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State v. Washington

Decided: June 5, 1985.


On appeal from Superior Court of New Jersey, Law Division, Bergen County.

Fritz, Gaulkin and Long. The opinion of the court was delivered by Fritz, P.J.A.D.


[202 NJSuper Page 189] This case implicates a question, novel in New Jersey, respecting the admissibility of videotaped depositions in a criminal trial. Because of the nature of the question and the current and topical issues involving other but similar uses of videotaping including, but not limited to, the sequestered "live" videotaping of child victims of sexual abuse in lieu of actual appearance during a hearing (see L. 1985, c. 126), we pause at the outset to emphasize the limited extent of our exploration of the matter. Although counsel for defendant offers a number of reasons for rejecting the proffered deposition, such as the argument that the Bergen County Police Academy is not the "most appropriate" place for the taking of the deposition, it is

clear that both below and here the only legal issue raised respecting the offer of the depositions in evidence was a Sixth Amendment confrontational one. This was posited as the only issue in the written opinion of the trial judge on the State's motion for leave to take the deposition. Here it is presented in an insistence that "the court's order permitting the video taped de bene esse deposition of Mr. Tombak violated defendant's right of confrontation and cross examination." Accordingly, our determination as far as the deposition is concerned is limited to the question of admissibility of pretrial videotaped depositions de bene esse as against Sixth Amendment confrontational objections.*fn1

It is not our purpose to explore other ramifications of videotaped presentations nor to consider other questions which might impact upon the admissibility of any proffered evidence (such as, for instance, relevance, chain of possession, authentication, professional qualification, etc.) including depositions and documentary or demonstrative evidence. Except in the presence of controlling law, the latter considerations are generally left to the sound discretion of the trial judge, Purdy v. Nationwide Mut. Ins. Co., 184 N.J. Super. 123, 130 (App.Div.1982) and cf. 4:14-9, as we have left them in this case. We are persuaded, however, that the confrontational issue comes within the purview of legal questions and that is the one we here decide.

As to that question, with Judge Minuskin in the trial court, we are satisfied that there is no constitutional impediment to the taking of these depositions and their admission at the trial.

The witness deposed was a victim of the armed robbery with which defendant is here charged. The trial judge made the following findings in the opinion by which he granted leave to the State to take the deposition:

In support of the motion the State has established that the victim, Michael Tombak cannot appear in court due to a severe cardiac condition. At a prior court hearing he sustained a heart attack requiring hospitalization. The trial date was adjourned several times in anticipation of his recovery. This has not occurred and his physician states that he cannot appear because of his illness. The matter is listed peremptorily on a date certain to be tried or dismissed. The victim's testimony is essential to the State's case.

These facts are not challenged. Irrespective of this, they might reasonably have been reached on sufficient credible evidence in the whole record as a result of which we would not disturb them in any event. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474 (1974).

The right of an accused "to be confronted with the witnesses against him" is protected in New Jersey not only by the application of the Sixth Amendment to the United States Constitution to the States through the Fourteenth Amendment, but by a parroting of that language in the Constitution of New Jersey. N.J. Const. (1947), Art. I, par. 10. Distilled in the relatively recent case of Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), the purposes of the constitutional protection afforded by the confrontation clause are "a preference for face-to-face confrontation at trial" and a securing of the right of cross-examination. 448 U.S. at 63, 100 S. Ct. at 2537. At the outset we observe that the United States Supreme Court thereby distinguishes between the desirability, expressed in terms of "preference," of face-to-face courtroom confrontation and the "secured" right of cross-examination. This alone suggests that the confrontation guaranteed by the clause is not necessarily one in a courtroom. But see California

v. Green, 399 U.S. 149, 157-158, 90 S. Ct. 1930, 1934-1935, 26 L. Ed. 2d 489 (1970). But the matter was not left to inference in Ohio v. Roberts. There it is expressly held that "competing interests, 'if closely examined,' [citation omitted], may warrant ...

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