 


                                                     SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                                    State v. Thomas L. Scott (A-86-15) (077434)

Argued February 27, 2017 -- Decided June 28, 2017

TIMPONE, J., writing for the Court.

          This appeal raises the issue of whether a defendant’s mother, who purportedly lied to law enforcement
officers twice in the past in order to assist her son in evading prosecution, may be cross-examined on those prior
instances as evidence of her bias.

          On November 27, 2012, Lauren Halbersberg, defendant’s friend, and Jordan Scott, defendant’s cousin and
known drug user, were at defendant Thomas L. Scott’s apartment. According to Halbersberg, Darlene Barbella,
defendant’s mother, visited defendant’s apartment and noticed two packets of heroin lying on a table in the living
room. She took the packets, placed them in the pocket of a pair of jeans that were lying on the couch next to Jordan,
and returned the jeans to the couch. Halbersberg added that, during this time, defendant prepared to shower, lacking
any knowledge of the heroin placement. After showering, defendant retrieved from the couch the jeans now
containing two packets of heroin and put them on. Defendant left shortly thereafter. Halbersberg concluded by
testifying that because of the “commotion,” she failed to warn him of the heroin in his jeans.

         Detective Zotti observed defendant leave his apartment. Zotti knew defendant from previous arrests. Zotti
approached defendant and started a conversation. In the meantime, dispatch advised Zotti of an active arrest warrant
for defendant. Zotti made the arrest, conducting a search incident to the arrest, which yielded the two packets of
heroin. While being escorted to a patrol car, defendant uttered, “I did not know that the heroin was in my pocket, I
have not worn these pants in weeks, I would have eaten it, if I had known I had it on me.”

         A grand jury indicted defendant for third-degree possession of heroin. Defendant filed a motion in limine,
seeking a preliminary ruling on the admissibility of the testimony of his mother, Barbella, from an interview she
gave to an investigator for the public defender’s office a little over a year after the incident.

          During that interview, Barbella noted that Jordan was lying on the couch and that she spotted the packets of
heroin and put them into the front pocket of the jeans lying on the couch right next to Jordan. Because of their
proximity to Jordan, Barbella assumed the jeans were his. Barbella further stated that Jordan returned to her home
later that day banging on the side door, shouting, “Tommy got arrested . . . . Tommy’s got my drugs and money.”

          In response, the State sought to introduce evidence that, in two previous instances, Barbella lied to officers
in order to “cover up” for defendant. As the State recounted the first instance, Barbella told officers that defendant
was not home, but they later entered the house and found defendant. In the second instance, Barbella allegedly gave
a written statement to police regarding defendant’s involvement in a burglary, which she later admitted was false.

         After hearing arguments from both parties, the trial court ruled that the State’s evidence regarding “Ms.
Barbella[’s] . . . propensity to cover up her son’s wrongdoings” was “highly relevant” and therefore “admissible
both on cross examination and on rebuttal if she elects to take the stand.” The defense made no further objections to
the ruling. Instead, defendant made a tactical decision not to call Barbella and called Halbersberg, who gave
testimony strikingly similar to that expected from Barbella. Defendant was convicted as charged.

          The Appellate Division affirmed the trial court’s in limine ruling. The panel held that the evidence was
admissible to impeach Barbella through bias—a position adopted by the State for the first time on appeal.
Alternatively, the panel reasoned that any error was harmless on two fronts: (1) Barbella’s testimony was
cumulative of Halbersberg’s; and (2) the State could have presented the same bias argument through evidence of
familial relationship alone. The Court granted defendant’s petition for certification. 227 N.J. 22 (2016).

                                                           1
                                                             
 


HELD: The evidence proffered by the State goes far afield of a proper bias inquiry. The evidence is inadmissible
under the dictates of New Jersey Rules of Evidence 403 and 608, which govern admissibility of prior bad acts and
character evidence for truthfulness. That error prevented defendant from fully developing his defense at trial and
deprived the jury of key witness testimony. Exclusion of testimony central to a defendant’s claim or defense, if
otherwise admissible, cannot be held to be harmless error.

