STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CARL S. WILLIAMS, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY
Argued March 15, 2005-Decided July 28, 2005.
877 A.2d 1258
ORDERED that the entire record of this matter be made a permanent part of respondent‘s file as an attorney at law of this State; and it is further
ORDERED that respondent reimburse the Disciplinary Oversight Committee for appropriate administrative costs incurred in the prosecution of this matter.
Paul H. Heinzel, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Attorney General of New Jersey, attorney).
Edwin J. McCreedy, President, submitted a brief on behalf of amicus curiae New Jersey State Bar Association.
Justice ZAZZALI delivered the opinion of the Court.
In this appeal, we must decide whether a mediator appointed by a court under
Defendant‘s brother-in-law phoned defendant and lеft several taunting messages, leading to a face-to-face argument that quickly escalated into a physical fight. Defendant claims that his brother-in-law hit him in the shoulder with a large construction shovel. The brother-in-law counters that defendant retrieved a machete from the trunk of his car and cut the brother-in-law‘s wrist and foot. Police later apprehended defendant in his apartment where they found a machete.
After his arrest, defendant filed a municipal court complaint against his brother-in-law, alleging that the phone messages constituted harassment. The municipal court, in accordance with
A grand jury later indicted defendant for aggravatеd assault and two charges of possession of a weapon. Defendant asserted self-defense as his primary theory and proffered the mediator as a defense witness. Questioned by the court outside of the jury‘s presence, the mediator indicated that the brother-in-law stated during the mediation session that he had wielded the shovel. The court, however, excluded that testimony under
I.
Defendant Carl Williams and his brother-in-law, Brahima Bocoum, were close friends. Defendant‘s wife, Kia, is the sister of Bocоum‘s wife, Renee Oliver. Difficulties between defendant and Kia‘s family eventually destroyed his friendship with Bocoum. The situation worsened when Bocoum became enraged after Renee told him that defendant had been gossiping about him. Together with Renee and her brother Robert, Bocoum left threatening, profanity-laced messages on defendant‘s voicemail.
When defendant received the messages the next morning, he drove to Bocoum‘s residence. He called into Bocoum‘s house and banged on a window, waking Bocoum, Renee, and Robert. From a first-story window, Bocoum began arguing with defendant. Bocoum eventually went outside to confront defendant on his front porch. At one point, Robert pulled Bocoum back into the house, but Bocoum reemerged and approached defendant on the sidewalk.
According to Bоcoum, defendant walked to his car parked across the street, opened the trunk, and pulled out a machete. Defendant swung the machete at Bocoum, cutting his right wrist. The two wrestled briefly and fell into several full garbage cans. Renee and Robert confirm Bocoum‘s accusations. Defendant, however, denies that he had a machete and claims that Bocoum cut his wrist when they fell into the garbage cans. Defendant further maintains that, at one point during the argument, Bocoum picked up a large construction shovel located on the front porch and hit defendant in the shoulder. Bocoum, Renee, and Robert all testified that Bocoum did not pick up or swing a shovel at defendant.
While in police custody, an officer advised defendant that he could file a municipal court complaint against Bocoum and Renee for making harassing phone calls. After defendant filed the complaint, the municipal court, pursuant to
A grand jury indicted defendant for third-degree aggravated assault,
Hall described defendant and Bocoum‘s exchange during the mediation:
They were talking about the fight that they has. [Defendant] says that they went into a fight and they come together and he picked up the next gentleman and he threw him and they fell into a garbage bin, okay? . . . I ask [defendant] did you use a weapon and he says no.
The other fellow says that it was a fight and there was a shovel at the door and he picked up the shovel and-but he didn‘t make any hit with it.
Hall said that the mediation session quickly became chaotic, with both defendant and Bocoum “talking at the same time.” According to Hall, Bocoum “said he‘s the one that picked up the shovel. It seemed like he picked up-to my understanding, the little knowledge I have-he рicked up the shovel, but he didn‘t say he hit [defendant] with it or nothing.” Hall also recalled that he “didn‘t hear nothing about a machete.”
After interviewing Hall, the court rejected defendant‘s proffer of Hall‘s testimony. The court based its ruling on
There is very strong public policy for this rule. It really obliterates the whole dispute resolution process if this confidentiality is not enforced. Of course, the rule has been violated. The mediator violated it; [defense counsel] violated it.
