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State v. Banta

Decided: November 23, 1982.

STATE OF NEW JERSEY, PLAINTIFF,
v.
ROBERT BANTA, DEFENDANT



MacKenzie, J.s.c.

Mackenzie

Defendant is on trial for criminal sexual contact with his stepdaughter, in violation of N.J.S.A. 2C:14-3 b. The 17-year-old girl testified that while she was in bed at night watching the movie Frankenstein, defendant climbed onto her bed and began to fondle her. Her testimony about the movie was definite and unequivocal. She remembered that defendant pointed out a particular character in the movie, Igor, for her to watch while the alleged incident took place.

Testifying in his defense, Banta denied any sexual contact with his stepdaughter. He also sought to discredit the testimony of the alleged victim by offering in evidence the television program guide from a daily newspaper. Frankenstein was not listed for showing on any of the local television channels.*fn1 Does a newspaper listing of television programs qualify for admission into evidence?

The general rule is that articles in newspapers and periodicals are inadmissible because of their hearsay character. E.g., Samuel Sheitelman, Inc. v. Hoffman, 106 N.J. Super. 353 (App.Div.1969), certif. den. 55 N.J. 591 (1970); State v. Otis Elevator Co., 10 N.J. 504 (1952). See, also, Annotation, "Newspaper article as evidence of the truth of the facts stated therein," 55 A.L.R. 3d 663 (1974). "Commercial publications and the like" are, however, exceptions to the hearsay rule. Evid.R. 63(30). This rule provides:

Evidence of a statement of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible to prove the truth of any relevant matter so stated if the compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them.

Defendant argues that the listing is admissible under this rule.*fn2

Since the adoption in New Jersey of the Rules of Evidence, two opinions have discussed the criteria contained in Evid.R. 63(30).*fn3 See State v. Lungsford, 167 N.J. Super. 296 (App.Div.1979) and State v. McGee, 131 N.J. Super. 292 (App.Div.1974). The theory of this exception to the hearsay rule is the "general reliance by the public or by a particular segment of it, and the motivation of the compiler to foster reliance by being accurate." State v. Lungsford, 167 N.J. Super. at 305.

In McGee the court rejected a computer report of a stolen gun from the National Crime Information Center because of insufficient proof to support the reliability of the data received. Similarly, in Lungsford lack of trustworthiness in the factory-trace information provided by the National Auto Theft Bureau about a stolen car barred admission. In both cases the State

failed to construct a satisfactory foundation to support admission of the specialized data it offered.

This court held a hearing out of the presence of the jury to determine admissibility of the television listings. Evid.R. 8(1). Defendant presented satisfactory proof that the guide is published for use of those who watch television and regard it as generally helpful in planning their viewing schedule. The newspaper is sold, not given away, and accordingly meets the test of being a "commercial publication." Still, the rule requires that the publication be addressed to those engaged in an "occupation."

"Occupation" is not listed in the portion of the Rules of Evidence, Evid.R. 62, which provides definitions for the hearsay rule. The comment which follows Evid.R. 63(30) suggests that "occupation . . . should be broadly construed." N.J. Rules of Evidence (Anno.1980), Comment 3 to Evid.R. 63(30). The State contends that "occupation" must be construed as implying a specific trade, calling or a profession. In my judgment that ...


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