1. As a preliminary question, the Court discusses whether the State was permitted to raise a different justification
for admissibility on appeal. Because the current record is not “barren of facts that would shed light on [the] issue,”
State v. Witt, 223 N.J. 409, 418 (2015), it is appropriate to review the bias argument. (pp. 10-12)

2. New Jersey’s Rules of Evidence preclude the use of specific instances of conduct to attack the credibility of a
witness, N.J.R.E. 405, unless the prior act was a “false accusation against any person of a crime similar to the crime
with which defendant is charged,” N.J.R.E. 608. The Rules do not explicitly discuss bias as a permissible means of
impeachment; however, this Court has long found the use of bias to attack a witness’s credibility proper. Where a
party seeks to demonstrate bias, it may do so by introducing extrinsic evidence. (pp. 13-15)

3. The query, as it relates to bias, is “the relationship between a [defendant] and a witness.” United State v. Abel,
469 U.S. 45, 52 (1984). The relationship between defendant and Barbella could have been probed by eliciting the
fact that Barbella was defendant’s mother or asking whether she would lie to protect her son. That is the permissible
limit of the State’s inquiry into her bias. The only other reason for which the State could have proffered the prior-
acts testimony is to show Barbella’s character for untruthfulness. Even if Rule 608 did not specifically bar the
proffered evidence, its probative value was substantially outweighed by its prejudicial nature. The trial court abused
its discretion in ruling that the proposed impeachment testimony was admissible against Barbella. (pp. 15-17)

4. Although the prior-bad acts evidence was ultimately not admitted, defendant paid a significant price to keep it
out. The evidentiary error here deprived the jury of the opportunity to evaluate Barbella’s tone, manner, and body
language, and accordingly, to assess her credibility. An error resulting in the jury’s inability to assess the credibility
of the defense’s key witness is ordinarily not harmless. Nor is Barbella’s testimony merely cumulative. Rather, it is
corroborative. Both testimonies are critical to the defense; the synergy of the two make the theory significantly
more plausible. The trial court’s in limine ruling altered defendant’s trial strategy, precluding him from
presenting—and the jury from assessing—a key witness. The error was harmful. (pp. 17-20)

         The judgment of the Appellate Division is REVERSED and the matter is remanded for a new trial.

          CHIEF JUSTICE RABNER, CONCURRING, notes that most modern courts follow the common law
tradition and permit questioning about specific instances of conduct that are probative of a witness’s character for
truthfulness and opines that it is time to consider whether Rule 608 should be revised to allow cross-examination, in
a controlled fashion, into specific instances of conduct that are probative of the witness’s character for truthfulness.

         JUSTICE ALBIN, CONCURRING, writes separately to address the proposal that New Jersey should
align N.J.R.E. 608 with its federal counterpart. That would allow the use of specific instances of untruthfulness to
impeach a witness’s character for veracity and would also encourage parties to forage for impeachment evidence, in
Justice Albin’s view. Justice Albin sees no sound justification for abandoning New Jersey’s common-law rule.

          JUSTICE PATTERSON, CONCURRING IN PART AND DISSENTING IN PART, agrees that the
trial court’s ruling was error but parts company with the majority with respect to the question of harmless error.
According to Justice Patterson, Barbella’s testimony would not have afforded defendant a trial strategy that was
unavailable to him in her absence. The strategy was employed—and it failed. Barbella’s testimony would have
undermined an already farfetched theory and done the defense more harm than good, in Justice Patterson’s view.

         CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA and ALBIN join in JUSTICE
TIMPONE’s opinion. CHIEF JUSTICE RABNER filed a separate, concurring opinion, in which JUSTICES
PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join. JUSTICE ALBIN filed a separate,
concurring opinion, in which JUSTICE LaVECCHIA joins. JUSTICE PATTERSON filed a separate,
partially concurring and partially dissenting opinion, in which JUSTICES FERNANDEZ-VINA and
SOLOMON join. 

                                                            2
                                                              
 



                                      SUPREME COURT OF NEW JERSEY
                                        A-86 September Term 2015
                                                 077434

STATE OF NEW JERSEY,

     Plaintiff-Respondent,

          v.

THOMAS L. SCOTT (a/k/a JAMES
LONGENBERGER, and CHRISTOPHER
TUREAUD),

     Defendant-Appellant.


          Argued February 27, 2017 – Decided June 28, 2017

          On certification to the Superior Court,
          Appellate Division.

