# State v. Kemp > Supreme Court of New Jersey · June 16, 2008 · 195 N.J. 136 URL: https://www.frixlaw.com/law-library/cases/9758417 ## Case - **Full name:** State of New Jersey, Plaintiff-Respondent, v. Tykim Kemp, Defendant-Appellant - **Court:** Supreme Court of New Jersey - **Decided:** June 16, 2008 - **Citations:** 195 N.J. 136; 948 A.2d 636; 2008 N.J. LEXIS 794 - **Precedential status:** Published - **Opinion:** Concurrence by Albin - **Judges:** Long, Rabner, Lavecchia, Albin, Wallace, Rivera-Soto - **Cited by:** 41 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9758417 ## How later opinions describe it (automated extraction) - finding the police officer's opinion about the defendant's A-3549-19 29 truthfulness during his confession did not rise to the level of plain error on the grounds that the defendant elicited the opinion during cross-examination, defendant's concern was not the officer's opinio… - finding that even where testimony may implicate "the concerns[] interdicted by Bankston," a reversal is not required where the totality of the circumstances leads to the conclusion that admission of the evidence was harmless - finding that even where testimony may implicate "the concerns interdicted by Bankston," a reversal is not required where the totality of the circumstances leads to the conclusion that admission of the evidence was harmless - finding even where testimony may implicate "the concerns interdicted by Bankston," a reversal is not required where the totality of the circumstances leads to the conclusion that the admission was harmless - rejecting a similar claim and holding that admission of detective's "testimony in respect of 20 A-4254-17T3 his skepticism concerning defendant's explanation was [not] 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result that it otherwise mi… ## Opinion text Justice ALBIN, concurring. I concur in the resolution of this case. I write separately to express my belief that the time has come for this Court to *158 abandon its reliance on the discredited doctrine of res doctrine that persists even though the reason for its existence has long since disappeared. Before the codification of our rules of evidence, res gestae had its place as part of our common law. Because the concepts embodied in res gestae are now codified in N.J.R.E. 404(b) and 803(c)(l)-(3), res gestae not only has outlived its usefulness, but seems to have no purpose other than as a means of evading the strict enforcement of our evidence rules. If res gestae is no more than the alter ego of N.J.R.E. 404(b) and 803(c)(l)-(3), then it adds nothing to our law of evidence. But if it is something more, then the result is that testimony inadmissible under the New Jersey Rules of Evidence, which may bear little relevance but create considerable prejudice, could be admitted under the fog of res gestae, a concept so formless that it allows almost any desired result. Res gestae, which is Latin for “ ‘things done,’ ” “generally refers to words and/or actions that ‘occur so close in time and substance’ to each other that they are considered part of the same happening, event or transaction” at issue in a criminal or civil case. Chris Blair, Let’s Say Good-bye to Res Gestae, 33 Tulsa L.J. 349 , 349 (1997) (quoting Black’s Law Dictionary 1305 (6th ed.1990)). As the doctrine of res gestae developed under the common law, it encompassed a number of exceptions to the hearsay sense impressions, excited utterances, and statements of then existing mental, emotional, or physical are now codified in our evidence rules as N.J.R.E. 801(e)(1)-(3). State v. Long, 173 N.J. 138, 166-67 , 801 A.2d 221 (2002) (Stein, J., concurring in part, dissenting in part) (citing Blair, supra, 33 Tulsa L.J. at 349-50); McCormick on Evidence § 268, at 206-07 (Strong ed., 4th ed.1992). Res gestae also became a vehicle for introducing other bad-acts evidence that was deemed integrally related to the charged criminal episode and necessary to give it context. Long, supra, 173 N.J. at 167 , 801 A.2d 221 (Stein, J., concurring in part, dissenting in part) (citing Blair, supra, 33 Tulsa L.J. at 350-51). *159 N.J.R.E. 404(b) now governs the admission of that type of evidence. 