*1 her and entered, Borys Mrs. decree was custody Elorida almost three New for Jersey had been living children remove a decision to disruptive potential The years. them to and transplant care from their mother’s children with no Elorida, provision home their grandparents’ Elorida court Yet patent. visitation rights, maternal their and children in the absence its decree rendered pres- information about their minimal only with mother and were Further, the Elorida proceedings home environment. ent ancillary continuing jurisdiction solely by supported all the cir- light three earlier. years divorce parents’ decree Elorida of the cumstances, enforcement unquestioning Jersey New the interest of would be inconsistent invo- Mechanical in the children’s welfare. parens patriae this case would full faith and credit clause cation of the interest, is not mandated and no one’s best serve with the clause. associated or precedent policies The affirmed. Division is Appellate judgment for a plenary hearing. will remanded case be Hughes For and remandment —Chief Justice affirmance Clifford, Pashman, Mountain, Sullivan, and Justices Handler —7. Schreiber
For reversal —None. PLAINTIFF-RESPONDENT, JERSEY, NEW STATE OF SHELDRICK, DEFENDANTS- AND FRANK PAUL SANDS APPELLANTS. September 20, May 1, Argued 197 7 Decided 1978. *4 De-; Mr. M. Assistant Singer, Deputy Public Stanford
fender, the cause for argued appellant Stanley G. Van (Mr. Ness, Defender, Public attorney). Bolán,
Mr. William F. Deputy Attorney General, argued for respondent the cause William F. (Mr. Hyland, Attorney General of New Jersey, attorney). opinion court was delivered by
Schreiber, J. Frank Sheldriek Paul Sands were tried as co-defendants various crimes, murder. including Sheldriek was found guilty murder in the first degree,
assault an with offensive life an weapon, threatening the other and of a illegal firearm. Sands was possession found guilty murder in the second and degree illegal possession of a firearm. The Division, Appellate their rejecting several grounds of their appeal, affirmed convictions. 138 N. J. Super. 103 We (1975). their granted petition certifica tion limited to the question of admissibility prior con victions to attack 71 N. J. 345 credibility. (1976).
The salient facts with crimes respect briefly to the bemay summarized. The record demonstrates that some antagonism had existed between the defendants and decedent William White. On night 6, 1973, defendants August went to the Vesuvius Bar on Avenue in Dewey West New York for the purpose out decedent. The de- seeking cedent White his and wife tavern, worked in was owned by Mrs. father, White’s Louis Indelicato. The State produced Mrs. proof through White, father, her and a patron, that the defendant Sheldrick with shot decedent a sawed- off shotgun and then threatened Mr. Indelicato. When the shooting occurred, Sands who with had been Sheldrick ran outside.
West New officers William Sherman and York Jack police DeLorenzo, Dewey radio car on Avenue who were near the Vesuvius when heard the observed smoke they gunshot, (emanate tavern, and saw Sands dash from the out into the alley. into the Officer Sherman street and a pistol throw and He pistol. Sands retrieved then arrested promptly arrested who was in Sheldrick Vesuvius entered the the sawed-off in hand. shotgun exiting process Sheldrick claimed that testify. the decedent not Sands did him with the shotgun, that he toward come White had barrel, accidentally and that went off gun grabbed objections, convictions were White. Over killing credibility. to affect his into evidence admitted to reexamine our decision in certification We granted Hawthorne, had which we (1967), require A. 2A:81-12 to the evidentiary S. N. J. interpreted *6 admission of conviction of every any to affect the crime of witness. credibility any
We have hitherto attacks on of rejected the principle Mustacchio, State v. Hawthorne. N. J. 265 57 Gallicchio, State v. 51 N. J. 313 State v. (1970); (1968); Adams, 50 N. J. 1 Por some see State v. critiques (1967). Johnson, J., N. J. 395 concur (Pashman, (1974) ; Comment, 70 Yale L. J. 775-778 Com ring) (1961); ment, Rut Note, 78 Harv. L. Rev. 426, 440-443 (1964); — gers Ladd, L. Rev. Cur Tests “Credibility (1968); Wigmore, 3A Trends,” 89 U. Pa. L. Rev. (1941); rent The Evidence, 1970). rev. 982 at 839-840 (Chadbourne § history on the bottomed in State v. Hawthorne is opinion drawn be act, and on of language significance of criminal from statute for expungement providing re have we records, N. S. A. 2A:164-28. Accordingly, J. examined of the holding. each underpinning A. follows: S. 2A:81-12 reads as any witness, credibility purpose affecting his of For proceeding his con- action, or or matter interest the result of the otherwise, by any may examination or viction of crime be shown * * by may evidence. other and his answers be contradicted re- 9 of an 1874 