2007 - 2009 REPORT OF THE SUPREME COURT COMMITTEE ON THE RULES OF EVIDENCE
January 30, 2009
i
TABLE OF CONTENTS
I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION
A. Proposed Amendment to N.J.R.E. 702, Testimony by Experts . . . . . . . . 1
B. Proposed Amendment to N.J.R.E. 102, Purpose and Construction . . . . .3
II. RULE AMENDMENTS CONSIDERED AND REJECTED
A. Amendment to N.J.R.E. 104, Preliminary Questions . . . . . . . . . . . . . . . . 4
B. Amendment to N.J.R.E. 701, Opinion Testimony of Lay Witnesses . . . . .5
C. Amendment to N.J.R.E. 703, Bases of Opinion Testimony by Experts . . 6
D. Amendment to N.J.R.E. 705, Disclosure of Facts or Data Underlying
Expert Opinion; Hypotheses Not Necessary . . . . . . . . . . . . . . . . . . . . . . .7
E. Adoption of N.J.R.E. 706, Court Appointed Experts . . . . . . . . . . . . . . . . .8
F. Amendment to N.J.R.E. 803(c)(2), Excited Utterance Exception to the
Hearsay Rule – State v. Branch, 182 N.J. 255 (2008) . . . . . . . . . . . . . . . 9
G. Sanitization of Prior Convictions, State v. Hamilton,
193 N.J. 255 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
III. MATTERS HELD FOR CONSIDERATION
A. Proposed Amendment to N.J.R.E. 704, Opinion on Ultimate Issue . . . .12
B. Proposed Amendment to the N.J.R.E. 504, Lawyer-Client Privilege . . . 12
IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
1
I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION
A. Proposed Amendment to N.J.R.E. 702, Testimony by Experts
The Supreme Court Committee on the Rules of Evidence (Committee), at
the suggestion of its chair, created a subcommittee to study whether N.J.R.E.
702, Testimony by Experts, should be amended to express a clear standard for
the admission of expert testimony. After the subcommittee was formed, the
Committee received letters from the New Jersey Lawsuit Reform Alliance, the
New Jersey Defense Association, the Association of Corporate Counsel, and the
Chemistry Council of New Jersey urging the Committee, among other things, to
amend N.J.R.E. 702 to language similar to the current text of F.R.E. 702, which
had been revised in 2000 in light of Daubert v. Merrell Dow Pharm., 509 U.S.
579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). These organizations claimed
that this change would “ensure that expert evidence admitted in civil trials is the
product of sound methodology and sound scientific principles.” Letter from the
New Jersey Defense Association, November 7, 2008.
For many years, the exclusive standard in New Jersey for the admissibility
of expert testimony was whether there was general acceptance of the expert’s
opinion or theory within the relevant scientific or professional community; a
standard that was originally developed in Frye v. United States, 293 F. 1013
(D.C. Cir. 1923). State v. Moore, 188 N.J. 182, 206-07 (2006); Rubanick v. Witco
Chem. Corp. 125 N.J. 421, 432-33 (1991). In Rubanick, supra, 125 N.J. at 449,
the Supreme Court began to move away from this “general acceptance”
standard, at least for expert testimony on causation in toxic tort cases. There, the
Court held: “[I]n toxic-tort litigation, a scientific theory of causation that has not
yet reached general acceptance may be found to be sufficiently reliable if it is
based on a sound, adequately-founded scientific methodology involving data and
information of the type reasonably relied on by experts in the scientific field.”
Ibid. Ten years later, the Court applied this more relaxed standard of Rubanik to
the admission of expert testimony on causation in a medical malpractice case.
Kemp v. State, 174 N.J. 412, 430 (2002).
