State v. Abrams
State v. Abrams
Concurring in Part
Temporarily Assigned, concurring and dissenting. To the extent that the Appellate Division determination, affirmed ,by this court, reverses the conviction, I am in accord. I do not agree, however, with the holding that the entirety of the Smith statement is necessarily admissible as a matter of law on behalf of the defendant.
At the retrial there should first be a clarification of the exact tenor of the Smith statement. In addition to the version set forth in the Appellate Division opinion, there is other indication in the record that the statement was:
I, Chenille Smith, sold Ernest a bag of cocaine. But I never got nothing from Barry. Also, I never introduced Barry to Ernest.
Admissibility of a statement under the hearsay exception contained in Evid. R. 63 (10), commonly known as declarations against interest, depends, generally, upon whether the
Distinguish the situation where only one crime was committed, so that inculpation of himself by a declarant has the tendency to exculpate another on trial for the offense. Report of the New Jersey Supreme Court Committee on Evidence (1963) 168, 171; 5 Wigmore on Evidence § 1477, pp. 358-359 (1974); State v. Jamison, 64 N. J. 363, 372-373 (1974); Newberry v. Commonwealth, 191 Va. 445, 61 S. E. 2d 318 (Sup. Ct. App. 1950).
If, however, a correct appraisal of the entire document were that it was essentially a single, integral statement such that the trustworthiness of the portion admitting liability rubbed off on the portion absolving Abrams of connection with the criminal transaction, it should be admissible. In a slightly different application of the underlying problem, where a statement had both disserving and self-serving aspects, it was held for the trial court to determine whether, “on the whole the disserving interest preponderates in probable influence”, making it admissible. Appleget v. Van Hise, 44 N. J. Super. 507, 520 (Ch. Div. 1957), commented upon in Brooks, “Evidence”, 14 Rutgers L. Rev. 390, 415-417 (1960).
The Appellate Division opinion makes the point that the portion of the statement exculpatory of Abrams has a self-disserving aspect in that it “intensifies [Smith’s] personal criminal responsibility for the transaction” in suggesting that she was not merely Abrams’ partner in the drug sale. This seems somewhat tenuous, but, to the extent that it may be valid, should merely be another element for appraisal of the latter portion of the document for trustworthiness. On the other hand, some weight could properly be accorded by the judge to the fact that the instant statement was in writing, thus suggesting the possibility of deliberation and a calculated decision by the declarant to exculpate Abrams for reasons not necessarily connected with the truth of the matter.
At the trial herein, the admissibility issues discussed in the Appellate Division opinion were never presented to the judge. The defendant failed to cite Evid. R. 63 (10) or the principle of the hearsay exception for declarations against interest in defense of the admission of the entire statement. I would direct the trial judge, at the retrial of this case, to consider the admissibility of the statement in the light of the language and purpose of Evid. R. 63 (10) and to admit the portions exculpatory of Abrams only if he finds them sufficiently trustworthy because of their association with the self-inculpatory first sentence of the statement. In that regard I would point out to him, however, that the probative weight of the statement is for the jury and not for the judge as an element of admissibility.
For affirmance — Chief Justice Hughes and Justices Mountain, Sullivan and Pashman — 4.
Concurring in part and dissenting in part — Justices Clifford and Schreiber and Judge Conford — 3.
Opinion of the Court
The judgment is affirmed substantially for the reasons expressed in the opinion of the Appellate Division.
Concurring in Part
concurring and dissenting. The issue before the Court in this case is skewed slightly from the direction of State v. Powers, 72 N. J. 346 (1977), also decided this day. The question there as I saw it was whether the hearsay statements were inculpatory of the declarant in the sense of so far exposing him to criminal liability that but for their truth the declarations would not have been made. My view was that the trial judge’s conclusion that they
Under the circumstances of this case I would leave that inquiry with the sound discretion of the trial judge. I therefore concur in Judge Conford’s opinion, which would direct the trial judge to determine admissibility of the statement (s) in keeping with the language and purpose of Evid. R. 63(10).
Justice Schreiber joins in this opinion.
Reference
- Full Case Name
- State of New Jersey, Plaintiff-Appellant, v. Barry Abrams, Defendant-Respondent
- Cited By
- 29 cases
- Status
- Published