act This statute was modeled after section the law of evidence. section stated: vising That proceeding, or of the action The of a witness in the event interest crime, proved by may an examination be or his conviction of upon otherwise, such examination or and his answers such witness may by be contradicted other evidence. Section 1 of 1874 act provided any proceeding person or action no offered as witness [t]hat having nature, reason of shall be excluded a civil or criminal crime, on the be shown but such conviction been convicted production or, by witness, record of the cross-examination purpose affecting thereof, his credit. for the This section can be an properly under- appreciated only of standing historical context in which it was enacted. At common law a criminal defendant could not on testify his own behalf. 2 Wigmore, 701. supra This pro- at § hibition existed of a irrespective qualifications wit- ness (to be differentiated from a party). qualifications of a witness were declared by the in a Legislature statute en- acted on June 1799 which provided person, treason, [t]hat blasphemy, no who shall be convicted of mur- der, piracy, arson, rape, sodomy, against or the infamous crime na- ture, beast, polygamy, robbery, committed with mankind or with conspiracy, forgery, larceny dollars, or of above the of six value shall, any case, witness, be admitted as a unless he or she be pardoned; person, perjury, first and no who shall be convicted of *7 although pardoned perjury, same, of subornation of for the shall be witness, any Jersey 1703-1820, admitted as a [Laws case. of New p. Revision)] (1831 462 1799 The statute did not affect the general disqualification aof criminal defendant to own testify on his behalf. It ap- plied any to witness from a distinguished defendant who had been convicted of one of the enumerated crimes.
In 1871, the lifted the Legislature finally common pro law hibition a criminal against defendant’s on own testifying his behalf. 1, L.By 40, c. that Legislature provided § * * * the trial “upon any person crime, with charged * * * shall be admitted testify to as a witness [defendant] in his own behalf.” See J. Cases on Thayer, Evidence 1117 1n. ed. (2d 1900). Therefore until could defendant not even if testify he had been not convicted of of the any crimes in the 1799 listed act. Many significant crimes were not included. As Henson, noted by court State v. 66 J. L. 605-606 & A. (E. 1901) : by judges, obstructing railways, producing of $6. [1799] There are prisoners, act. fraudulent Among many embracery, bribery, compounding others are crimes voting, intentional counterfeiting, great abortion and turpitude injury larceny sheriff not crimes, public property, specified aiding escape under the value extortion in the
135 act were in the not admissible to Convictions not specified an answer theory this on the credibility, affect tend when the might not be answer could question compelled v. 2 N. J. Bailly, witness. State L. or disgrace to dishonor Terminer, & Por the 1807). principle 396 same Oyer (Sussex 1830); Vaughn 79 Brugler, (Sup. Fries v. 12 N. J. L. Ct. see Perrine, 1811). 3 N. L. 299 Ct. (Sup. 1874, a crim- result, was between act repealed. As witness, testify provided defendant, inal like could other any listed of the offenses he had not been of any convicted would convictions act, and, the 1799 if testify, prior he did credibility. not be used to affect his Hawthorne, 1874 act In State v. we concluded harsh disability imposed was intended to remove the crimes. statute on enumerated convicted persons We convictions prior reasoned that the clause permitting disability for that impeachment was to substitute intended any in the use power general prosecutor recon- full a witness. at 133-135. After impeach 49 N. J. sideration we have view mistaken. was concluded this state- a comprehensive embodied
Pirst, the 1874 statute cannot evidence, and interpretation law of its ment of the its interplay from drawn be left to inferences act and the 1874 statute relationship act. The con- Henson, supra. was raised in State v. a de- affect admissible only convictions tended *8 act. the 1799 in enumerated those credibility fendant’s were 1799 act the contention, held that court, in The the rejecting because independently 1874 act be considered the must repealed by act] was not [the 1799 force of the said first section of it, the act was inconsistent but there was because it * * express repealer act] in 1874 *. [1799 the an present independent [1874 first section of act an act] The employed by according language must be to act and construed legislature express purpose enacting [66 to in N. J. L. its it. 604-605] at Furthermore, as noted above, prior to 1874 convictions for not offenses specified act were not to admissible affect Thus, credibility. at the time enactment, of the 1874 many witnesses were not subject to because of impeachment Yet, convictions. the effect of that act was to subject for the first time the credibility of such witnesses attack because of criminal convictions. To conclude that Legis- lature was motivated aby desire to reduce the harshness of the disqualifications caused by the statute does not follow. The history indicates that did not Legislature adopt credibility section in the act as a quid pro quo relieving defendant of or the 1799 disqualifications act aas substitute for the ad- same disqualifications (a position Henson, vanced by the dissenting opinion N. J. L. at 614). Hawthorne,