          Stephen W. Kirsch, Assistant Deputy Public
          Defender, argued the cause for appellant
          (Joseph E. Krakora, Public Defender,
          attorney).

          Ian D. Brater, Assistant Prosecutor, argued
          the cause for respondent (Christopher J.
          Gramiccioni, Monmouth County Prosecutor,
          attorney; Ian D. Brater, of counsel and on
          the brief, and Mary R. Juliano, Special
          Deputy Attorney General/Acting Assistant
          Prosecutor, on the brief).



     JUSTICE TIMPONE delivered the opinion of the Court.

     This appeal raises the issue of whether a defendant’s

mother, who purportedly lied to law enforcement officers twice

in the past in order to assist her son in evading prosecution,




                                1 
                                 
 


may be cross-examined on those prior instances as evidence of

her bias.

     Defendant Thomas Scott was charged with possession of

heroin.    He argued that he did not knowingly possess the heroin

because someone else placed it in his jeans pocket before he put

them on.    In support, defendant sought to call his mother,

Darlene Barbella, to testify that she found the heroin in

defendant’s apartment in close proximity to defendant’s cousin

and known drug user, Jordan Scott, and that she placed the

heroin in the pocket of a pair of jeans she believed belonged to

Jordan.

     Defendant filed a motion in limine, seeking a preliminary

ruling on the admissibility of certain evidence, including

Barbella’s testimony.   In response, the State sought to

introduce evidence of two prior occasions on which Barbella

allegedly lied to police to cover for her son, defendant.      The

trial court ruled the State’s impeachment evidence admissible.

Defendant chose not to call Barbella at trial, instead calling

Lauren Halbersberg, defendant’s friend, to testify to the same

events.    The Appellate Division affirmed the trial court’s

determination that the evidence was admissible based upon the

State’s harmless error and bias arguments.

     We find that the evidence proffered by the State goes far

afield of a proper bias inquiry into Barbella’s relationship

                                  2 
                                   
 


with defendant.    The evidence is inadmissible under the dictates

of New Jersey Rules of Evidence 403 and 608, which govern

admissibility of prior bad acts and character evidence for

truthfulness.    That error prevented defendant from fully

developing his defense at trial and deprived the jury of key

witness testimony.    Accordingly, we reverse the Appellate

Division’s findings that the trial court’s error was harmless

and that bias supported the trial court’s admissibility ruling.

                                  I.

        We glean the relevant facts from the trial testimony.     On

November 27, 2012, Halbersberg and Jordan were at defendant’s

home, a second-floor apartment in a duplex in Long Branch.

Barbella owned the duplex and lived in the first-floor

apartment.

        According to Halbersberg, Barbella visited defendant’s

apartment twice that day.    During the second visit, Barbella

noticed two packets of heroin lying on a table in the living

room.    She took the packets, placed them in the pocket of a pair

of jeans that were lying on the couch next to Jordan, and

returned the jeans to the couch.        Halbersberg added that, during

this time, defendant prepared to take a shower, lacking any

knowledge of the heroin placement.

        After showering, defendant retrieved from the couch the

jeans now containing two packets of heroin, took them into the

                                   3 
                                    
 


bathroom, and put them on.   Defendant left shortly thereafter,

when a friend picked him up at the apartment.    Halbersberg

concluded by testifying that because of the “commotion,” she

failed to warn him of the heroin in his jeans.

     Detective Zotti of the Long Branch police department

observed defendant leave his apartment and get into the front-

passenger seat of a vehicle.   Zotti knew defendant from previous

arrests.   He asked his dispatcher to perform a warrant check on

defendant while he began following defendant in the vehicle.

Defendant was driven a short distance; the vehicle stopped, and

defendant exited.   Zotti approached defendant and started a

conversation.   In the meantime, dispatch advised Zotti of an

active arrest warrant for defendant.   Zotti made the arrest,

conducting a search incident to the arrest, which yielded the

two packets of heroin.   While being escorted to a patrol car,

defendant uttered, “I did not know that the heroin was in my

pocket, I have not worn these pants in weeks, I would have eaten

it, if I had known I had it on me.”

     A Monmouth County grand jury indicted defendant for third-

degree possession of heroin, N.J.S.A. 2C:35-10(a)(1).   In

preparation for trial, defendant filed a motion in limine,

seeking a preliminary ruling on the admissibility of certain

testimony.   Specifically, defendant successfully sought

introduction of his out-of-court statements to the police

                                 4 
                                  
 


regarding his claimed ignorance of the heroin in his jeans.