1 Today, our codified evidence rules provide explicit formulas, adopted by this Court and the Legislature, 2 for the admission of testimony and physical items into evidence. The tests embodied in those rules are refined to ensure that the evidence is relevant and is, that its probative value sufficiently outweighs any prejudicial impact. For example, evidence offered under N.J.R.E. 404(b) must pass the rigorous test set forth in State v. Cofield, 127 N.J. 328, 338 , 605 A.2d 230 (1992), and State v. Williams, 190 N.J. 114, 131-34 , 919 A.2d 90 (2007). Evidence admitted under N.J.R.E. 404(b) must also be accompanied by a limiting instruction to the jury explaining that the evidence may only be considered for the purposes specifically delineated in N.J.R.E. 404(b). See Williams, supra, 190 N.J. at 133-34 , 919 A.2d 90 . We also have precise standards for the admission of such hearsay statements as present sense impressions or excited utterances as exceptions to the hearsay rule. See N.J.R.E. 803(c)(1)-(2); State v. Branch, 182 N.J. 338, 365-67 , 865 A.2d 673 (2005) (defining elements of admissible excited utterances). Unlike modern hearsay exceptions contained within the New Jersey Rules of Evidence, res gestae has no clearly delineated definition that allows one to easily determine whether a proffered piece of evidence is admissible under the doctrine. Moreover, *160 because res gestae is a remnant of the common law, it appears that it is not subject to the procedural protections that inhere in our codified evidence rules. For example, in State v. Martini, 131 N.J. 176 , 619 A.2d 1208 (1993), overruled in part on other grounds by State v. Fortin, 178 N.J. 540 , 843 A.2d 974 (2004), the Court held that res gestae stands apart from the rule governing evidence of prior bad codified at N.J.R.E. 404(b). Martini, supra, 131 N.J. at 240-41 , 619 A.2d 1208 . Therefore, although we require that limiting instructions be given to the jury on the proper use of prior bad-acts evidence admitted under N.J.R.E. 404(b), no such limiting instructions are necessarily given to constrain the improper use of res gestae evidence. Martini, supra, 131 N.J. at 242 , 619 A.2d 1208 . Although the trial court in this case did not rely on res gestae to admit the disputed evidence at issue before us, the State, anticipating that we might not allow in the evidence under any of the provisions of the New Jersey Rules of Evidence, now asserts res gestae as a separate ground for its admission. I do not blame the State for attempting an alternate the codified evidence rules do not allow for the admission of desired testimony. It is the responsibility of the judiciary to close off end-runs around the strictures of our carefully crafted, codified evidence rules. See Jerome A. Hoffman, Res Gestae’s Children, 47 Ala. L.Rev. 73, 142 & n.383 (1995). 3 As early as 1881, Professor James B. Thayer described res gestae as a “‘convenient obscurity’” and criticized it for its “ ‘intolerable vagueness.’ ” Blair, supra, 33 Tulsa L.J. at 351-52 (quoting 6 Wigmore on Evidence § 1767 (Chadbourn rev. ed.1976)). In 1944, Judge Learned Hand observed that res gestae *161 “is a phrase which has been accountable for so much confusion that it had best be denied any place whatever in legal terminology; if it means anything but an unwillingness to think at all, what it covers cannot be put in less intelligible terms.” United States v. Matot, 146 F.2d 197, 198 (2d Cir.1944); see also McCormick on Evidence, supra, § 268, at 207 n.6 (citing Edmund M. Morgan, A Suggested Classification of Utterances Admissible as Res Gestae, 31 Yale L.J. 229 , 229 (1922)). I am not the first member of this Court to speak out against our continued acceptance of res gestae. I agree with Justice Stein’s assessment in Long, supra, that “the Court would be better served by abandoning continued reference to the phrase res gestae and replacing it with the precise analysis contemplated by our Rules of Evidence.” 173 N.J. at 170 , 801 A.2d 221 (Stein, J., concurring in part, dissenting in part). Justice Stein cited two well respected treatises on evidence law, Wigmore and McCor the most respected ones in the the proposition that res gestae is “archaic and largely superseded by specific exceptions set forth in the evidence rules.” Id. at 167 , 801 A.2d 221 . He cited the following critique in Wigmore: ‘‘The phrase res gestae has long been not only entirely useless, but even positively harmful. It is useless, because every rule of evidence to which it has ever been applied exists as a part of some other well-established principle and can be explained in the terms of that principle. It is