In State v. in the language expungement act, N. J. A. 2A:164-28, S. was said to support position that convictions of were admissible without qualifica- crimes tion to affect 49 N. J. at credibility. 138-140. The ex- pungement act authorizes a convicted of a crime person (other than treason, misprision treason, anarchy, assault on a head state, arson, cer- rape, robbery, or kidnapping, tain homicides) have the record after expunged years conviction or release from imprisonment or there be- parole, ing no conviction, subsequent and to be relieved “from such * * * * * disabilities as have existed reason thereof The contention was made that the Legislature adopted the initial expungement act in L. 1931, c. was aware of the disabilities which “follow in the wake convic- tion of crime.” It was then implied one such disability was to have one’s credibility subject attack by evidential use of a prior conviction and that the therefore Legislature did not intend to authorize a court its discretion ever re- ject such evidence on grounds two relevancy. are There major difficulties with this analysis. expungement statute was enacted after and long is unrelated
137 history or language in the 1874 act. Nothing evidence to guide an interpretative act serves expungement the not render does evidence Second, the 1874 act. impeachment is not accordingly a a witness and person incapable'of being statute find reliance on the “disability”. expungement We is misplaced. Hawthorne, found support we v. in State
Lastly, Henson, act of supra, v. a comment in State “[t]he law, court, as question 1874 submit to the not does it is credibility; affect should whether the crimes charged to say alone it is whose jury, province question 66 N. J. shall be affected.” extent, credibility any, if what State must be read context. L. at 606. This comment error Henson, court committed whether the issue was v. on convic cross-examined defendant to be permitting The in the statute. not listed were tions crimes 1874 act sanctioning reach of the that the contended re was so to convictions with respect cross-examination “crime” in the the word The court concluded that stricted. trial id. at without qualification, act was the cross-examination. It did err in permitting not judge did trial compel judge statute not held only previously incapacitating cross-examination restrict merely of law.” Id. at 606. This holding a question crimes “as crimes could never some types contention that rejected admitted, their weight Once impeachment. be used for The was for the court not con jury. was credibility respect exercise discretion in judge may with whether a trial cerned us.1 crime, of a issue before evidence excluding Hawthorne, over have 1In we commented that we give so, Legislature Legislature’s will, and, if would stated the appropriate at 49 N. J. 140-141. matter consideration. Legislature been construction have no Two has taken action. rules sig expressed explain legislative inaction is that inaction. One Monahan, judicial interpretation. acquiescence State v. in the nifies ; J., dissenting) (Oliphant, v. Bd. (1954) Miller N. J. (1952). Freeholders, The other 10 N. Chosen *10 ex- We the are that satisfied the historical background, v. Hen- State act referred to in pungement and the comment son do not convic- every the conclusion that criminal support tion is admissible under all circumstances automatically affect the of credibility criminal defendant. of N. A. J. S. the does not
Facially, 2A:81-12 language that criminal into evi specify convictions must be admitted dence. The law present credibility provides affect “interest action, in the result of the or person’s proceeding * * matter or his conviction of may crime be shown any N. J. S. A. 2A:81-12 (emphasis supplied). 1 of act,
Section the 1874 after the of a reaffirming right on behalf, his own testify convictions permitted to be shown “for of purpose the credit.” affecting