I‘ve made a record for a court. [Defense counsel] has no right to ask him about what went on in that mediation process in the first place, to solicit that information from him. And the question I‘m faced with now that the rule has been violated, should I under all of the circumstances allow the defendant thе benefit of this testimony.
I‘m not satisfied that it‘s terribly valuable; but certainly the argument could-may be made on the other side it has great value to him and the jury should be allowed to decide. But my inclination is-I guess it becomes a personal posture-that I think rules should be followed, especially when there‘s good reasons for the rule. And because someone else has already violated the rule, that doesn‘t mean the court should now disregard the rule. That would be a solicitation for rules not to be followed in the future.
So-an appellate division may think otherwise. But my view of this matter is that . . . there was a rule that provides for confidentiality and that that rule should be followed and the defendant cannot be allowed this witness at this trial.
. . . I have personally very serious reservations about the reliability of his testimony, but I‘m not deciding this based on that. I‘m deciding it based on the fact that whatever was said in that mediation process was said after the people were told it was confidential and wouldn‘t be used in a criminal proceeding thereafter. And while it has some probative value to the defendant, I‘m persuaded on balance that I would follow the rule and not encourage rules to be violated. So I won‘t allow him to testify.
After defendant appealed, the Appellate Division affirmed his conviction in an unreported decision. The court acknowledged that Hall‘s testimony potentially could have helped defendant establish self-defense, “a key defense contention.” However, the panel ultimately agreed with the trial court‘s refusal to admit Hall as a witness, concluding that defendant was not deprived of a fair trial because the panel found that his assertion of self-defense “was fully tried to the jury.” Accordingly, the court held that “[t]he interests of justice do not require relaxation of [
We granted defendant‘s petition for certification solely on the issue of the admissibility of the mediator‘s testimony. 182 N.J. 426, 866 A.2d 983 (2004). We also granted amicus curiae status to the New Jersey State Bar Association (NJSBA) and to the Committee on Dispute Resolution (Committee), which is an “association of mediation and arbitration experts.”
II.
Defendant contends that the mediator‘s testimony may serve to exculpate him and that the trial court‘s refusal to allow the mediator to testify deprived him of his right to fully present a defense. Defendant explains that his defense depends on whether he can establish that he acted in self-defense. He maintains that “[t]he relevance and probative value of Pastor Hall‘s proffered testimony was clear and substantial, as it would have established, from an unbiased witness, that Bocoum indeed wielded a shovel during the fight.” Defendant insists that his right to compulsory process was violated when he was unable to proffer the mediator‘s testimony as substantive evidence that Bocoum had the shovel and
The State opposes relaxation of
III.
Before addressing the central issue in this appeal-whether, and under what circumstances, a mediator‘s testimony may be excluded from a criminal trial-we first set forth the background of the mediator‘s privilege and the rights that defendant claims are impaired by that privilege.
A.
Bocoum made statements, which defendant alleges are exculpatory, during a mediation session that the municipal court ordered as part of the Complementary Dispute Resolution Programs (CDR),
[N]o disclosure made by a party during mediation shall be admitted as evidence against that party in any civil, criminal, or quasi-criminal proceeding. . . . No mediator may participate in any subsequent hearing or trial of the mediated matter or appear as witness or counsel for any person in the same or any related matter.
[ (Emphasis added.)]
In this matter, the mediator‘s act of testifying constitutes an “appear[ance] as [a] witness.” See ibid. And, although defendant‘s municipal court proceeding dealt primarily with the allegedly harassing phone messages from Bocoum that precipitated the fight, the municipal action also is a “matter” that is “related” to defendant‘s “subsequent trial” for assault and weapons charges. See ibid. Therefore, under a plain reading of
. . .
Defendant asks this Court to relax the
Justice Clifford‘s dissent in Stone v. Township of Old Bridge, 111 N.J. 110, 125, 543 A.2d 431 (1988) (Clifford, J., dissenting), captures the spirit that animates
B.
Determining whether relaxation is appropriate in this appeal requires an examination and balancing of the interests that are at stake. The Fourteenth Amendment guarantees every criminal defendant the right to a fair trial. Strickland v. Washington, 466 U.S. 668, 684-685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 691-92 (1984). At its core, that guarantee requires a “fair opportunity to defend against the State‘s accusations.” Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 1045, 35 L. Ed. 2d 297, 308 (1973). The Supreme Court has explained that this right is effectuated “largely through the several provisions of the Sixth Amendment,” Strickland, 466 U.S. at 685, 104 S. Ct. at 2063, 80 L. Ed. 2d at 691, which entitles a defendant “to be confronted with the witnesses against him” and “to have compulsory process” to secure testimonial and other evidence. Our State Constitution, containing identical wording, affords those same rights.
