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A Roadmap to the Proper Admission of Nontestimonial Documents

On behalf of Cohn Lifland Pearlman Herrmann & Knopf LLP | Feb 6, 2017 |


In State v. Wilson, the Supreme Court of New Jersey considered whether a map, admitted into evidence and prepared by the Union County Board of Chosen Freeholders, violated the Confrontation Clause of the Sixth Amendment to the United States Constitution, and the analogous provision in the New Jersey Constitution. The defendant was charged with second degree possession of CDS with intent to distribute in or within 500 feet of a public park. During the trial, the State sought to admit into evidence, among other documents, a map of Leggett Park and the surrounding area, which indicated the boundaries of the drug-free-zone around the park, and an affidavit by an assistant Union County Prosecutor offered for authentication. The defendant objected to the admission of these documents, challenging the authentication, and arguing that he did not have an opportunity to cross-examine the individuals involved in preparing the maps. The court disagreed and admitted the documents into evidence. The Appellate Division affirmed the conviction, holding that the map was nontestimonial evidence and that its admission did not violate the defendant’s confrontation rights.

The Supreme Court granted certification to consider the constitutional issues. The Court applied the “primary purpose” test, which stands for the proposition that the admissibility of a statement procured not with the primary purpose of creating an out-of-court substitute for trial testimony is a question of state and federal evidence rules, not the Confrontation Clause. Davis v. Washington, 547 U.S. 813, 822 (2006). The New Jersey Supreme Court, in analyzing the map in question here, found that the map was non-testimonial, focusing on (1) the objective and neutral qualities of the map in that it did not target a particular person, (2) that it did not conclusively establish the defendant’s guilt, but instead created a rebuttable presumption of the proximity of the drug transaction to the park, and (3) that the map was not created in response to a criminal event, but was created years before the commission of the defendant’s present offenses. However, the Court next turned to the admissibility of the map under New Jersey evidence rules, and found that although the map was admissible under N.J.R.E 803(c)(8) as a public record, that the proper authentication of a public record required a witness who could testify to its authenticity and be cross-examined on its preparation and accuracy. Since this was not done in defendant’s case, the map constituted inadmissible hearsay, and thus was improperly admitted. On this basis, the Court reversed the decision of the Appellate Division, and remanded the case back to the Superior Court for a new trial.