Section act provided: person disqualified any proceed- No shall be as a witness in suit or ings equity by at law or in reason of his or her in interest the event party otherwise, may of the same as a or but such interest be shown purpose affecting [Emphasis sup- his or her credit *(cid:127)*>*. plied] 9, as above, Section noted read: proceeding, The interest of a witness in the event action or crime, may proved by or his conviction of a an be examination of otherwise, upon such witness or and his answers such examination be contradicted other evidence. Justice Jacobs remarked in his in concurring opinion Hawthorne, supra: unlikely Legislature It seems when enacted any restricting it revision had at notion all of the court’s discre- tionary powers on matters of and [49 remoteness N. J. like. 151] at “[legislative only Legislature can inaction mean did not Wildwood, Donaldson v. No. act.” Bd. 65 N. J. 240-241 n.* (1974) ; Creecy, (1969). Schmoll v. 54 N. J. We incline expressed latter view. The intent S. A. 2A:81-12 is judicial question respect subsequent to which the inaction of legislatures dispositive. is not when the his on added significance comment This takes which as we evidence, and interest torical status treatment of manner to in the same have seen was referred statutorily law, any are At common evidence, analyzed. competent an was not one interest the case having 685-687, from Wigmore, quotes 576 at supra testify. § Starkie, as follows: Evidence *83-84 (1824) any person, under even The law will not receive the evidence giving proposed oath, evi- sanction of has an interest an who duty. dence, consequently This conflicts with his whose interest explana- principle, requires exclusion, little considered in its rule nature, human on infirmities of It is founded the known tion. *11 by religious generally ob- [sic] or oral is weak restrained too to he contrary by tempted ligations, a and in direction when solicited doubt, many temporal are, whom no interests no interests. There by duty, opera- the their from a sense of and exclusion could seduce particular may truth. But cases shut out the of this in tion rule proves rules; experience prescribe general and the law must reception general from of interested result the more mischief would general by exclusion. their than is occasioned witnesses law prohibi- this common eliminated In 1855 Legislature the bemay that “such interest tion and substituted the provision wit- credibility of the affecting shown the purpose act interest 1. The 1855 removed L. c. ness.” § 1871 act lifted the as the just a of incompetency, ground from testifying. a criminal against prohibition the common reaffirmed of 1874 statute elimination The and a criminal an law of interested witness disqualifications of evi- introduction However, the permitted defendant. act for the of purpose conviction of crime dence of interest and con- or “credit”. Interest the witness’s “affecting” manner. This common in viction was to be the same proved been continued in the exist- the 1874 act has treatment 2A:81—12. It reasonable con- statute, N. J. S. A. to ing the the to apply clude that the intended courts Legislature of evi- rules of two types for admissibility same these ground to namely for the affect purpose, dence utilized same being is construed as unit manner, the statute credibility. this * * * in accord the with principle “each part should be * * * construed in connection with other every part so as to Sutherland, produce whole.” harmonious 2A Statutory Construction, 46.05 at 56 ed. 4th (Sands 1973). §
Our courts have with historically exercised their discretion to de- respect In a case admissibility of interest evidence. cided only one year after the Court act was adopted, the of Errors and Appeals discretionary in dictum alluded authority of the trial concerning judge respect proof credibility: is, The cardinal rule in the trial of shall causes the evidence confined, by parties. be to the issues An made adherence this practical great by importance jury. rule is of In almost trials every variety facts, case of controverted an infinite extraneous of may upon suggested, remotely circumstances be bear involved, upon credibility
issues or witnesses. ad proof dis mission such must be left circumstances might judge, jury cretion otherwise be confused tending miscarriage issues, cause, multitude the' of collateral to a Griffin, expanded [Schenck the trial to an extent. unreasonable 1875)] (E. J. L. & A. 3 Co., In DeVicenzo v. John Faucet N. J. L. Sommer & 1915), A. the court asserted reference inter (E. est evidence: The admission peatedly cross examination of this character has been re- *12 by this held court to be the sound discretion of trial court; injury may it is where not manifest that have been done rights objecting party by admission, to the action its [Id. trial court 647-648] will not be disturbed. at Donohue, also N. 380,
See v. 62 J. L. & A. 383 Day (E. Co., & N. Lackenauer v. Sons 67 J. L. 1898); Lyon Brewing Quinlan, 677, 679 A. 86 J. 1902); 120, & State v. L. (E. N. 131 o. b. 87 N. J. L. & A. (Sup. 1914), Ct. aff'd 333 (E. It well has 1915). also established that trial broad judge a discretion in of cross-examination to controlling scope Chiesa v. Public Service Co-ordinated credibility. test Transp.