Most recently, in Hisenaj v. Kuehner, 194 N.J. 6, 17-18 (2008), the Court
considered the reliability of the expert testimony of a biomechanical engineer
offered by the defendant in a personal injury automobile accident case. The
Court succinctly set forth the standard for determining reliability:
Scientific reliability of an area of research or expertise
may be established in one of three ways. When an
expert in a particular field testifies that the scientific
community in that field accepts as reliable the
foundational bases of the expert's opinion, reliability
2
may be demonstrated. Scientific literature also can
evidence reliability where that "literature reveals a
consensus of acceptance regarding a technology." So
long as "comparable experts [in the field] accept the
soundness of the methodology, including the
reasonableness of relying on [the] underlying data
and information," reliability may be established.
Rubanick, supra, 125 N.J. at 451, 593 A.2d 733.
Finally, a party proffering expert testimony may
demonstrate reliability by pointing to existing judicial
decisions that announce that particular evidence or
testimony is generally accepted in the scientific
community.
[Hisenaj, supra, 194 N.J. at 17 (citations omitted,
except Rubanick).]
The three ways of establishing reliability discussed by the Court are
largely drawn from cases discussing the Frye general acceptance standard.
However, the quotation from Rubanick makes clear that that multi-faceted
reliability standard has been added as an alternative to the Frye general
acceptance standard. See also State v. Jenewicz, 193 N.J. 440, 454 (2008)
(applying reliability standards to the admissibility of an expert in a criminal case).
So, the holdings in Rubanick and Kemp would appear to apply not only to
determining causation in toxic tort and medical malpractice cases, but every civil
and criminal case in which expert testimony is offered.
In light of these cases, the Committee decided it is time to explicitly
incorporate this reliability standard evolving from our State’s case law into the
Rules of Evidence. The Committee recommends that N.J.R.E. 702 be amended
to provide (additions underlined):
If scientific, technical or other specialized knowledge
will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion
or otherwise, provided that the basis for the testimony
is generally accepted or otherwise shown to be
reliable.
In the Committee’s opinion, this additional language accurately reflects the
current state of the developing case law in New Jersey. This additional
language continues general acceptance as a sufficient basis for the admission of
expert testimony in New Jersey, but also acknowledges that under Rubanick,
Kemp, and Hisenaj, novel or relatively new theories may be shown to be reliable
3
through other means. The Committee believes that explicitly articulating this
reliability standard in the rule will promote consistency in the admission of expert
testimony at the trial level. It will also be more convenient for trial lawyers and
judges to have the standards of admissibility expressed more fully in the text of
the Evidence Rules.
After much deliberation, the Committee rejected the suggestions of the
above-listed organizations to amend N.J.R.E. 702 to follow the 2000 amendment
to F.R.E. 702. The Committee reasoned that if the exact language of F.R.E. 702
was adopted, since the federal rule was intended to incorporate Daubert, it would
create the erroneous impression that the Daubert standard governed the
admission of expert testimony in New Jersey. Further, the Committee was
concerned that New Jersey judges would be too inclined to be guided by the
federal case law interpreting F.R.E. 702 and Daubert. The federal cases, the
Committee thought, are sometimes overly restrictive in the admission of expert
testimony, tending to exclude evidence that, under current New Jersey law,
would be properly admitted as having a reliable basis. See e.g. Edward K.
Cheng & Albert H. Yoon, Does Frye or Daubert Matter? A Study of Scientific
Admissibility Standards, 91 Va. L. Rev. 471, 473 (2005).
In addition, the Committee agreed that a revision of N.J.R.E. 702 that did
not literally track the text of the revised F.R.E. 702 would signal that our state
courts were retaining the prerogative to develop and apply reliability and expert
admissibility concepts in an independent fashion, without automatically following
federal precedents under Daubert or the federal rule. Consequently, a particular
expert’s testimony barred by a federal court under Daubert might still be
admissible in New Jersey under N.J.R.E. 702, or vice-versa.
B. Proposed Amendment to N.J.R.E. 102, Purpose and Construction
The Civil Union Law, L. 2006, c. 103, and the Domestic Partnership Act, L.