The confrontation right assures a defendant the opportunity to cross-examine and impeach the State‘s witnesses. See Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347, 353 (1974). “The right to confront and cross-examine accusing witnesses is among the minimum essentials of a fair trial.” State v. Budis, 125 N.J. 519, 531, 593 A.2d 784 (1991) (internal quotation marks omitted). The right to compulsory process is grounded in similar sentiments: “Few rights are more fundamental than that of an accused to present witnesses in his own defense.” State v. Sanchez, 143 N.J. 273, 290, 670 A.2d 535 (1996) (internal quotation marks omitted). Together, the rights of cоnfrontation and compulsory process guarantee “a meaningful opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146, 90 L. Ed. 2d 636, 645 (1986) (internal quotation marks omitted). “That opportunity would be an empty one if the State were permitted to exclude competent, reliable evidence bearing on . . . credibility . . . when such evidence is central to the defendant‘s claim of innocence.” Garron, 177 N.J. at 168, 827 A.2d 243 (quoting Crane, 476 U.S. at 690, 106 S. Ct. at 2147, 90 L. Ed. 2d at 645).
But the rights to confront State witnesses and to present favorable witnesses are “not absolute, and may, in appropriate circumstances, bow to competing interests.” Budis, 125 N.J. at 531, 593 A.2d 784. Generally, courts conducting criminal trials may reject proffers of “evidence helpful to the defense if exclusion serves the interests of fairness and reliability.” Id. at 531-32, 593 A.2d 784. For example, because assertions of privilege often “‘undermine the search for truth in the administration of justice,’ they are accepted only to the extent that they outweigh the public interest in the search for truth.” State v. Szemple, 135 N.J. 406, 413-14, 640 A.2d 817 (1994) (quoting State v. Dyal, 97 N.J. 229, 237, 478 A.2d 390, (1984)). Thus, “if evidence is relevant and necessary to a fair determination of the issues, the admission of the evidence is constitutionally compelled.” Garron, 177 N.J. at 171, 827 A.2d 243.
IV.
With that law as a backdrop, we now must determine whether the trial court‘s exclusion of the mediator‘s testimony under
The recently enacted Uniform Mediation Act (UMA),
The UMA protects mediation confidentiality by empowering disputants, mediators, and nonparty participants to “refuse to disclose, and [to] prevent any other person from disclosing, a mediation communication.”
As noted, the UMA states that the privilege gives way if the need for the evidence “substantially outweighs” the interest in protecting confidentiality. Defendant asserts, and the State disagrees, that the qualifier “substantially” represents an unconstitutional evidentiary restriction. Defendant adds that the Court should consider only whether the need “outweighs” the confidentiality interests, a standard that is less burdensome for defendant.
We do not determine the constitutionality of the UMA standard in this appeal for three reasons. First, as noted above, the UMA was not in effect when the events at issue in this trial occurred. Second, the parties raised the issue for the first time after oral argumеnt before the Court in this matter. It is appropriate that we defer consideration until litigants can fully argue and brief the subject in a proper case. Third, we need not address that question now because its resolution is not necessary to our disposition. That is so because even when we apply defendant‘s stan-
The first requirement is clearly satisfied because defendant is on trial for assault and weapons charges and seeks to introduce evidence of mediation statements into that trial. Therefore, we must assess whether the interest in maintaining mediation confidentiality is outweighed by the defendant‘s need for the mediator‘s testimony. Finally, we consider whether the substance of the testimony is available from other sources. Ultimately, we conclude that defendant has not met those requirements and, therefore, cannot defeat the privilege against mediator testimony.
A.