141 Co., A. 69, 1942). J. L. 73 & There dis being 128 N. (E. trial court with respect cretionary authority vested seems reasonable to conclude evidence, it interest in connection with discretion was imparted prior con similar evidence. viction statutes containing language other jurisdictions having 2A:81-12, found that N. S. A. courts have
comparable to criminal vested in the sound convictions is admissibility Martin, State v. trial court. See judicial discretion N. W. 536, 1974); 217 541-543 Ct. Iowa —, , 2d (Sup. — — Jackson, 22, 323, v. 391 Mich. 217 W. 2d People 441, 99 24-26 v. 6 Cal. 3d 1974); People Beagle, Ct. (Sup. 313, Cal. 492 7-8 v. Rptr. 1, P. 2d Ct. 1972); (Sup. Driscoll, 699, 851, 53 Wis. 2d 193 N. W. 2d 857 Ct. (Sup. v. Ill. 1972); Montgomery, 510, 47 268 N. E. 2d People 2d 697-698 695, State v. 160 Conn. (Sup. 1971); Marquez, Ct. 47, 689, A. 273 2d 691 Ct. Asato v. (Sup. 1970); Furtado, 284, 288, 52 474 P. 2d 294-296 Ct. (Sup. Haw. States, 1970); Luck v. United 121 151, 156, U. S. D. C. App. 763, 348 F. 2d 768 C. Cir. v. (D. 1965); San People 2 cf. doval, 371, 849, 34 N. Y. 2d 357 N. Y. 2d 850, S. 314 N. E. see, West, 2d 413 App. 1974). e.g., State (Ct. But v. 285 468, Minn. 188, N. W. 2d 472-473 Ct. 1970); (Sup. West, v. Commonwealth N. E. Mass. 2d Jud. Ct. (Sup. 1970). position This insures fairer trial exclusion related allowing remotely conviction with to lead tendency jury its believe the has McCormick, Evidence, criminal disposition. See 43 at § Zeisel, 89-90 ed. Kalven and 1972); (2d American Jury subsequent statutory change, of a Lucio 2As a result decision Taylor longer in the District of no states the rule Columbia. See States, (D. App. 1971). A. 2d v. The Lucio United C. original refusing removing for construe the rationale statute to exclude trial discretion court’s evidence has many jurisdictions, see, e.g., People accepted in other v. Jack- been supra; guidelines son, exercise that discretion its have been People See, g., Beagle, supra. adopted e. in several. *13 142
159-161
Furthermore, mandatory
(1966).3
admissibility un
questionably discourages many defendants
from
taking
stand, and the
will
process
be enhanced
fact-finding
to the
extent
are
defendants
to and
See
testify,
do
encouraged
Bentham,
Evidence,
5
generally
J.
Rationale
Judicial
Bk.
of
9,
3
ch.
at 381-385 (1827).
It has been
that not all
are
argued
crimes
related
to or
have
on
bearing
credibility.
Rules
Uniform
of
Evidence R.