2003, c. 246, extend the legal protections of marriage to other types of familial
relationships. N.J.S.A. 37:1-32; N.J.S.A. 26:8A-2. As part of the Civil Union
Law, N.J.S.A. 37:1-33 provides:
Whenever in any law, rule, regulation, judicial or
administrative proceeding or otherwise, reference is
made to "marriage," "husband," "wife," "spouse,"
"family," "immediate family," "dependent," "next of
kin," "widow," "widower," "widowed" or another word
which in a specific context denotes a marital or
spousal relationship, the same shall include a civil
union pursuant to the provisions of this act.
To comply with this statute, and to take into account the existence of civil
unions and domestic partnerships, the Committee recommends that the
4
Supreme Court amend N.J.R.E. 102, Purpose and Construction, to add
subsection (b) as follows (additions underlined):
Rule 102. Purpose and Construction
(a) These rules shall be construed to secure fairness
in administration and elimination of unjustified
expense and delay. The adoption of these rules shall
not bar the growth and development of the law of
evidence to the end that the truth may be ascertained
and proceedings justly determined.
(b) As used in these rules, references to “marriage,”
“husband,” “wife,” “spouse,” “family,” “immediate
family,” dependent,” “next of kin,” “widow,” “widower,”
“widowed,” or to any other word or phrase that, in a
specific context, denotes a marital or spousal
relationship, shall include a civil union, as established
by N.J.S.A. 37:1-28 to -32, and a registered domestic
partnership, as established by N.J.S.A. 26:8A-1 to -
10, and the persons in those relationships.
This recommendation is consistent with the one that the Civil Practice
Committee is making to amend R. 1:1-2, Construction and Relaxation, so that the
Rules of Court will be interpreted to include civil unions and domestic
partnerships.
II. RULE AMENDMENTS CONSIDERED AND REJECTED
A. Amendment to N.J.R.E. 104, Preliminary Questions
As noted, the Committee received letters from the New Jersey Lawsuit
Reform Alliance, the New Jersey Defense Association, the Association of
Corporate Counsel, and the Chemistry Council of New Jersey asking that
N.J.R.E. 104 be amended to add a new subsection that would deal exclusively
with expert qualification hearings. Specifically, the organizations proposed the
following addition to N.J.R.E. 104:
(f) Expert Qualification Hearing. If a witness in a
civil matter is testifying as an expert, then upon
motion of a party, the court shall hold a hearing to
determine whether the witness qualifies as an expert
and whether the expert’s testimony satisfies the
requirements of Rule 702. The court should allow
sufficient time for a hearing before the start of trial and
shall rule on the qualifications of the witness to testify
5
as an expert and on whether the proposed testimony
satisfies the requirements of Rule 702. The trial
court’s ruling shall set forth the findings of fact and
conclusions of law upon which the order to admit or
exclude the expert evidence is based.
The Committee rejected this proposal. The Committee believed that this
amendment would unduly restrict a trial court’s ability to manage cases. It is
important that a court has the discretion to determine when and if it would be
helpful to hold N.J.R.E. 104 hearings on expert testimony. The proposed
amendment would take that discretion away. The Committee concluded that the
current text of N.J.R.E. 104 and existing case law, see, e.g., Hisenaj v. Kuehner,
supra, 194 N.J. at 23, provides trial courts with the necessary flexibility and
therefore should not be disturbed.
B. Amendment to N.J.R.E. 701, Opinion Testimony of Lay Witnesses
The Committee also considered whether it should amend N.J.R.E. 701,
Opinion Testimony of Lay Witnesses, to conform to the current text of F.R.E.
701. N.J.R.E. 701 provides:
If a witness is not testifying as an expert, the witness’
testimony in the form of opinions or inferences may
be admitted if it (a) is rationally based on the
perception of the witness and (b) will assist in
understanding the witness’ testimony or in
determining a fact in issue.
This rule followed the pre-2000 version of F.R.E. 701. In 2000, the federal
rule was amended to add subsection (c) (additions underlined):
If the witness is not testifying as an expert, the
witness' testimony in the form of opinions or
inferences is limited to those opinions or inferences
which are (a) rationally based on the perception of the
witness, and (b) helpful to a clear understanding of
the witness' testimony or the determination of a fact in
issue, and (c) not based on scientific, technical, or
other specialized knowledge within the scope of Rule
702.