Defendant also sought to introduce the testimony of his mother,

Barbella, based on an interview she gave to an investigator for

the public defender’s office a little over a year after the

incident.

     During that interview, Barbella recounted her visit to the

apartment while defendant was in the shower.   She noted that

Jordan was lying on the couch “semi-conscious,” appearing to be

“heavily under the influence of drugs,” and that she told him to

get out of her house.   She then spotted the packets of heroin

and put them into the front pocket of the jeans lying on the

couch right next to Jordan.   Because of their proximity to

Jordan, Barbella assumed the jeans were his.   Barbella further

stated that Jordan returned to her home later that day banging

on the side door, shouting, “Tommy got arrested . . . . Tommy’s

got my drugs and money.”

     In response, the State sought to introduce evidence that,

in two previous instances, Barbella lied to officers in order to

“cover up” for defendant.   As the State recounted the first

instance, officers saw defendant working on a car in his

driveway.   As they approached, defendant quickly retreated into

the garage and shut the door.   When the officers confronted

Barbella about defendant’s whereabouts, she told them that he

was not home.   In response to an unrelated medical emergency,

                                 5 
                                  
 


officers later entered the house and found defendant inside.      In

the second instance, Barbella allegedly gave a written statement

to police regarding defendant’s involvement in a burglary, which

she later admitted was false.

       Defendant argued the inadmissibility of Barbella’s prior

false statements to police pursuant to N.J.R.E. 404(b).

Defendant claimed the State compounded the problem by failing to

move for a Cofield hearing to determine admissibility under Rule

404(b).   See State v. Cofield, 127 N.J. 328 (1992).    The State

countered that the evidence very belatedly came into its

possession; it raised the issue as soon as practicable and, most

importantly, the evidence satisfied the Cofield test.

       After hearing arguments from both parties, the trial court

ruled that the State’s evidence regarding “Ms. Barbella[’s] . .

. propensity to cover up her son’s wrongdoings” was “highly

relevant” and therefore “admissible both on cross examination

and on rebuttal if she elects to take the stand.”     In examining

the arguments under the rules of evidence, the court reasoned

that

            [t]his really isn’t 404(b). It’s more in the
            nature of Rule 608, which says the credibility
            of a witness in a criminal case may be attacked
            by evidence that the witness made a prior
            false accusation against any person of a crime
            similar to the crime with which the defendant
            is   charged   if   the   Judge   preliminarily
            determines, by a hearing pursuant to Rule 104,


                                  6 
                                    
 


            that the witness knowingly made a prior false
            accusation.

            This is not a case where she made a prior false
            accusation. It’s just the opposite. She gave
            false information to the police trying to
            exonerate her son. And 104(a) basically says
            that when you’re dealing with issues of this
            nature, the Judge makes a determination but he
            does not have to apply strictly the rules of
            evidence.

     The defense made no further objections to the ruling.

Instead, defendant made a tactical decision not to call

Barbella.    As a substitute, defendant called Halbersberg, who

gave testimony strikingly similar to that expected from

Barbella.

     Defendant was convicted as charged and, based upon a

balancing of the aggravating and mitigating factors in N.J.S.A.

2C:44-1, was sentenced to a five-year custodial term with two-

and-a-half years of parole ineligibility.

     The Appellate Division affirmed the trial court’s in limine

ruling.   The panel confirmed the trial court’s rejection of

N.J.R.E. 404(b) as a ground for admissibility, in addition to

finding the evidence inadmissible under N.J.R.E. 608.     The panel

also faulted the trial court for relying on Rule 104(a) to avoid

strict compliance with the rules of evidence.     The panel,

nevertheless, held that the evidence was admissible to impeach

Barbella through bias -- a position adopted by the State for the

first time on appeal.    Alternatively, the panel reasoned that

                                  7 
                                    
 


any error was harmless on two fronts:   (1) Barbella’s testimony

was cumulative of Halbersberg’s, which the jury found

unpersuasive; and (2) the State could have presented the same

bias argument through evidence of Barbella and defendant’s

familial relationship alone.   We granted defendant’s petition

for certification.    227 N.J. 22 (2016).