21,
line with that
thinking, proposed
the conviction must be for a crime
dishonesty or
involving
false statement. Our
Court Committee
Supreme
on Evidence
recommended that
fraud,
crime involve
lack of veracity
or false statement. See 1963 Report
Court Comr
Supreme
of
Evidence,
mittee on
Rule 21, at 65-66. This recommenda
tion was rejected by
Legislature,
it apparently believing
that a witness’s convictions for
crime
shed some
any
might
on
light
We
credibility.
have previously
this
recognized
Sinclair,
nexus.4 In State v.
57 N.
64
56,
(1970), we
fully
danger
might improperly
jury
3We are
aware
that a
prior
pro-
use a
conviction as evidence of the defendant’s criminal
pensity.
explain
judges
carefully
We have
trial
instructed
purpose
prior
Sinclair,
limited
v.
conviction
See State
evidence.
56,
(1970).
57 N. J.
problems.
Spen
4We discern no federal or state constitutional
Texas,
554,
648,
(1967),
cer v.
385 U. S.
S. Ct.
L.
Ed. 2d 606
implicitly approved
the Court
in dicta
the use
impeachment
possibility
preju
evidence for
where “the conceded
outweighed
validity
pur
by
is
dice
believed to be
the State’s
pose
561,
permitting
introduction of the evidence.” Id. at
87 S.
California,
652,
v.
at
mittee’s Evidence Bule proposed 21. oí Adoption any of these guidelines may be to the accomplished pursuant Evidence Act, 1960, N. J. 8. 2A Meanwhile, A. :84A-33-44. re we spect 2A:81-12, Legislature’s judgment, S. A. credibility may be affected principle any type crime. Our rules of evidence prescribe basic for trial guideline Rule 4 judges. reads: judge may in his discretion exclude evidence if finds he *15 probative substantially outweighed by its value is the risk that its consumption (a) admission will either necessitate undue or of time (b) danger prejudice confusing create substantial of undue or of the misleading jury.
issues or of This rule is in with harmony law. pre-existing See Co., John DeVincenzo v. Faucet Sommer supra, and re lated cases cited above. More it is recently generally within the discretion of the trial court to exclude remotely relevant evidence, the probative value of is offset by the pos confusion sible of issues and danger of undue prejudice.
We hold that whether a prior conviction may be ad mitted into evidence a against criminal defendant rests discretion within the sound of the trial His judge. discre tion is broad one which should be guided by the con siderations which follow. Ordinarily evidence of con prior ¡burden victions should be admitted and the to proof exclusion rests on the justify defendant. to exclusion is key remoteness. Remoteness
cannot ordinarily be determined passage of time nature alone. The of the will convictions probably abe sig nificant factor. crimes, Serious including those involving lack of veracity, fraud, or dishonesty should be considered than, as having effect weightier example, conviction of death by reckless In other driving. words, a lapse same time period might justify exclusion of of one evidence conviction, and not another. The trial court must balance the lapse of time and the nature the crime to determine whether the relevance with to respect credibility outweighs Moreover, effect to the it is ap- defendant. prejudicial trial to for the court its discretion propriate exercising consider convictions between intervening past and the crime for which the defendant When being tried. a defendant has extensive criminal indi- record, an prior that he has for the bounds of behavior cating contempt citizens, on all his burden should be a one placed heavy all A to such evidence. has the attempting jury exclude whether who right weigh comply one refuses repeatedly rules society’s likely ignore is more oath re- on the witness than a veracity stand law quiring abiding If citizen. has been of a person convicted series of crimes crime, then years, conviction of the earliest through before, committed well although many years as interven- convictions, should be admissible. ing case, we are satisfied that error was the instant no committed with He did respect to the Sands. court or Appellate not raise the issue before trial he Division. Before us for the time has urged first “fear lest his record of offenses failure was testify “was come the attention and that he intim jury” idated into stand.” These to take the declining witness reality. unwarranted assertions conflict with unsupported *16 Sands, trial, fear at in join never such did not indicating limit his co-defendant’s efforts to the evidential effect trial convictions. Sands’ tactics to tes deciding not prior His trial were in no motivated his record. tify way by prior had two remarked at that Sands sentencing only counsel record, his offense and a disorderly persons blemishes on New adjudication York, offender neither youthful criminal admissible into which was evidence Geer, v. at trial. 42 N. Y. 2d People See impeachment 613, N. 273 170, 397 N. Y. S. 2d 366 E. 2d (Ct. App. Laws, 159, v. 50 179 mod. on (1967), State 1977); 971, N. J. cert. 89 494, den. U. S. other grounds, L. Ed. 408, S. Ct. 2d (1968). con- At the different. somewhat position