After a discussion, the Committee came to the conclusion that the current
text of N.J.R.E. 701 was adequate and that it was unnecessary to adopt the
changes that had been made to F.R.E. 701.
6
C. Amendment to N.J.R.E. 703, Bases of Opinion Testimony by Experts
The Committee considered adding the language from F.R.E. 703, adopted
in 2000, to N.J.R.E. 703. N.J.R.E. 703 provides:
The facts or data in the particular case upon which an
expert bases an opinion or inference may be those
perceived by or made known to the expert at or
before the hearing. If of a type reasonably relied
upon by experts in the particular field in forming
opinions or inferences upon the subject, the facts or
data need not be admissible in evidence.
New Jersey adopted F.R.E. 703 verbatim in 1993. In 2000, additional
language was added to F.R.E. 703 (additions underlined):
The facts or data in the particular case upon which an
expert bases an opinion or inference may be those
perceived by or made known to the expert at or
before the hearing. If of a type reasonably relied upon
by experts in the particular field in forming opinions or
inferences upon the subject, the facts or data need
not be admissible in evidence in order for the opinion
or inference to be admitted. Facts or data that are
otherwise inadmissible shall not be disclosed to the
jury by the proponent of the opinion or inference
unless the court determines that their probative value
in assisting the jury to evaluate the expert's opinion
substantially outweighs their prejudicial effect.
The Committee considered whether it should add the language from the
2000 amendment to the federal rule to allow New Jersey to stay consistent with
the federal provision. The Committee reached a consensus that although the
additional language is consistent with current New Jersey law, there is no problem
with the current version of N.J.R.E. 703. Therefore, the Committee concluded
that no amendment was needed at this time.
7
D. Amendment to N.J.R.E. 705, Disclosure of Facts or Data Underlying
Expert Opinion; Hypotheses Not Necessary
The Committee considered whether it should amend N.J.R.E. 705 to
conform to F.R.E. 705. The main difference between the two rules is the third
sentence in N.J.R.E. 705, which followed N.J. Evid. R. 58 verbatim and has no
federal analogue. N.J.R.E. 705 provides:
The expert may testify in terms of opinion or
inference and give reasons therefor without prior
disclosure of the underlying facts or data, unless the
court requires otherwise. The expert may in any
event be required to disclose the underlying facts or
data on cross-examination. Questions calling for the
opinion of an expert witness need not be hypothetical
in form unless in the judge’s discretion it is so
required.
In contrast, F.R.E. 705 provides:
The expert may testify in terms of opinion or
inference and give reasons therefor without first
testifying to the underlying facts or data, unless the
court requires otherwise. The expert may in any
event be required to disclose the underlying facts or
data on cross-examination.
The third sentence in N.J.R.E. 705 reflects the slightly more flexible
approach of the New Jersey evidence rules on the matter of framing questions to
expert witnesses. Nonetheless, the New Jersey rule maintains the discretion of
the judge to require hypothetical questions, if that would be more helpful to the
jury. The Committee concluded that N.J.R.E. 705 should not be amended.
8
E. Adoption of N.J.R.E. 706, Court Appointed Experts
The Committee considered whether to adopt a New Jersey rule parallel to
F.R.E. 706, Court Appointed Experts, which provides:
(a) Appointment. The court may on its own motion or on
the motion of any party enter an order to show cause
why expert witnesses should not be appointed, and
may request the parties to submit nominations. The
court may appoint any expert witnesses agreed upon
by the parties, and may appoint expert witnesses of
its own selection. An expert witness shall not be
appointed by the court unless the witness consents to
act. A witness so appointed shall be informed of the
witness' duties by the court in writing, a copy of which
shall be filed with the clerk, or at a conference in
which the parties shall have opportunity to participate.