We begin by considering the “interest in protecting confidentiality” and examining the social and legal significance of mediation. An integral part of the increasingly prevalent practice of alternative dispute resolution (ADR), mediation is designed to encourage parties to reach compromise and settlement. See
Successful mediation, with its emphasis on conciliation, depends on confidentiality perhaps more than any other form of ADR. See Foxgate Homeowners’ Ass‘n, Inc. v. Bramalea Cal., Inc., 26 Cal. 4th 1, 108 Cal. Rptr. 2d 642, 25 P.3d 1117, 1126 (2001) (“[C]onfidentiality is essential to effective mediation . . . .“). Confidentiality allows “the parties participating [to] feel that they may be open and honest among themselves . . . . Without such assurances, disputants may be unwilling to reveal relevant information and may be hesitant to disclose potential accommodations thаt might appear to compromise the positions they have taken.” Final Report of the Supreme Court Task Force on Dispute Resolution 23 (1990); see also Prigoff, supra, 12 Seton Hall Legis. J. at 2 (“Compromise negotiations often require the admission of facts which disputants would never otherwise concede.“). Indeed, mediation stands in stark contrast to formal adjudication, and even arbitration, in which the avowed goal is to uncover and present evidence of claims and defenses in an adversarial setting. Mediation sessions, on the other hand, “are not conducted under oath, do not follow traditional rules of evidence, and are not limited to developing the facts.” Rinaker v. Superior Court, 62 Cal. App. 4th 155, 74 Cal. Rptr. 2d 464, 467 (1998). Mediation communications, which “would not [even] exist but for the settlement attempt,” are made by parties “without the expectation that they will later be bound by them.” Prigoff, supra, 12 Seton Hall Legis. J. at 2, 13. Ultimately, allowing participants to treat mediation as a fact-finding expedition would sabotage its effectiveness. See id. at 2 (warning that routine breaches of confidentiality would reduce mediation to “discovery device“).
If mediation confidentiality is important, the appearance of mediator impartiality is imperative. A mediator, although neutral, often takes an active role in promoting candid dialogue “by identifying issues [and] encouraging parties to accommodate each others’ interests.” Id. at 2. To perform that function, a mediator
. . .
There is a growing body of evidence that mediation is particularly successful at facilitating settlement. See UMA Drafters’ Statement, supra, prefatory n. 2 (“[D]isputing parties often reach settlement eаrlier through mediation, because of the expression of emotions and exchanges of information that occur as part of the mediation process.“). A recent study of a court-mandated mediation program in New Jersey found that nearly 40% of matters diverted to mediation were resolved at the mediation or within three months afterward, most “with little or no discovery” and the concomitant expense to disputants. Report of the Committee on Complementary Dispute Resolution on the Evaluation of the Presumptive Mediation Pilot Program 2000-2004, at 1 (2005) [hereinafter Pilot Program Report]. Further, although some litigants who settle an acrimonious lawsuit may feel as though they have achieved nothing more than an “equitable distribution of dissatisfaction,” Rabb Emison, A Meditation on Mediation-
Defendant argues that the admission of the mediator‘s testimony would not “obliterate the whole dispute resolution process” because “[t]he only prejudice posed by Pastor Hall‘s testimony . . . was inconvenience to the mediator and the municipal court. Such inconvenience was relatively insignificant.” According to defendant, mediation participants cannot reasonably expect their assertions to be confidential because
Defendant‘s position trivializes the harm that will result if parties are routinely able to obtain compulsory process over mediators. Simply because the mediator does not actually testify against the victim (who is, by definition, a non-party to a State criminal prosecution) does not mean that the victim is unaffected by the prospect that his statements, made with assurances of confidentiality, will be used to exculpate the person who victimized him. In such circumstances, the victim could hardly be expected to trust that the mediator was impartial.
Numerous expressions of New Jersey policy reinforce the notion that statemеnts made during dispute resolution proceedings should remain confidential. For example, under the New Jersey Rules of Evidence, statements made by parties during settlement negotiations are generally inadmissible in subsequent proceedings,
B.
Beсause there is a substantial interest in protecting mediation confidentiality, we must consider defendant‘s need for the mediator‘s testimony. To ascertain whether that testimony is “necessary to prove” self-defense, we assess its “nature and quality.” See Garron, 177 N.J. at 165, 172-73, 827 A.2d 243.
