State v. Duprey – New Jersey Domestic Violence Case

Submitted by: New Jersey Domestic Violence Lawyer, Jeffrey Hark.

State v. Duprey,
___ N.J. Supser. ___,
Docket No. A-5469-10T4 (App. Div. August 1, 2012)

In a recent decision, the Appellate Division has ruled that testimony given during a domestic violence hearing may be now be used to impeach the credibility of the domestic violence complainant and defendant if and when they testify at a criminal proceeding arising out of the same facts. In State v. Duprey, the Appellate Division ruled that N.J.S.A. 2C:25-29(a) should not be read to bar the use of such testimony for impeachment purposes to best achieve the legislature’s intended goals. In that case, the defendant, Duprey, sought to use the transcript of domestic violence proceedings against him as affirmative evidence and as impeachment evidence during his related criminal trial for assault and terroristic threats. Duprey, Slip. Op. at 3. After several hearings and opposition by the State, the trial court ruled that the transcripts of the Domestic Violence matter could be used at the criminal trial ONLY for impeachment purposes, both against the plaintiff in the DV matter and against Duprey should he choose to take the stand. Id. at 4. The State then appealed that decision.

The Appellate Division, in considering the statute, rejected the contention that this was a pure matter of statutory interpretation, instead finding that it implicated important facets of the Confrontation Clause of the United States and New Jersey Constitutions. Turning first to the text of the statute, N.J.S.A. 2C:25-29(a) states,

If a criminal complaint arising out of the same incident which is the subject matter of a complaint brought under [the DV Act] has been filed, testimony given by the plaintiff or defendant in the domestic violence matter shall not be used in the simultaneous or subsequent criminal proceeding against the defendant, other than domestic violence contempt matters and where it would otherwise be admissible hearsay under the rules of evidence that govern where a party is available.

Id. at 7. In interpreting this clause, the Appellate Division recognized that the intent of the statute was “to facilitate simultaneous or subsequent criminal proceedings unimpacted by the DV action[.]” Id. at 8 (internal citations omitted). The Division also noted the overall purpose of the DV Act to protect the interest of DV victims. Id.

Setting aside the exceptions as inapplicable to Duprey’s matter, the Appellate Division first dealt with Duprey’s allegation that the statute only prevented the use of the DV testimony against the defendant. The Division specifically noted that the phrase “against the defendant” followed “criminal proceeding” and not “Shall not be used.” Id. at 9. As such, the contention that only the defendant was “protected” by the statute is a misreading of the text of the statute.

Instead, the Division viewed the prohibition of the statute as being broadly written and applying to any use of such testimony at the criminal trial. Id. So broad a reading, however, the Appellate Division held, “would interfere with a criminal defendant’s rights under the Confrontation Clause.” Id. Specifically, if the DV plaintiff were unavailable, her testimony could be used at trial through N.J.R.E. 804(b)(1); while if that same plaintiff did testify at the criminal trial, the defendant would be prohibited from confronting that plaintiff with her prior sworn testimony for impeachment purposes. Id. at 10.

In so noting, the Appellate Division looked to the statements of the New Jersey Supreme Court in State v. Guenther, 181 N.J. 129, 147-48 (2004), that a defendant’s right to confrontation is best expressed through cross-examination, and as such that cross examination should not “bow to the mechanistic application of a state’s rules of evidence or procedure [that] would undermine the truth-finding function [of cross examination].” Id. at 10-11. The Appellate Division also noted that the Court in Guenther recognized a difference between specific and general attacks on credibility (those couched on general assumptions such as that convicts are less trustworthy than general citizens) and specific attacks on credibility (such as showing the bias, prejudice, or ulterior motives of the witness). Id. at 11-12.

Applying those principles, the Appellate Division concluded that

The trial testimony of a DV complainant must be available for use by the defendant during cross-examination to impeach contradictory or inconsistent testimony that is material to the charges against the defendant, or to show bias, prejudice, or ulterior motives on the part of the witness.

Id. at 12-13. The proponent of such evidence need not demonstrate that such evidence is “the only available evidence” nor that it relates to “a critical issue.” Id. at 13. The Division couched this holding by noting that

A trial judge shall exercise discretion in precluding lines of inquiry that he or she finds relate solely to “general impeachment.” The “ultimate question” for the trial judge in making that determination is whether exclusion serves the interests of fairness and reliability.

Id. (internal citations omitted). The Appellate Division also ruled that should the defendant choose to take the stand and be subject to cross-examination, he would be subject to use of his DV testimony for impeachment purposes to the same extent as the DV plaintiff. Id. The Appellate Division noted that this interpretation of the statute comports with the intent of the statute, as there was no reason to believe that the legislature intended the statute to allow a DV defendant to testify falsely at a subsequent criminal trial without fear of impeachment. Id. at 15. Ultimately, Duprey stands for the proposition that testimony taken at a DV hearing may be used for impeachment purposes against plaintiff or defendant in a subsequent or simultaneous criminal action.

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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