A witness so appointed shall advise the parties of the
witness' findings, if any; the witness' deposition may
be taken by any party; and the witness may be called
to testify by the court or any party. The witness shall
be subject to cross-examination by each party,
including a party calling the witness.
(b) Compensation. Expert witnesses so appointed are
entitled to reasonable compensation in whatever sum
the court may allow. The compensation thus fixed is
payable from funds which may be provided by law in
criminal cases and civil actions and proceedings
involving just compensation under the fifth
amendment. In other civil actions and proceedings the
compensation shall be paid by the parties in such
proportion and at such time as the court directs, and
thereafter charged in like manner as other costs.
(c) Disclosure of appointment. In the exercise of its
discretion, the court may authorize disclosure to the
jury of the fact that the court appointed the expert
witness.
(d) Parties' experts of own selection. Nothing in this
rule limits the parties in calling expert witnesses of
their own selection.
9
In 1991, during the major revision of the New Jersey Rules of Evidence,
the Committee decided not to adopt this federal rule. The Committee reasoned,
at that time, that the power of a court to appoint expert witnesses is one of
practice and procedure, not part of the law of evidence. The Committee stated in
its 1991 rule comment that the court rules and case law adequately provided for
the power of a court to appoint experts.
In revisiting this issue, the Committee reached the same conclusion that it
did in 1991, deciding that a New Jersey analogue to F.R.E. 706 is unnecessary.
F. Amendment to N.J.R.E. 803(c)(2), Excited Utterance Exception to the
Hearsay Rule—State v. Branch, 182 N.J. 338 (2005)
In State v. Branch, 182 N.J. 338, 371-72 (2005), the Supreme Court asked
the Committee to study whether the excited utterance exception to the hearsay
rule should be altered so that such hearsay is admissible only if the declarant
testified or was unavailable. After extensive discussion, the Committee
concluded that there was no need to amend N.J.R.E. 803(c)(2), in light of
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004),
and its progeny. In a criminal trial, under Crawford, if the excited utterance is
testimonial and offered by the State against the accused, then it may not be
admitted unless the accused had had a prior opportunity to cross-examine the
declarant and the declarant was unavailable at trial.
10
E. Sanitization of Prior Convictions, State v. Hamilton, 193 N.J. 255
(2008)
N.J.R.E. 609 permits the introduction of certain prior criminal convictions
of a witness: “For the purpose of affecting the credibility of any witness, the
witness’ conviction of a crime shall be admitted unless excluded by the judge as
remote or for other causes. Such conviction may be proved by examination,
production of the record thereof, or by other competent evidence.” In State v.
Brunson, 132 N.J. 377, 391 (1993), the Supreme Court held that in those cases
where a defendant had previously been convicted of crimes that are the same or
similar to the crime charged, the State may introduce evidence of those prior
convictions limited to the date, degree and number of the offenses.
In State v. Hamilton, 193 N.J. 255, 257 (2008), defendant was convicted
of third-degree drug possession. At trial, defendant asked the court to sanitize
his recent prior convictions for manslaughter and weapons charges, because his
arrest for drug possession took place in connection with the suspicious death of a
woman, who was later found to have died of a drug overdose. Id. at 257-58.
Defendant feared the prior conviction evidence would unduly prejudice the jury
against him. Ibid. The trial court held that it could not sanitize the conviction,
because it was not the same or similar to the one with which defendant was
charged. Id. at 261.
The Court reversed, holding that although sanitization was not mandatory
under Brunson, the trial court had discretionary authority to control undue
prejudice to defendant. Id. at 268-69. The Court then referred to this Committee
the following question:
In holding as we do, we do not suggest at this
juncture that Brunson should be extended
expansively to require sanitization for all prior
convictions or even for a particular subcategory of
offenses, such as those that do not involve
dishonesty, false swearing and the like. See supra at
note 7 (noting that some jurisdictions differentiate
between types of offenses when allowing convictions
to be used for permissible impeachment purposes).
