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Forfeiture by wrongdoing as an exception to the hearsay rule

By September 1, 2010

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New Jersey may be about to join a number of states which have adopted "forfeiture by wrongdoing" as an exception to the hearsay rule. The New Jersey Supreme Court has proposed that their state amend Rule 804(b) of the New Jersey Rules of Evidence (N.J.R.E.) to create a hearsay exception for "a statement offered against a party who has engaged, directly or indirectly, in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness." The rule is designed to prevent a party from benefiting from intimidating a witness out of testifying

In an article called N.J. Justices to Mull Hearsay Exception for Witnesses Cowed by Threats on Law.com, David Gialanella of The Legal Intelligencer reports that more than a dozen states have already adopted a similar rule by direct amendment to their rules of procedure or through court decisions. The rule has been in effect in federal courts for more than a decade.

What is your opinion about allowing allowing hearsay evidence into trials when the witness is unavailable due to the wrongdoing of one of the parties to the litigation? What kind of burden of proof do you think the proponent of such hearsay evidence should have to meet in order to establish that the other party caused the witness to be unavailable to testify? Share your thoughts in the Comments section below, or talk about the issue more in our Forum.

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