                                 II.

                                 A.

     Defendant submits that the trial court appropriately cited

N.J.R.E. 608 -- governing impeachment of a witness -- but

ultimately misapplied it.   According to defendant, Rule 608

specifically prohibits the admission of prior bad acts where

they do not relate to a prior conviction or prior false

accusation.   The preliminary determination that the State would

be permitted to cross-examine Barbella on her prior bad acts,

defendant contends, violated his federal Fourteenth and Sixth

Amendment rights, as well as the corresponding state-

constitutional rights.

     The violations were compounded, defendant asserts, when the

Appellate Division:   (1) wrongfully entertained the State’s

“new-on-appeal bias argument,” in violation of State v. Witt,

223 N.J. 409, 418-19 (2015); (2) incorrectly interpreted case

law on bias in a manner inconsistent with Rule 608(a); (3)

improperly admitted the prior bad acts without conducting a Rule

                                  8 
                                   
 


404(b) hearing, diverging from the holding in Cofield, supra,

127 N.J. at 338-42; and (4) improperly found that the errors

were harmless.

                                B.

     The State counters that the Appellate Division’s

consideration of the bias argument is consonant with Witt

because the admissibility of the impeachment was contested at

trial, leaving a fulsome record sufficient to resolve the legal

issue on appeal.   Next, relying heavily on the United States

Supreme Court’s opinion in United State v. Abel, 469 U.S. 45,

105 S. Ct. 465, 83 L. Ed. 2d 450 (1984), the State submits that

proving bias by specific acts is consistent with the strictures

of N.J.R.E. 608.

     Even if the trial court’s ruling were in error, the State

submits, the error was harmless because:   (1) defendant’s theory

of the case was “inherently implausible” and cumulative

testimony would not have altered the theory’s plausibility; (2)

Barbella’s proffered testimony corroborated only a small portion

of Halbersberg’s testimony, each of which was partially

inconsistent with the other; and (3) if Barbella’s testimony

were permitted, there is not a “reasonable probability the

verdict would be any different.”

                               III.



                                   9 
                                    
 


     “[T]he decision to admit or exclude evidence is one firmly

entrusted to the trial court’s discretion.”   Estate of Hanges v.

Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010).    We

therefore apply a deferential standard in reviewing a trial

court’s evidentiary rulings and uphold its determinations

“absent a showing of an abuse of discretion.”   State v. Perry,

225 N.J. 222, 233 (2016) (quoting State v. Brown, 170 N.J. 138,

147 (2001)).   A reviewing court must not “substitute its own

judgment for that of the trial court” unless there was a “clear

error in judgment” -- a ruling “so wide of the mark that a

manifest denial of justice resulted.”   Ibid. (quoting State v.

Marrero, 148 N.J. 469, 484 (1997)).

                                 IV.

     As a preliminary question, we first discuss whether the

State was permitted to raise a different justification for

admissibility on appeal.    It is a long-standing principle

underlying appellate review that “appeals are taken from orders

and judgments and not from opinions . . . or reasons given for

the ultimate conclusion.”   Do-Wop Corp. v. City of Rahway, 168

N.J. 191, 199 (2001); accord State v. Deluca, 168 N.J. 626, 631,

633 (2011) (finding search constitutional under different

exception than that relied upon by trial court); Shim v.

Rutgers, 191 N.J. 374, 378 (2007) (affirming Appellate Division

judgment on different grounds); State v. Nellom, 178 N.J. 192,

                                 10 
                                   
 


196 (2003) (same); Isko v. Planning Bd. of Livingston, 51 N.J.

162, 175 (1968) (“[T]he fact that [the order] was predicated

upon an incorrect basis will not stand in the way of its

affirmance.”).

     From that principle we have carved a limited exception in

cases where failure to raise the issue created a “record . . .

barren of facts that would shed light on [the] issue.”    Witt,

supra, 223 N.J. at 418.   In Witt, this Court was faced with the

issue of whether exigency permitted the State to bypass the

warrant requirement.   Id. at 414-15.    During a suppression

hearing, the defendant challenged the validity of the

warrantless search but not the stop itself.    Id. at 418.   On

appeal, defendant challenged the validity of the stop for the

first time.   Ibid.