We are ill-equipped in this appeal to consider such
steps, which were not advanced by defendant, and
about which we lack the benefit of the experience and
views of relevant interest groups. However, the
subject of sanitization, and its appropriate use by the
trial courts, would benefit from a full examination. Our
Evidence Rules Committee is well-suited to take up
that task. Accordingly, we refer to the Committee the
11
question whether sanitization of prior convictions
should be expanded and, if so, the extent to which the
Committee recommends an expanded category of
mandatory, or of discretionary, sanitization of prior
convictions.
[Brunson, supra, 132 N.J. at 269-70.]
The Committee considered this question at length. It decided not to consult
outside interest groups on this issue, in so much as the relevant groups have
representatives on the Committee. The Committee concluded that it would be difficult
to draft a rule that would set forth the exact parameters of a sanitization rule, either
mandatory or discretionary, and recommends that these parameters continue to be
developed, as they have up to this point, through case law. The Committee also
concluded that the need for a rule revision would be reviewed as experience warrants.
.
12
III. MATTERS HELD FOR CONSIDERATION
A. Proposed Amendment to N.J.R.E. 704, Opinion on Ultimate Issue
The Committee held for consideration the issue of whether N.J.R.E. 704
should be amended to add subsection (b), as was added to F.R.E. 704 in 1984
(additions underlined):
(a) Except as provided in subsection (b), [t]estimony
in the form of an opinion or inference otherwise
admissible is not objectionable because it embraces
an ultimate issue to be decided by the trier of fact
(b) No expert witness testifying with respect to the
mental state or condition of a defendant in a criminal
case may state an opinion or inference as to whether
the defendant did or did not have the mental state or
condition constituting an element of the crime
charged or of a defense thereto. Such ultimate
issues are matters for the trier of fact alone.
In 1991, the Committee decided not to include subsection (b) in the New
Jersey rule, because it thought that the subsection was contrary to New Jersey
law. The current Committee, however, decided to revisit this issue in its next
term.
B. Proposed Amendment to the N.J.R.E. 504, Lawyer-Client Privilege
The Committee held for consideration the issue of whether N.J.R.E. 504,
the Lawyer-Client Privilege, should be amended to protect information regarding
whether and when a client consulted with a lawyer.
13
IV. CONCLUSION
The members of the Supreme Court Committee on the Rules of Evidence
appreciate the opportunity to serve the Supreme Court in this capacity.
Respectfully submitted,
Hon. Harvey Weissbard, J.A.D. (ret.), Chair
Hon. Sylvia B. Pressler, P.J.A.D. (ret.), Vice-Chair
Wanda M. Akin, Esq.
Akinyemi T. Akiwowo, Esq.
Robert E. Bonpietro, Esq.
Hon. Theodore I. Botter, P.J.A.D. (ret.)
John C. Connell, Esq.
Norma R. Evans, Esq.
Prosecutor Thomas S. Ferguson
Professor Kimberly Ferzan
Benjamin Goldstein, Esq.
Hon. Jamie D. Happas, J.S.C.
Hon. James C. Heimlich, J.S.C.
James Hely, Esq.
Hon. Sherry Hutchins Henderson, J.S.C.
Hon. Paul Innes, J.S.C.
Hon. Michael Patrick King, P.J.A.D. (ret.)
Michelle Lebovitz Lamar, Esq.
Hon. Thomas M. McCormack, J.S.C.
Professor Denis F. McLaughlin
Hon. Dennis R. O’Brien, J.S.C.
Christine D. Petruzzell, Esq.
Daniel J. Pomeroy, Esq.
Jacqueline M. Printz, Esq.
Joseph J. Rodgers, Esq.
Hon. Garry S. Rothstadt, J.S.C.
Hon. Jack M. Sabatino, J.A.D.
Rubin M. Sinins, Esq.
William B. Smith, Esq.
Hon. Edwin H. Stern, P.J.A.D.
Christopher Struben, Esq.
Hon. Mark A. Sullivan, Jr., J.S.C.
John Vazquez, Esq.
Alan L. Zegas, Esq..
Carol Ann Welsch, Esq., Evidence Committee Staff