The mediator‘s testimony in this matter does not exhibit the indicia of reliability and trustworthiness demanded of competent evidence. See State v. P.H., 178 N.J. 378, 389, 840 A.2d 808 (2004); United States v. Scheffer, 523 U.S. 303, 309, 118 S. Ct. 1261, 1265, 140 L. Ed. 2d 413, 419 (1998) (State “unquestionably [has] a legitimate interest in ensuring that reliable evidence is presented to the trier of fact in a criminal trial.“). Indeed, the mediator‘s description of the session gives the overall impression of bedlam, making it difficult to accurately attribute specific statements to individual speakers. For instance, the mediator explained that the mediation participants “started to raise their voices,” and all the parties were “talking аt the same time.” The mediator was forced to tell the participants to speak “only one person at a time,” but once a question was asked, “both of them start[ed].” During this exchange, the mediator recalled, “[o]ne is saying I picked you up and I threw you; the other one said there was a shovel, I picked
There are other indications that suggest that the mediator‘s testimony is not trustworthy. For example, although the mediator insisted that he and defendant were not “friend[s],” the mediator‘s appearance in the courtroom raises questions concerning his neutrality. The mediator, who lives on the same street as defendant‘s mother, attended the trial after defendant stopped by his house and informed him that the trial was about to begin. Then, defense counsel conferred with the mediator outside the courtroom, elicited his recollection of the mediation, and asked him to testify.
Furthermore, the mediator‘s testimony does not corroborate defendant‘s version of what transpired during the fight. Defendant testified that Bocoum hit him in the shoulder with the shovel, entitling defendant to defend himself. The mediator, however, testified that Bocoum said he “picked up the shovel . . . but he didn‘t make any hit with it.” Thus, even on the basic point of whether Bocoum hit defendant, the probative value of the mediator‘s testimony is diminished because it doеs not substantiate defendant‘s contention.1
. . .
Finally, by asking the mediator to divulge the disputants’ statements made during mediation, the defense induced the mediator‘s breach of confidentiality without first seeking the court‘s permis-
In sum, the mediator‘s testimony was not sufficiently probative to strengthen defendant‘s assertion of self-defense. In light of the importance of preserving the role of mediation as a forum for dispute resolution, we conclude that defendant‘s need for the mediator‘s testimony does not outweigh the interest in protecting mediation confidentiality.
C.
Apart from whether the need for the mediator‘s testimony outweighed the interest in confidentiality, we also consider whether defendant failed to demonstrate that evidence of Bocoum‘s use of the shovel was “not otherwise available.”
Both parties had аccess to, and presented at trial, substantial evidence from other sources bearing on the issue of self-defense. Although three state eyewitnesses testified that Bocoum did not have the shovel, defense counsel thoroughly cross-examined them in an effort to discredit that testimony. Further, Kia Williams, defendant‘s wife, testified that her brother Robert confessed to her that he had lied during his testimony and that Bocoum had, in fact, wielded the shovel. Finally, testifying on his own behalf, defendant related his version of the fight and accused Bocoum of
. . .
We note that defendant‘s own trial testimony recounted Bocoum‘s mediation statements about the shovel. Under the UMA, there is a serious question, however, whether defendant should have been allowed to testify at all regarding Bocoum‘s mediation communications. The UMA‘s confidentiality provision applies with equal force to a mediation participant, such as defendant, as it does to the mediator. See
That said, in an exchange with defense counsel at trial, defendant testified as follows:
Q. Okay. I asked you what did Brahima Bocoum say [at the mediation] . . . . What did Brahima Bocoum say happened?
A. Yeah. I told him he have a shovel. He said yes, he have the shovel.
Q. You heard Brahima Bocoum say he had a shovel?
A. Yeah.
Therefore, in this matter, the jury heard evidence of Bocoum‘s purported inconsistent statement.
D.
Defendant had the opportunity to present substantial evidence, including his own testimony regarding mediation communications, to support his assertion of self-defense and to cross-
V.
Ultimately, the trial court‘s rejection of defendant‘s proffer of the mediator‘s testimony rested upon the sound policy justifications underlying mediation confidentiality. Accordingly, we affirm the Appellate Division because defendant has not made the requisite showings to overcome the mediation privilege in this matter. Defendant‘s need for the mediator‘s testimony does not outweigh the interest in mediation confidentiality, and defendant has failed to show that the evidence was not otherwise available.
LONG, J., Dissenting.
The majority has essentially applied the rule we enunciated in State v. Garron, 177 N.J. 147, 171-72, 827 A.2d 243 (2003)-that where evidence is relevant and necessary to the defense of a criminal case, and cannot be otherwise obtained, it will not be shielded by a privilege. That is the proper paradigm for this case.
