The defendant was previously convicted of a criminal offense and was placed on probation. He was subsequently charged with a violation of probation, was found to be in violation and was continued on probation. The State during trial sought to introduce as evidence the defendant's conviction and subsequent violation of probation, if the defendant testified, to attack his credibility. The nature of the conviction, the sentence, the violation of probation and resentence were not contested.
It is generally recognized that a defendant who takes the stand in his or her own behalf may be impeached by proof of former criminal convictions or the like. State v. Sands, 76 N.J. 127, 386 A.2d 378 (1978); quoting McGautha v. California, 402 U.S. 183, 215, 91 S. Ct. 1454, 1471, 28 L. Ed. 2d 711, 731 (1971). The rule that a prior conviction of a witness or an accused may be shown as bearing upon his/her credibility is generally acknowledged.
The New Jersey Supreme Court in Sands, supra, injected the concept of judicial discretion into the interpretation of N.J.S.A. § 2A:81-12.*fn1 While accepting the Legislature's position that, "in principle credibility may be affected by convictions of any
type of crime," Sands, 76 N.J. at 144, 386 A.2d 378, the Sands court concluded that the historical background and State v. Henson, 66 N.J.L. 601, 50 A. 468 (E. & A. 1901) did not support the inference that under every circumstance, all criminal convictions are automatically admissible as bearing on the credibility of the defendant. Id., 76 N.J. at 138, 386 A.2d 378. The Court rather held that whether a former conviction is admissible in evidence "rests within the sound discretion of the trial Judge."*fn2 Id. at 144, 386 A.2d 378.
Justice Schreiber, writing for the Sands court, embraced a balancing test grounded under N.J.Evid.R. 4 principles; is the probative value of the evidence substantially outweighed by the risk that the admission will either (a) necessitate undue consumption of time or (b) create substantial dangers of undue prejudice, confusing the issue or misleading the jury? The trial court is to weigh the lapse of time and the nature of the crime to determine whether the relevance as to credibility outweighs any prejudicial consequence to the defendant. Id. at 144-45, 386 A.2d 378. Ordinarily, admission of prior conviction evidence should be permitted, with the defendant bearing the burden to justify exclusion. Id. at 144, 386 A.2d 378.
An issue not raised in Sands and one of first impression in New Jersey is whether a defendant's probation revocation from a criminal conviction can itself be deemed a "conviction" for purposes of impeaching credibility under N.J.S.A. § 2A:81-12. Stated another way, can a witness' failure to abide by imposed probationary conditions and the subsequent revocation of that probationary status be utilized on cross-examination to impeach the witness' credibility.
An analysis as to the nature of revocation proceedings must be made to determine whether a probation revocation may be equated to a "conviction". Such an evaluation demonstrates that critical differences exist between criminal trials resulting in convictions and probation revocation hearings. One crucial difference is the potential effects and consequences of the two proceedings. A criminal trial may result in deprivation of an individual's absolute liberty, whereas revocation proceedings result in denial of an individual's conditional liberty which was available to that individual only upon observance of certain restrictions. State v. Generoso, 156 N.J. Super. 540, 384 A.2d 189 (App.Div.1978). Moreover, a violation of the conditions of probation is not a criminal offense in itself, and the proceeding to revoke that status is not a criminal prosecution. Id. at 546, 384 A.2d 189, quoting Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 1759, 36 L. Ed. 2d 656 (1973). See also State in the Interest of D.G.W., 70 N.J. 488, 506, 361 A.2d 513 (1976). The United States Supreme Court has also discussed the informal and flexible nature of probation revocation proceedings and the lack of need for the constitutional protections afforded to defendants in criminal trials. Morrissey v. Brewer, 408 U.S. 471, 499, 92 S. Ct. 2593, 2609, 33 L. Ed. 2d 484 (1972). See also State v. Reyes, id., 207 N.J. Super. at 139, 504 A.2d 43. As a result of these inherent differences, the entire gambit of due process standards and evidence rules generally applicable to criminal trials are not required elements of revocation proceedings. Generoso, 156 N.J. Super. at 546, 384 A.2d 189. See also State v. Johnson, 133 N.J. Super. 457, 337 A.2d 387 (App.Div.1975).
Perhaps the most noteworthy discrepancy between the two types of proceedings is the fact that each requires application of a different standard of proof. State v. Reyes, 207 N.J. Super. 126 at 137, 504 A.2d 43 (App.Div.1986) held that a court may not find a violation of probation unless the defendant has been convicted of another offense or the court is satisfied by a preponderance of the evidence that the defendant has inexcusably
failed to comply with a substantial requirement imposed as a condition of probation. This standard is less than the reasonable doubt standard applied for a criminal conviction. It is this variation which serves as a contributing factor in the courts of Texas decisions to disallow offers of evidence concerning probation revocation in efforts to discredit a defendant who takes the stand.*fn3 See generally Hernandez v. State, 599 S.W. 2d 614 (Tex.Crim.App.1980), which held it was error to permit impeachment of a witness with a violation of the terms of probation. "A violation of the conditions of probation need be proved only by a preponderance of the evidence, not beyond a reasonable doubt, (as is required for a conviction, a suspended sentence, or a judgment granting probation)." Cross v. State, 586 S.W. 2d 478, 481 reh. den. (Tex.Crim.1979); See also Baehr v. State, 615 S.W. 2d 713, 715-16 reh. den. (Tex.Crim.App.1981); Hernandez v. State, 599 S.W. 2d 614, 615 (Tex.Crim.App.1980). The Texas judiciary reasons that since "probation revocation proceedings are administrative in ...