Joseph F. Walsh, J.c.c., Temporarily Assigned.
A motion is made in a criminal proceeding to have read into the record the testimony of an unavailable witness, under the provisions of Evid. R. 63 (3)(b), which reads in part insofar as it is pertinent:
Subject to Rule 64 and to the same limitations and objections as though the declarant were testifying in person, and where the declarant is unavailable as a witness, testimony is admissible, if * * * (b) in a criminal proceeding, the testimony was given by the declarant personally as a witness in a former trial of a criminal proceeding in which the issue was such that the present defendant had
the right and opportunity for cross-examination with an interest and motive similar to that which he has in the present proceeding.
The indictment charges defendant Ewings with pointing a gun at the now absent witness, after which he returned to his car. The car circled the area for awhile, during which time the now absent witness called the police, causing the car to be stopped and searched. The gun was found on the only other passenger in the car, a lady friend of defendant, The woman was also indicted and she has since pleaded guilty.
The State's theory of the case on the opening to the jury is that defendant used the gun, returned to the car, and when he realized he was being stopped by the police, transferred the gun to the woman passenger.
It would appear that the testimony sought to be introduced was taken at a probable cause hearing before a municipal magistrate in the City of Newark, at which time defendant was present and represented by counsel who participated fully and completely in the cross-examination of the now unavailable witness.
Section (b) of Evid. R. 63, as it is presently enacted, was reported first as Evid. R. 63 (3)(c) in substantially the same manner as it was finally reported.
The Report of the N.J. Supreme Court Committee on Evidence, addressed to that particular section, admonished the users of the rule that the drafters of the Uniform rule indicated they had not addressed themselves to constitutionality, and that Evid. R. 63 as proposed had been drafted with the problem of constitutionality in view.
The committee posed the question of the right of confrontation guaranteed by the Sixth Amendment and answered that certain aspects of the Sixth Amendment did apply. In their report the Committee pointed out that constitutionality had never been decided by our Supreme Court, but that since N.J. Const. (1947), Art. I, par. 10, is identical to the Sixth Amendment of the Federal Constitution,
it seemed appropriate to consider federal law on the issue as well as New Jersey law as presently exists, and to discuss federal law as though it were applicable to the New Jersey constitution. They reasoned that it was well accepted that the Sixth Amendment incorporated pre-existing hearsay exceptions and that the use of dying declarations, business entries, official written statements and the like ...