However, I disagree with the Court‘s conclusions regarding the “need” for the mediator‘s testimony and whether it was “otherwise available” within the meaning of
Defendant, the most interested of all witnesses, testified that Bocoum admitted during mediation that he had a shovel. If Bocoum made that admission, it was in direct conflict with his trial testimony and dramatically undercut his credibility on the fundamental issue in the case: self-defense. I disagree with the majority‘s conclusion that defense evidence on the subject obviated the need for the mediator‘s testimony.
The mediator‘s position as the only objective witness placed him in an entirely distinct role from the other witnesses in the case. See Model Jury Charge (Criminal), “Credibility of Witnesses,” (2002) (stating jury, “in determining whether a witness is . . . credible,” “may take into consideration . . . the possible bias, if any, in favor of the side for whom the witness testified“). The evidence that the mediator could have given was therefore different in kind from that of defendant. See Corkery v. Central R.R. of New Jersey, 43 A. 655, 655 (N.J.Sup.Ct.1899) (holding evidеnce “of a different kind and character” to be “not cumulative“); Van Riper v. Dundee Mfg. Co., 33 N.J.L. 152, 156 (Sup.Ct.1868) (defining cumulative evidence as “additional evidence to support the same point, and which is of the same character as evidence already produced“) (internal citations and quotation marks omitted). Because the mediator was the only witness without a proverbial “ax to grind,” his testimony was not “otherwise available,” nor was it cumulative. Indeed, it could have turned the tide in this very close case. Therefore, it was essential both to the defense of the criminal charges against defendant and to the very fairness of the trial. That was a sufficient basis on which to breach the mediator‘s privilege.
Finally, I believe that this Court overstepped its bounds in declaring that the mediator‘s testimony “does not exhibit the indicia of reliability and trustworthiness demanded of competent
Mediator: They were talking about the fight that they has. Carl [Williams] says that they went into a fight and they come together and he picked up the next gentleman and he threw him and they fell into a garbage bin, okay? He says-and I ask him did you use a weapon and he says no.
The other fellow says that it was a fight and there was a shovel at the door and he picked up the shovel and-but he didn‘t make any hit with it. The wife says that she threw her shoes at Carl.
They started to raise their voices. I says you know what? My part of this court is, if I started to ask questions, only one person at a time. And both of them start. I says okay, listen, let me-case closed. And I send it back to the judge.
Trial Judge: So you weren‘t able to get an account given by any one of them sitting down talking without other people talking at the same time?
Mediator: Both of them was talking at the same time. One is saying I picked you up and I threw you; the other one said there was a shovel, I picked up the shovel. And they were talking, going on. I says let the case close, send it back for trial. Because I‘m only there to settle the cases.
If I get settled, then I wrote it up, wrote a statement up, and I signed it; then both parties sign it and the judge signs it. They both get a copy and they go home, settled. If I doesn‘t settle it, then I send it back.
Trial Judge: Did you have any contact with any of them between the time you mediated it and last Friday?
Mediator: No. I don‘t even know the people here, if I saw them right now, the people might сome in, I wouldn‘t even know them, ‘cause I only-Carl, I met him the first time in court.
Trial Judge: Then you didn‘t see him again until last Friday?
Mediator: To be frank, I saw him before Friday, but we didn‘t have no contact with nothing like this case.
Trial Judge: Oh. Well, are you able to remember today who said that the one fellow had a shovel, whether Carl said he had a shovel or the guy said-
Mediator: The guy says he has a shovel; he picked up the shovel; it was some place at the door.
Trial Judge: It wasn‘t Carl that said the guy picked up the shovel?
Mediator: No. The next guy-I don‘t know his name; I don‘t remember his name-he said he‘s the one that picked up the shovel. It seemed like he picked
up-to my understanding, the little knowledge that I have-he picked up the shovel, but he didn‘t say he hit Carl with it or nothing. And they both started to wrestle.
[Emphasis added.]
There is nothing unclear about that testimony. Plainly, Bocoum admitted, in the mediator‘s presence, to wielding a shovel. That, in turn, rendered the mediator‘s testimony “relevant and necessary” to the defense. Any further concerns over the mediator‘s quality as a witness (e.g., ability to recollect or bias) went to the weight to be accorded to his testimony by the jury, not its admissibility. For all those reasons, I dissent.
Justice ALBIN joins in this opinion.
For affirmance-Chief Justice PORITZ and Justices LaVECCHIA, ZAZZALI, WALLACE and RIVERA-SOTO-5.
For reversal and remandment-Justices LONG and ALBIN-2.