Sheldrick’s moved case, (1) of the Sheldrick clusion State’s be ad- convictions which could limit the number of court cross-examination; and (2) prosecu- verted to on had whether the defendant restricted to tor’s be inquiries The so, how times. crime, and, many of a if been convicted motions. itself bound Properly feeling trial court denied the Hawthorne, on it would be no limit held there made. to which reference could be the number convictions The court also prosecutor’s questions trial stated that offense, nature be limited to the would generally sentence and the given. charge date of the conviction only convictions were to be considered emphasized that and on Sheldrick’s not as evidence bearing credibility he more committed the likely charged that was to have crimes or as of their any evidence elements. tending prove Between 1950 record was extensive. prior
Sheldrick’s and 1971 had and he been convicted of assault battery, atro cious battery (two convictions), assault and larceny (three false convictions), robbery, money by obtaining pretenses, checks, without inter issuing entering worthless breaking, state of stolen transportation property, being fugitive from He in 1950 justice. placed probation was on for two years, 1954, incarcerated between June 1952 and August 1959, 1956 and May September November and March 1968, November 1970 and March 1971 and August 1973. March of his offenses were Many committed before full term of his sentences had prior He had been expired. from jail released in March and the incident in ques tion on occurred 1973. Under these August circumstances clearly sound discretion warranted all the admissibility of convictions. Furthermore, was not a “close ease.” A this reading overwhelmingly leads transcript judgment was The testimony verdict sound. of three jury’s eye officer who police apprehended witnesses and the Sheldrick as he leaving hand was Vesuvius Bar is gun *17 that testimony defendant’s Further most compelling. He not believable. misadventure was due to was killing him, that hand, .in White, approached shotgun claimed and floor, to the and it pushed barrel he grabbed gun version not was con only fired. His gun that somehow the with be but cannot eyewitnesses, squared tradicted en testimony pellets uncontroverted medical erro Even if it had been chest and abdomen. tered White’s are convictions, and we to have admitted all prior neous at best. not, it was error would be harmless satisfied such Macon, LaPorte, J. State v. State v. N. (1973); J. 325, 57 N. 336-338 R. 2:10-2. (1971); 2A: S. A. then, we hold that
In summary be ad every prior not mandate that 81-12 does The trial credibility. judge affect mitted into evidence to affect credi convictions to of criminal shall admit evidence he discretion unless his of a criminal bility remoteness, its giving force because of that its probative finds the na such as circumstances to relevant due consideration and con incarcerations crime, intervening and ture of the admission its so victions, substantially outweighed this discretion By recognizing undue prejudice. will create an ob we have removed trial shall judges, in the ary power trial and insure fair their conscientious efforts to “in stacle Hawthorne, at 149 (Jacobs, 49 N. J. justice.” do Haw State v. Our J., result). overruling concurring effect be ap have a prospective thorne this shall day hereafter. commencing only trials plied of convictions are affirmed. judgments I with the forward look- J., concurring. join Pashman, decision will enhance the Today’s of the Court. ing opinion justice system by of the criminal accuracy diminishing aTe juries deprived evi- probative frequency failure to for fear of testify preju- due to defendant’s dence convic- because of criminal dicial impeachment minimize, not will also serve to but unfortunately It tions. *18 148
eradicate, testify that a whio elects to the risk defendant will be convicted for the wrong criminal record despite n — n a result very of-justice. reasons abhorrent to the concept the con- I am at the Court’s of sensitivity many pleased Johnson, in 65 my cerns in concurrence expressed 388, N. J. 392 Neverthe- (1974) (Pashman, J., concurring). in less uneasiness over the amount of discretion vested my the trial the Court me to note views judge by prompts my on that issue separately.
