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State v. Schlanger

Decided: October 15, 1984.

STATE OF NEW JERSEY
v.
ROBERT SCHLANGER, DEFENDANT



Wolin, J.s.c.

Wolin

The issue presented to this Court is whether defense counsel may in the presence of the jury ask a witness proffered by the State if his income tax returns filed for the operative years of an unlawful conspiracy*fn1 accurately and completely reflect all of his income, knowing that the witness will exercise his Fifth Amendment privilege and refuse to answer this particular question. In determining the answer to this question it is important to note that the witness is an unsentenced accomplice who, through a plea bargain, has agreed to testify for the State against a codefendant. There is no New Jersey case dealing directly with the resolution of this seemingly simple but rather complex evidential problem.

This Court is currently engaged in the trial of the above captioned matter. At its very outset a subpoena duces tecum was served by the defense on Angel Tejero, a codefendant, to produce several items before this Court including his personal income tax returns for the calendar years 1978 through 1983. They were produced and at a preliminary hearing Tejero indicated that if asked questions about his tax returns he would exercise his Fifth Amendment privilege. The Court directed

the delivery of the tax returns to the Court for in camera inspection and reserved all questions pertaining to his invoking the Fifth Amendment to a later stage in the proceedings. The trial has now advanced to that stage and it is the opinion of the Court that such an inquiry is precluded by Evid.Rule 55 and therefore does not require the exercise of Tejero's Fifth Amendment privilege in the presence of the jury.

Evid.Rule 55 provides:

Subject to Rule 47, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed a crime or civil wrong on another specified occasion but, subject to Rule 48, such evidence is admissible to prove some other fact in issue including motive, intent, plan, knowledge, identity, or absence of mistake or accident.

It is subject to Evid.Rule 47 which provides:

Subject to Rules 48 and 55, a trait of character offered for the purpose of drawing inferences as to the conduct of a person on a specified occasion may be proved only by: (a) testimony in the form of opinion, (b) evidence of reputation, or (c) evidence of conviction of a crime which tends to prove the trait. Specific instances of conduct not the subject of a conviction of a crime shall be inadmissible. In a criminal proceeding, evidence offered by the prosecution of a trait of character of the defendant on trial may be admitted only if the judge has admitted evidence of good character offered by the defendant. Character evidence offered by the defendant may not be excluded under Rule 4. The credibility of a character witness testifying on behalf of the defendant may not be impaired by an inquiry into his knowledge of the defendant's alleged criminal conduct not evidenced by a conviction.

Both of these rules are made subject to each other. The commentary to the Rules of Evidence describes their interrelationship as complex. Evid.R. 55 is a rule of exception and prohibits evidence that a person committed a crime on another occasion unless such evidence is relevant to prove some other fact in issue. Under Evid.R. 47 specific act evidence may not be admitted as proof of character unless the specific acts were the subject of a conviction for a crime tending to prove the character trait related to the case. Yet evidence barred under Evid.R. 47 may be admissible under Evid.R. 55 if it proves some other fact in issue. Further, specific instances of conduct offered to impeach the credibility of a witness should be excluded

under Evid.R. 22(d) where their proffer is intended only to discredit the witness by demonstration of his "bad character."*fn2 Surely from an analysis of these rules if such evidence is offered for some other articulable reason, it should be admitted unless excludable under another rule. State v. Coruzzi, 189 N.J. Super. 273, 306-307 (App.Div.1983). The commentary to Evid.R. 55 at page 332, states:

It has been said other crime evidence should be admitted only where it has real legal relevance to the action independent from its tendency to show a particular person to be generally disposed toward wrongdoing. Because of the tendency of the evidence to be highly ...


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