harmful, because by its ambiguity it invites the confusion of one rule with another and thus creates uncertainty as to the limitations of both. It ought therefore wholly to be repudiated as a vicious element in our legal phraseology.” [ Id. at 167-68, 801 A.2d 221 (quoting 6 Wigmore on Evidence, supra, § 1767).] He also noted McCormick’s suggestion that res gestae “ ‘be jettisoned, with due acknowledgment that it served an era in the evolution of evidence law.’” Id. at 168, 801 A.2d 221 (quoting McCormick on Evidence § 268, at 196 (Strong ed., 5th ed.1999)). Other courts throughout the country have already come to the conclusion that res gestae is outdated, is no longer relevant, and should be discarded. See, e.g., Stephens v. Miller, 13 F.3d 998, 1003 (7th Cir.) (en banc), cert. denied, 513 U.S. 808 , 115 S.Ct. 57 , 130 L.Ed.2d 15 (1994); Miller v. Keating, 754 F.2d 507 , 509 & n. 1 *162 (3d Cir.1985); Wheeler v. United States, 211 F.2d 19 , 23 n. 11 (D.C.Cir.1953), cert. denied, 347 U.S. 1019 , 74 S.Ct. 876 , 98 L.Ed. 1140 (1954); State v. Gunby, 282 Kan. 39 , 144 P.3d 647, 661-63 (2006); State v. Hafford, 410 A.2d 219, 220-21 (Me.1980); B & K Rentals & Sales Co. v. Universal Leaf Tobacco Co., 324 Md. 147 , 596 A.2d 640, 644-45 (1991); Bynote v. Nat’l Super Mkts., Inc., 891 S.W.2d 117, 121 (Mo.1995); Horton v. State, 764 P.2d 674, 677 (Wyo.1988); see also State v. Hansen, 296 Mont. 282 , 989 P.2d 338, 352-54 (1999) (“The phrase res gestae, in itself, adds nothing but confusion to an already complex area of the law. The better practice is to abandon the use of the phrase altogether and to, instead, use the specific rule of evidence or statute that applies to the particular factual situation presented.”). 4 The Supreme Court of Hawaii recently joined that group of courts in recognizing the need to dispense with res gestae. In State v. Fetelee, 117 Hawai'i 53 , 175 709 (2008), that court noted that “certain concepts contained in the doctrine have been subsumed within the exceptions to the hearsay rules.” Id. at 736. The court also looked to the legislative history behind Haw. R. Evid. like N.J.R.E. 404(b), limits the use as evidence of a defendant’s other crimes or bad concluded that res gestae was “superseded by the adoption of’ that rule. Fetelee, supra, 175 P.3d at 737 . The court explained that allowing res gestae to survive “would be at odds with the legislative purpose of establishing the [Hawaii Rules of Evidence ] as a singular and primary source where all evidence rules are rationally organized.” Ibid, (citation and quotations omitted). On that basis, the court declared “that the res gestae doctrine is no longer a legitimate independent ground for admissibility of evidence.” *163 Ibid. The reasoning of the Hawaii Supreme Court applies with equal force here. Res gestae is the moldy cardboard box in the basement, whose contents no longer have any utility but which we nevertheless fear discarding. The time has come for us to rid our evidence rules of this ancient doctrine that no longer has any contemporary relevance. With the proper record before us, I look forward to our Court visiting this important issue. Justice LONG joins in this opinion. For reversal and Justice RABNER and Justices LONG LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO, NJ.R.B. 404(b) provides that [e]xcept as otherwise provided by [N.J.R.E.] 608(b), evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute. The role of the Court and the Legislature in adopting and amending the New Jersey Rules of Evidence is described at N.J.S.A. 2A:84A-33 to -44. An Alabama trial judge appropriately highlighted that concern: " 1 could possibly let the testimony in under the legal phrase that lawyers like to talk about as res gestae, which means ... if you can’t think of any other good reason to let something into evidence that's the one to try to travel under as an umbrella.' " Heard v. State, 351 So.2d 686, 689 (Ala.Crim.App.1977), quoted in Hoffman, supra, 47 Ala. L.Rev. at 143. Other jurisdictions, however, continue to cling to res gestae as a viable doctrine. See State v. Fetelee, 117 Hawai'i 53 , 175 P.3d 709, 724 (2008) (listing U.S. Courts of Appeals for the Fifth, Sixth, and Ninth Circuits, as well as high courts of Arkansas, Colorado, South Dakota, and Washington, as continuing to adhere to res gestae). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9758417. Public record. Not legal advice.