For affirmance -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For reversal -- None. The opinion of the Court was delivered by Conford, P.J.A.D., Temporarily Assigned. Hughes, C.J., concurring in the result.
The facts and circumstances of this case are adequately stated in the reported opinion of the Appellate Division and need not be repeated here. Suffice it to say that plaintiffs suffered an adverse jury verdict in an action to recover damages for injuries sustained by the infant plaintiff, when, as a member of an elementary school gym class playing softball, he was struck in the mouth by a bat propelled through the air by a classmate, the infant defendant Lopez, in the course of swinging at a pitched ball. The Appellate Division affirmed the consequent judgment.
There were proofs sufficient to permit the jury to find either way on the factual issues of negligence by the infant defendant and breach by the defendants school board and McCrowhan (the teacher) of their duty to exercise reasonable supervisory care for the safety of students.
The question raised on appeal which motivated our grant of certification herein, 67 N.J. 72, was whether a party may offer extrinsic proof of bias or interest of an adverse witness without first cross-examining the witness on the subject. The Appellate Division construed Evid. R. 20, taken in the light of Evid. R. 22, as calling for an affirmative conclusion on the issue. We have never been called upon to speak to the subject.
We point out preliminarily that at the trial defendants' attempt to show bias of plaintiffs' supporting schoolboy witnesses through direct examination of the defendant Lopez was not objected to by plaintiffs on the ground asserted on appeal -- failure to have first cross-examined those witnesses for bias -- but only on the baseless ground of immateriality. Had the point now asserted been made at trial, the trial judge might in his discretion have granted plaintiffs a short continuance, if needed, to permit their recall of the witnesses in rebuttal to meet the proof of bias.*fn1 Moreover,
the record does not show that plaintiffs could not have recalled the witnesses in question or the infant plaintiff himself to refute the claim of bias. For these reasons we would be loath to reverse on the ground asserted even if sound as a matter of law. Cf. State v. Macon, 57 N.J. 325, 333 (1971).
It would appear that most jurisdictions hold that before extrinsic evidence of a witness's bias can be introduced that witness must first be asked about the facts of alleged bias on cross-examination. McCormick, Evidence (2d ed. 1972), § 40, p. 80. Annot. 87 A.L.R. 2d 407 (1963). The principal reasons given for the majority rule are that it gives the impugned witness an opportunity to explain what would otherwise appear to be evidence of bias and that it may save time by making the extrinsic evidence unnecessary. McCormick, op. cit. supra, at 80.
We find no express holding on the point in New Jersey decisions either prior or subsequent to the effective date of the adoption of the Rules of Evidence -- September 11, 1967. Moreover, the subject, in contrast with that of the matter of need for a comparable foundation for contradiction of a witness by extrinsic proof of prior inconsistent statements by the witness, appears not to have had the conscious attention of those who submitted the principal studies of the rules of evidence prior to the adoption of the present rules in 1967. See Report of Committee on the Revision of the Law of Evidence to the Supreme Court of New Jersey (1955), 39-42, 46-64; Report of the Commission to Study the Improvement of the Law of Evidence (1956), 25-27; Report of the New Jersey Supreme Court Committee on Evidence (1963), pp. 59-65, 68-71. Compare 1972 Edition, New Jersey Rules of Evidence, annotation by State Rules of Court Review Commission, 70, 71, 81-83, 94-100.
In Roth-Schlenger, Inc. v. Schlenger, 121 N.J. Eq. 536, 537 (Ch. 1937), Vice-Chancellor Bigelow alluded with apparent
approval to the rule that the bias of a witness may be shown either by cross-examination or other proof, but that if the bias appears from statements of the witness rather than acts or circumstances the witness must first be questioned on the point before independent proof is admissible. In dictum the Appellate Division has implied the necessity of a qualifying cross-examination of the witness under attack without reference to the nature of the proofs demonstrating the bias. State v. Smith, 101 N.J. Super. 10, 13 (1968), certif. den. 53 N.J. 577 (1969);*fn2 Cf. State v. Miller, 113 N.J. Super. 1 (App. Div. 1971); In re Hamilton State Bank, 106 N.J. Super. 285 (App. Div. 1969); Lambeck v. Stiefel, 71 N.J.L. 320 (E. & A. 1904).
We think it is accurate to say that by virtue of statute and rule the present state of our law is that bias of a witness may be shown by extrinsic evidence without the necessity for prior cross-examination of the witness. Our conclusion rests on ...