     In holding that the lawfulness of the stop had not been

preserved for appellate review, we reasoned that permitting the

delayed challenge would require the State, in future suppression

hearings, “to cover areas not in dispute” and require “the State

to disprove shadow issues” due to “fear that an abbreviated

record [would] leave it vulnerable if the defense raises issues

for the first time on appeal.”   Ibid.   The byproduct of holding

otherwise would have been to “needlessly lengthen suppression

hearings[,] . . . result[ing] in an enormous waste of judicial

resources.”   Ibid.

                                 11 
                                   
 


     Even though we come to a different ultimate result than in

Witt, the same underlying principles apply here.   The State

proffered a rule-based justification for the admissibility of

the impeachment testimony, which the trial court apparently

accepted.   There was no reason for the State to submit a second

justification for the evidence’s admissibility.    The facts here

present the opposite side of the Witt coin.   Adopting

defendant’s position would require the State to submit every

potential justification for the admission of evidence in fear

that the reversal of one explanation on appeal would deny it the

benefit of other reasons for admissibility.   As we recognized in

Witt, that result would lengthen in limine hearings and would

result in an enormous waste of judicial resources.   See ibid.

     Unlike Witt, the record here is fully developed.    The

alternative justification upon which the State relies is bias.

Even a cursory review of the record reveals sufficient facts

upon which the State can base its bias argument.   Because we do

not find the current record “barren of facts that would shed

light on [the] issue,” ibid., we find it appropriate to review

the bias argument raised before the Appellate Division and turn

to its substance.

                                V.

                                A.




                                12 
                                  
 


     Our Rules of Evidence start from the proposition that all

relevant evidence is admissible, subject to delineated

categories of excluded evidence.       N.J.R.E. 402 (“Except as

otherwise provided in these rules or by law, all relevant

evidence is admissible.”).   Rule 607 permits, “for the purpose

of impairing or supporting the credibility of a witness, any

party including the party calling the witness [to] examine the

witness and introduce extrinsic evidence relevant to the issue

of credibility,” unless an exception within that rule applies or

either Rule 405 or 608 renders the evidence inadmissible.

     Those Rules preclude the use of specific instances of

conduct to attack the credibility of a witness.      N.J.R.E. 405

provides that “[s]pecific instances of conduct not the subject

of a conviction of a crime shall be inadmissible,” and N.J.R.E.

608 indicates that “a trait of character cannot be proved by

specific instances of conduct” unless the prior act was a “false

accusation against any person of a crime similar to the crime

with which defendant is charged.”      Otherwise, relevant evidence

may also be excluded on the ground that “its probative value is

substantially outweighed by the risk of . . . undue prejudice.”

N.J.R.E. 403.

     The Rules do not explicitly discuss bias as a permissible

means of impeachment; however, this Court has long found the use

of bias to attack a witness’s credibility proper.      See, e.g.,

                                13 
                                    
 


State v. Bass, 224 N.J. 285, 302 (2016) (“[C]laimed bias of a

witness is generally an appropriate inquiry in cross-examination

in criminal trials[.]”); State v. R.K., 220 N.J. 444, 458 (2015)

(“At trial, a party may introduce evidence that an adverse

witness is biased.”); State v. Pontery, 19 N.J. 457, 472 (1955)

(“[I]t is proper for either the defense or the prosecution to

show the interest of a witness as bearing upon the witness’

credibility.”).   Where a party seeks to demonstrate bias, it may

do so by introducing extrinsic evidence.   R.K., supra, 220 N.J.

at 459.

     We find the United States Supreme Court’s decision

discussing the interrelation of bias and specific instances of

bad conduct instructive here.   In Abel, supra, the District

Court permitted the introduction of a witness’s membership in

the Aryan Brotherhood, of which the defendant was also a member,

to prove that the testimony the witness would give was biased.

469 U.S. at 47, 105 S. Ct. at 466-67, 83 L. Ed. 2d at 454.     The

Court commenced the analysis by defining bias as “the

relationship between a party and a witness which might lead the

witness to slant, unconsciously or otherwise, his testimony in

favor of or against a party.”   Id. at 52, 105 S. Ct. at 469, 83

L. Ed. 2d at 457.   Armed with that definition, the Court

reasoned that “[a] witness’ and a party’s common membership in

an organization, even without proof that the witness or party

                                14 
                                  
 


has personally adopted its tenets, is certainly probative of

bias.”   Ibid.   In responding to the defendant’s argument that

his membership was a specific instance of conduct, the Court --

relying on the principle that evidence inadmissible for one

purpose may be admissible for another -- found it of no

consequence that the Aryan Brotherhood’s tenet requiring perjury

“might also impeach his veracity directly” as propensity

evidence.   Id. at 56, 105 S. Ct. at 471, 83 L. Ed. 2d at 460.

