1) provides that a present sense impression is "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.”
Our dissenting colleague would have us decide the evidentiary issue despite the inadequate factual record. We decline to do so. In contrast, we have an ample record to decide the constitutional issue before us, which will conclusively dispose of this appeal. See Resnick v. E. Brunswick Twp. Bd. of Educ., 77 N.J. 88, 95 n. 4, 389 944 (1978). The interests of justice and judicial economy command this approach. See ibid.; cf. Busik v. Levine, 63 U.J. 351, 363-64,
The U.S. Supreme Court consolidated those cases. They are cited together as Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266,
The Court noted, however, that nontestimonial statements elicited during an "interrogation to determine the need for emergency assistance” can, once the emergency has dissipated, "evolve into testimonial statements." Davis, supra, 547 U.S. at 828, 126 S.Ct. at 2277,
Significantly, the Court noted that "[t]he solemnity of even an oral declaration of relevant past fact to an investigating officer is well enough established by the severe consequences that can attend a deliberate falsehood." Davis, supra, 547 U.S. at 826, 126 S.Ct. at 2276, 165 L.Ed.2d at 240.
Had the prosecution introduced the contemporaneous statements of the eyewitness to the 911 operator, assuming that he was relating the robbery in progress and pursuit, the Confrontation Clause analysis might well have been different.
The record in this case does not involve flight with a weapon that might present an ongoing emergency. Some courts have held that after a shooting or an offense involving a gun, the immediate threat of the armed suspect returning to the scene constitutes an ongoing emergency. See United States v. Arnold, 486 F.3d 177, 179-80, 189-92 (6th Cir.2007) (en banc) (finding that victim’s statements to officers about an earlier threat to kill her were nontestimonial because defendant was armed and in vicinity), cert. denied, — U.S.-, 128 S.Ct. 871, 169 L.Ed.2d 736 (2008); State v. Ayer, 154 N.H. 500,
Even the assistant prosecutor in summation characterized the absent eyewitness as having "testified that he saw the two individuals knock [Chavez] down and run with her purse.” (Emphasis added).
As noted earlier, it makes no difference whether Officer Semmel initiated the questioning or the witness volunteered the information. The statements are
Dissenting Opinion
dissenting.
After Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354,
If, however, the trial court determines that the proffered statement is hearsay, it must then ascertain whether that hearsay statement is nevertheless admissible under the Evidence Rules before engaging in a Crawford /Confrontation Clause constitutional analysis. That is because “[w]here testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of ‘reliability.’ ” Id. at 61, 124 S.Ct. at 1370,
That hierarchical analytical that requires that the non-constitutional issue be addressed first before any constitutional question is so firmly embedded in our jurisprudence that we often dispense with any citation to its authority. See, e.g., State v. Branch, 182 N.J. 338, 354,
Today, the majority abandons those bedrock principles in favor of expediency. Although the majority first addresses whether the hearsay statements are admissible, it inexplicably comes to no conclusion on that issue.
That unstructured analysis constitutes a dangerous and headlong rush to reach a constitutional question when that question need not be addressed. If the majority is unwilling or unable to determine that the admission of the challenged hearsay statements was proper on any ground,, then its obligation is clear: it should reverse on that basis and ignore the seductive call of the constitutional claim. On the other hand, if the majority believes that the hearsay statements in fact were admissible, then it should display the courage of its conviction and state that conclusion. Only then would it become necessary to address the constitutional question.
The majority does neither. By its indecision, it relegates its entire constitutional analysis to the chiaroscuro of
There is no basis for the majority’s claim of prescience. On retrial, the State may forego offering those hearsay statements as evidence; thus, the issue would become moot. Even if so offered, the trial court may determine that, based on the record before it, the hearsay statements do not qualify for admission under any exception to the hearsay rule, again making the issue moot. Other events, many unforeseeable, may occur. In any of those instances, there will be no need for anyone to even address whether the hearsay statements are “testimonial” and thus subject to Crawford’s strictures.
If the majority had determined that the trial court did not abuse its discretion when it admitted the challenged hearsay statements, I would have embraced unreservedly the majority’s reasoning on both the hearsay and Confrontation Clause questions. Conversely, if the majority had determined that the trial court abused its discretion when it admitted the challenged hearsay statements, the analysis should have ended at that point, thereby allowing for a principled disagreement on that subject. Instead, the majority
I respectfully dissent.
See, e.g., N.J.R.E. 403 (excluding relevant evidence "if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence"); N.J.R.E. 404(a) (excluding as irrelevant specified forms of character evidence); N.J.R.E. 404(b) (excluding as irrelevant certain types of other-crimes evidence); N.J.R.E. 405 (defining methods of proving character); N.J.R.E. 406 (limiting, as irrelevant, admissibility of evidence of habit or routine); N.J.R.E. 407 (limiting, on public policy grounds, certain evidence of subsequent remedial measures); N.J.R.E. 408 (limiting, on public policy grounds, admissibility of "evidence of statements or conduct by parties or their attorneys in settlement negotiations"); N.J.R.E. 409 (limiting, on public policy grounds, admissibility of "[ejvidence of furnishing or offering or promising to pay medical, hospital, property damage, or similar expenses occasioned by an injury or other claim”); N.J.R.E. 410 (limiting, on public policy grounds, evidence of a guilty plea later withdrawn, "of any statement made in the course of that plea proceeding, and of any statement made during plea negotiations when either no guilty plea resulted or a guilty plea was later withdrawn"); N.J.R.E. 411 (limiting, on public policy grounds, evidence of liability insurance); N.J.R.E. 412 (adopting Rape Shield Law, N.J.S.A. 2C:14-7).
The trial court admitted the hearsay statements under the present sense impression exception codified in Evidence Rule 803(c)(1), and the Appellate Division found that the hearsay statements were also admissible as excited utterances pursuant to Evidence Rule 803(c)(2). Although the trial court "rejected, without elaboration, the excited utterance exception as a justification for the admission of the witness's out-of-court statements[,]" ante at 331 n. 2,
According to the majority, "[t]he interests of justice and judicial economy command” that the majority jettison fundamental canons of constitutional adjudication and, instead, "decide the constitutional issue before us, which will conclusively dispose of this appeal.” Ante at 341 n. 9,