Witness Bolstering Testimony and Reversible Error | NJ Supreme Court

Submitted by New Jersey Lawyer, Jeffrey Hark

The State may not attack one witness’s credibility through another witness’s assessment of that credibility. At trial, a party may introduce evidence that an adverse witness is biased, and parties may demonstrate bias through extrinsic evidence. N.J.R.E. 607. Such extrinsic evidence may include statements or “utterances.” N.J.R.E. 803(c)(3) permits the admission of out-of-court statements that go toward a declarant’s state of mind.

With regard to this argument, the court opined as follows: “While C.G.’s credibility was clearly relevant, other witnesses are prohibited from giving their opinions about her credibility. See Frisby, supra, 174 N.J. at 591-96; Clausell, supra, 121 N.J. at 337-38. K.K.’s testimony violated this principle when she testified that she “believed” her sister, and that C.G. “wouldn’t be making things up if it was not bad.” K.K.’s testimony further violated this principle, when, in response to a question about whether or not C.G. told lies before, she testified “[n]ot like this. She would never lie about something like this.”

We nevertheless found the testimony plainly erroneous, noting that “[t]his case was a pitched credibility battle between [two individuals] on the pivotal issue of whether [one person] promised to care for [another]. Any improper influence on the jury that could have tipped the credibility scale was necessarily harmful and warrants reversal.” Id. at 596. This case calls for the same result. Here, like in Frisby, this case presented a “pitched credibility battle” between C.G. and defendant over who was telling the truth. As such, the improper witness bolstering was harmful to defendant and prejudiced his case.

Witness Bolstering Testimony and Reversible Error

Therefore, we conclude that the bolstering of witness testimony was prejudicial to defendant and constituted reversible error.   We also conclude that the testimony about the adverse witness’s bias was admissible. The proffered testimony that K.G.’s friend knew defendant had cheated on K.G., and apparently, that K.G. intended to leave him was not hearsay because it was not being offered for the truth that defendant was cheating or that K.G. planned to leave, but rather, to show that K.G. might have an interest to lie about defendant. We therefore find that excluding the bias testimony was also reversible error.

Read the entire case here.

For additional reviews of this case, please read:

Tender-Years exception to the hearsay rule

When Examination of Fresh Complaint Evidence is Necessary

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