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BY ANNE MILGRAM
COMMENTARY
Witness intimidation is a pervasive threat to public safety. It erodes public confidence in the ability of law enforcement to protect its citizens. It chills witnesses from reporting crimes. It rewards and emboldens the most dangerous criminals. It undermines the integrity of the criminal justice system. And it happens far too often in New Jersey.
Prosecutors in federal court and in 31 other states have an important tool to combat witness intimidation. It is an evidentiary rule that allows a prosecutor to introduce at trial a witness's out-of-court statements against a defendant who intimidated that witness into not testifying. Recognized and approved by the U.S. Supreme Court for more than 130 years, the rule embodies the equitable principle that a defendant should not profit from his own wrongdoing.
Last Thursday (Dec. 10), the Senate had an opportunity to stand up on behalf of victims and witnesses and give prosecutors in New Jersey the ability to introduce such statements. The Assembly has already unanimously approved a resolution that granted prosecutors that ability.Unfortunately for victims and witnesses of crime, the overwhelming majority of Democrats in the Senate opted to support amended language that effectively guts the resolution.
The amendment, championed by Senator Nicholas Scutari, unconscionably limits the scope of the rule to a small subset of violent offenses. In every other jurisdiction, the rule is not limited to certain types of offenses. Here, the Senate version omits many offenses that gravely affect public safety, such as vehicular homicide, aggravated assault, human trafficking, carjacking, arson, racketeering, drug trafficking, and gun offenses.
Many of these offenses are the stock and trade of violent gangs. Indeed, a ten-year old child was killed in an arson fire that police suspect was in response to her parent's testimony in a drug trafficking case. The defendant was a gang leader. Neighbors and potential witnesses also refused to cooperate with law enforcement for fear of the same fate.
The Senate version also fails to include those offenses that damage the public trust, such as official misconduct and other public corruption offenses.
All of these omissions are unacceptable and indefensible.
After the vote, Senator Scutari stated that, out of concerns of fairness, "you have to be careful of the slippery slope" of modifying a defendant's right to confront witnesses. His stated reason for the amendment is disingenuous. The U.S. Supreme Court has expressly rejected that theory, and Senator Scutari's colleagues should, as well.
Additionally, a defendant's right to confront witnesses does not and should not hinge on the nature of the charged offense. To the contrary, the purposes of the rule apply regardless of the underlying charge against a defendant — to ensure that a defendant does not profit by his own wrongdoing, to protect witnesses from intimidation, and to advance the truth-seeking function of trials by providing reliable evidence that would otherwise be unavailable.
Intimidation is intimidation. It offends fundamental principles of fairness and justice to allow any defendant — no matter the crime — to profit from attempts to subvert justice by intimidating witnesses.
For these reasons, I cannot support the version passed by the Senate. It is an unacceptable dilution of an important tool, and would reward those defendants charged with a wide range of offenses that threaten the safety of our communities and the integrity of our democratic institutions.
The victims whose voices have been silenced through violence or intimidation to prevent their testimony deserve better.
And so do the people of New Jersey.
Anne Milgram is the Attorney General for New Jersey
