Sponsored by:
Assemblywoman ELLEN J. PARK
District 37 (Bergen)
Assemblywoman JESSICA RAMIREZ
District 32 (Hudson)
SYNOPSIS
Permits court to admit evidence of prior offenses in certain criminal prosecutions.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning admissibility of evidence in certain criminal prosecutions and supplementing Title 2C of the New Jersey Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. The Legislature finds and declares that:
a. Domestic violence accounts for a significant portion of law enforcement responses in New Jersey. According to the 2020 New Jersey State Police Domestic Violence Statistical Summary, there were 63,058 reports of domestic violence to law enforcement. Of those reports, law enforcement indicated that children actively were involved or present during 14,930 incidents, is equivalent to 24 percent of the domestic violence incidents. There were 12,669 domestic violence incidents involving prior orders issued against an offender, indicating prior acts of domestic violence that supported issuance of a restraining order;
b. Incidents of domestic violence often are extremely violent, witnessed by children, not prevented by restraining orders, and very difficult to prosecute. Criminal prosecution is an effective deterrent to domestic violence offenders; however, due to the difficulty in proving domestic violence cases, many cases are dismissed or downgraded to such reduced charges that the deterrent value is lost;
c. There are numerous challenges to successful prosecution of domestic violence offenses. Many victims become uncooperative for a variety of reasons, including fear, shame, immigration issues, as well as financial or emotional dependency. While these cases may still be provable with evidence separate from victim testimony, they are more difficult and more resource-intensive than cases in which the victims are willing and able to cooperate. Compounding the problem is the fact that domestic violence crimes often have less corroborating evidence than other crimes because they usually occur indoors, where the only witnesses are children and dependents who may be subject to the same abuse and control as the victim. There often are no recording devices and limited availability of corroboration outside of the victims report;
d. Child abuse is not included in the definition of domestic violence in New Jersey, but these prosecutions face the same challenges as domestic violence prosecutions. In fact, research related to co-occurrence of domestic violence and child abuse has established that children exposed to domestic violence are at increased risk for physical abuse and other forms of maltreatment. A majority of those studies indicate co-occurrence rates of 30 to 60 percent;
e. Current New Jersey rules of evidence, specifically Rule 404(b), bars admission of prior domestic violence acts of an alleged abuser, with very few exceptions. Thus, when a domestic violence crime is prosecuted, a jury will hear evidence of a specific incident in an informational vacuum where the only evidence may be the victims testimony, which is subject to cross examination by the alleged abusers attorney. Furthermore, the alleged abuser is entitled to invoke the Fifth Amendment right to silence, so that the abusers integrity is not questioned. As a result, even in situations with ongoing and escalating violence, evidence for criminal prosecution is extremely limited;
f. Negative gender stereotypes also weigh against criminal prosecution of these cases. Victims routinely delay reports of domestic violence and as a result suffer gross acts of emotional, financial, and physical violence before the involvement of law enforcement. In addition, the average juror may have difficulty understanding the behavior of the victim, because potential jurors who have experienced domestic violence themselves or through a loved one generally are dismissed for cause from jury service in domestic violence related cases;
g. Prosecution of sexual assault cases presents similar challenges to domestic violence cases. Offenders rarely commit sexual assaults in front of witnesses or with recording devices in use, so the availability of corroborating evidence tends to be limited. Furthermore, consent is a unique defense to sexual assault crimes. An offender can imply in cross-examination that a victim willingly participated in the sexual assault. This defense has been raised successfully even in sexual assault homicides involving strangulation. An offenders history of committing unwanted sexual assaults is extremely relevant to the plausibility of this defense, but it is almost always barred under Rule of Evidence 404(b);
h. Current New Jersey Rules of Evidence surrounding prosecution of sexual assault charges also cause unnecessary re-victimization. Recently, a Middlesex County Superior Court judge severed a sexual assault trial in which the defendant was charged with molesting two minors at separate times in the home when each childs mother was not present. The first set of allegations related to defendant molesting his step-daughter starting at the age of eight, from May 2013 to May 2017. The second set of allegations related to defendant molesting his three-year old niece in 2019. The judge severed the case and ordered the prosecutor to conduct two separate trials, one for each child abused. Trials are difficult and traumatic for witnesses and victims. This ruling undoubtedly negatively impacted the children who suffered at defendants hands and the family members of these unfortunate victims. Passage of this law would help limit the possibility of such severance;
i. Unlike New Jersey, the rules of evidence in a number of jurisdictions in the United States allow the admission of prior acts of domestic violence; including California, Alaska, Colorado, Illinois, Louisiana, Oregon, Texas and Wisconsin; and prior acts of sexual assault, including California, Alaska, Arizona, Florida, Illinois, Kansas, Louisiana, Maryland, Missouri, Nebraska, Texas, Virginia and Wisconsin. Some jurisdictions allow the evidence for any relevant purpose, such as propensity, while other jurisdictions allow this evidence to provide context to the existing relationship;
j. The proposed evidence rule changes would bring New Jersey in line with these other jurisdictions, and avoid unnecessary re-victimization from multiple trials in the future. For example, with respect to severance of cases involving more than one sexual assault victim, other acts of sexual assault would be admissible under the new rule of evidence; accordingly, there would be no undue prejudice in presenting evidence related to another victim of sexual abuse; and
k. Therefore, it is necessary and proper to revise New Jersey law to allow the admission of evidence of prior acts of domestic violence in domestic violence prosecutions, prior acts of child abuse in child abuse prosecutions, and prior sex offenses in sex offense prosecutions, which would provide relevant, probative evidence of an offenders guilt and refute common defenses that historically have enabled offenders to evade accountability. By bolstering the amount of compelling evidence available in these cases, the likelihood of successful prosecution of domestic violence, child abuse, and sex assault offenders will be increased, diminishing the serious public safety threat they present.
2. a. Notwithstanding the provisions of Rule 404 of the New Jersey Rules of Evidence or any other provision, in a criminal prosecution involving a sex offense, evidence of the defendants prior commission of any sex offenses may be introduced by the prosecution, although it may not be offered to prove conduct on a specific occasion and only may be admitted after a determination by the trial judge that the evidence is admissible under Rule 403 of the