The Court stresses that remote logical temporal ness of is central criterion in the prior convictions calculus. matters admissibility should receive weighty These However, consideration the trial most by judge. critical is factor not specifically addressed. As Chief Justice Burger, as a circuit in writing Gordon v. United judge, pointed out States, U. 343, S. D. C. 383 F. 936 App. 2d C. (D. Cir. cert. 1967), den. U. S. Ct. Ed. S. L. 2d 287 (1968): important One consideration is wliat will the effect be if the defend- testify being prejudiced ant does not out of of im- fear because of peachment by prior though judge might convictions. Even a find prior credibility convictions are relevant and the risk of prejudice exclusion, may to the defendant does not their warrant he important jury it is nevertheless conclude that more have of than the benefit defendant’s version the case to have the impeachment. remain silent out fear of App. [127 940-941]1 S. D. C. at 2d at U. F. a I am of the fact that good aware deal of discretion
Again, judicial must into this determination. No sound go system a automatically defendant with a permit would string in the appear jury convictions before same prior light a on first time offender the mere that he representation as is will not if his record admitted. In a testify prior given analysis particularly 1The Chief Justice’s O-ordon well-rea by judges guidepost and commends itself to use trial a soned making admissibility the delicate determinations entrusted their the Court. sound discretion interests case, however, balancing require judge concerning cross-examination defendant’s prior prevent convictions. laundry jury indiscriminate to the presentation
list all see convictions, which Court prior permits, ante at 144^145, would make the defendant’s conviction conclusion, even innocent of foregone if he was fact offense for which he was would be preferable tried. It being to admit the most serious of his convictions *19 meets the remoteness test set forth the Court. by
A
which
use in
helpful guide
assessing
trial
judges
remoteness is found
Federal Buies
of
Eule
the
(b)
of
Evidence which reads in
as follows:
pertinent part
Time limit. Evidence of a conviction under
this
is not ad-
rule
period
elapsed
years
missible if a
of more than
since
ten
has
the
date
the conviction or of the release of the
from
con-
witness
the
imposed
date,
conviction,
finement
that
whichever
is
later
the
determines,
justice,
proba-
unless the court
the
the interests
supported
specific
tive
value
the conviction
and cir-
facts
substantially
outweighs
However,
prejudicial
cumstances
its
effect.
years
herein,
evidence
a conviction more than 10
old as calculated
proponent gives
party
is not admissible unless
adverse
sufficient advance written notice of intent
to use such
evidence
provide
party
opportunity
the adverse
with a fair
to contest
of such
use
evidence.
609(b),
[Fed. Rules. Fvid. Eule
93-595,
L.
§
tions a be mindful must judge trial de- admission of whether should ask himself sideration. He will purposes for impeachment fendant’s convictions prior he is the crime on only trial focused deny that deflecting accused of committing by improperly presently In a evil character. jury’s perceived consideration to will close prejudice case the such ever-present danger scales tip result from should admitting on favor trial of exclusion. A defendant deserves merits, recog- must not on his demerits. Trial judges past between nize that whatever reach they accommodation trust- be a State’s concern that a scoundrel not appear rele- Avorthy present individual and the right to defendant’s vant haunted by past evidence without exculpatory being misdeeds, the fundamental concern is that focus should remain crime for always on the proceedings doubt- the defendant tried. The above being considerations *20 less time and prompted the Court to require lapse nature crime the conviction must be underlying balanced effect to of ad- against prejudicial ante at mission. See My 144-145. concurrence intended to make these concerns more explicit. new rule conclusion, adopted by I note that rather unlimited well in practice, despite
Court work If many too judges. conflicting discretion it the trial gives arise, we are free to this formulation modify determinations explicit guidance. Subject in the future to more provide herein, I concur in fully comments Justice Schreiber’s my for the Court. opinion J., in the result. concurring
Pasiíman, Hughes Moun- and Justices Justice For affirmance —Chief Clifford, and Handler —6. Pashman, tain, Schreiber For reversal —None.