State v. Moore

Justice RIVERA-SOTO,

concurring in part and dissenting in part.

The majority reaches two separate conclusions: that, “in many respects the guidelines [under State v. Hurd, 86 N.J. 525 , 432 A.2d 86 (1981) governing the use of hypnotically refreshed testimony] again were not followed[,]” ante, 188 N.J. at 210, 902 A.2d at 1229 (2006); and that, notwithstanding Hurd and its progeny, “[t]oday we hold that in a criminal trial, hypnotically refreshed testimony of a witness generally is inadmissible in New Jersey[,]” ante, 188 N.J. at 207, 902 A.2d at 1227 (2006), a rule of exclusion that is inapplicable to a defendant’s testimony under Rock v. Arkansas, 483 U.S. 44, 61 , 107 S.Ct. 2704, 2714 , 97 L.Ed.2d 37, 52 (1987).

I concur with the majority’s conclusion that, in this case, the procedures followed in respect of the hypnosis of the victim violated the Hurd guidelines and, hence, the victim’s post-hypnotic *213 statements should be inadmissible. However, to the extent that the majority jettisons all hypnotically refreshed testimony save for that of a defendant, I dissent.

As the majority convincingly explains, the requirement that a defendant must be allowed to present his own hypnotically refreshed testimony is rooted in a defendant’s constitutional right to testify on his own behalf. Ante, 188 N.J. at 200-01, 902 A.2d at 1223 (2006). Although the majority hews to the view that a criminal defendant’s constitutional rights trump those of all others, ante, 188 N.J. at 211 n. 13, 902 A.2d at 1229 n. 13 (2006), I disagree. In New Jersey there are competing constitutional rights that must be recognized in this context. Our Constitution explicitly provides that “[a] victim of a crime shall be treated with fairness, compassion and respect by the criminal justice system.” N.J. Const. art. I, ¶ 22. Implicitly acknowledging that victims as a matter of right will be witnesses at criminal trials, the Constitution further provides that “[a] victim of a crime shall not be denied the right to be present at public judicial proceedings except when, prior to completing testimony as a witness, the victim is properly sequestered in accordance with law or the [Court] Rules----” Ibid. It further explains that “[a] victim of a crime shall be entitled to those rights and remedies as may be provided by the Legislature.” Ibid.

The Legislature implemented the mandates of paragraph 22 of Article I of the New Jersey Constitution by its adoption of the Crime Victim’s Bill of Rights, N.J.S.A. 52:4B-34 to -38. Among other things, that statute specifically provides that a crime victim is “entitled to the ... right ... [t]o be informed about the criminal justice process; ... [t]o have inconveniences associated with participation in the criminal justice process minimized to the fullest extent possible; ... [and t]o be notified if presence in court is not needed[.]” N.J.S.A. 52:4B-36b, d, and g. Sustaining these rights is the clear recognition that victims have the right to testify against the person who harmed them, and that such right is of constitutional dimension in New Jersey. 1

*214 In my view, a defendant’s constitutional right to testify on his own behalf and a victim’s constitutional right to testify against the one who stands accused of harming that victim cannot be of unequal constitutional dignity. If, then, the Constitution allows the barring of hypnotically refreshed testimony but requires that an exception be made for a defendant’s hypnotically refreshed testimony, there is no principled basis on which to treat a victim’s hypnotically refreshed testimony any differently than that of the defendant. In other words, if we abandon the principles of Hurd and conclude that, in general, hypnotically refreshed testimony is forbidden in New Jersey because of its demonstrated unreliability, then the same logic that compels an exception for a defendant’s hypnotically refreshed testimony likewise compels an exception for a victim’s hypnotically refreshed testimony.

Therefore, to the extent the majority only admits of an exception for a defendant’s hypnotically refreshed testimony, and does not allow a similar exception in respect of a victim’s hypnotically refreshed testimony, I respectfully dissent.

For affirmance and remandment — Chief Justice PORITZ and Justices LONG, LaVECCHIA, ZAZZALI, ALBIN and WALLACE — 6.

For concurrence in part/dissent in part — Justice RIVERA-SOTO — 1.

Tellingly, neither the Sixth Amendment to the U.S. Constitution nor paragraph 10 of Article I of the New Jersey Constitution explicitly grants a defendant *214 the constitutional right to testify on his own behalf. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. In fact, it is the opposite conclusion that obtains: a defendant in a criminal case cannot be compelled to testify against himself. Compare U.S. Const. amend. V ("No person ... shall be compelled in any criminal case to be a witness against himself[,J”) with State v. Deatore, 70 N.J. 100, 113 , 358 A.2d 163 (1976) ("The right not to be compelled to incriminate one's self arises in New Jersey, not from the State Constitution (as it does in most other states) but as part of the common law, confirmed by statute....'').