                                 B.

     We do not quarrel with the State’s position, which is well

established, that cross-examining witnesses in criminal trials

based on their bias towards the accused is permitted.   We do not

find, however, that the prior instances of Barbella’s lying to

law enforcement officers are probative of her bias.   The query,

as it relates to bias, is “the relationship between a

[defendant] and a witness.”   Id. at 52, 105 S. Ct. at 469, 83 L.

Ed. 2d at 457.   The relationship between defendant and Barbella

could have been probed by eliciting the fact that Barbella was

defendant’s mother.   It is equally true that the State could

have asked Barbella about whether she would lie to protect her

defendant son.   That is the permissible limit of the State’s

inquiry into her bias.   When the State’s evidence goes beyond an

inquiry into the relationship between the defendant and the




                                 15 
                                   
 


witness, the shelter provided by bias erodes and the State must

seek refuge under other admissibility grounds.

     Reviewing the remaining evidentiary rules, we find the

State’s remaining arguments unavailing as well.    The only other

reason for which the State could have proffered the prior-acts

testimony is to show Barbella’s character for untruthfulness.

Like both the trial court and the Appellate Division, we find

the enumerated exceptions in Rule 404(b) inapplicable.   Further,

Rule 608 explicitly excludes specific instances of conduct as a

means of proving a character for untruthfulness, permitting only

opinion or reputation evidence.

     Moreover, even if Rule 608 did not specifically bar the

proffered impeachment evidence, we find its probative value

substantially outweighed by its prejudicial nature.    The

evidence does not only implicate Barbella in prior instances of

lying, it also connects defendant to multiple prior criminal

episodes.   Examining Barbella on her relationship to defendant

was surely probative, but the added benefit of examining her on

the past instances of dishonesty was slight.   Because the

prejudice extends to both Barbella and defendant, it

significantly outweighs the slight probative value gained from

cross-examining Barbella on the prior instances.   Consequently,

we find that the trial court abused its discretion in ruling in

limine that the proposed impeachment testimony was admissible

                                  16 
                                    
 


against Barbella.   Based on that finding, it is unnecessary to

address whether a Cofield analysis was necessary and we turn,

instead, to a discussion of whether the error was harmless.

                                 VI.

                                 A.

     Rule 2:10-2 directs reviewing courts to disregard “[a]ny

error or omission . . . unless it is of such a nature as to have

been clearly capable of producing an unjust result.”   Known as

the harmless error doctrine, that rule “requires that there be

‘some degree of possibility that [the error] led to an unjust

result.’”   State v. R.B., 183 N.J. 308, 330 (2005) (alteration

in original) (quoting State v. Bankston, 63 N.J. 263, 273

(1973)).    In discussing the extent of error required for

reversal, we noted “[t]he possibility must be real, one

sufficient to raise a reasonable doubt as to whether [it] led

the jury to a verdict it otherwise might not have reached.”

Ibid. (second alteration in original) (quoting Bankston, supra,

63 N.J. at 273).    Exclusion of testimony, however, which is

central to a defendant’s claim or defense, “if otherwise

admissible, cannot be held to be harmless error.”   State v.

Kelly, 97 N.J. 178, 202-03 (1984).

                                 B.

     Unlike the Appellate Division, we find the trial court’s

error harmful.   In doing so, we look to evidence outside of

                                 17 
                                   
 


defendant’s testimony because it is the “sort of evidence that a

jury naturally would tend to discount as self-serving.”       See

Skipper v. South Carolina, 476 U.S. 1, 8, 106 S. Ct. 1669, 1673,

90 L. Ed. 2d 1, 9 (1986).   We therefore focus primarily on

Halbersberg’s testimony and the proffer of Barbella’s testimony.

Barbella was defendant’s central witness; who better to

corroborate defendant’s “unknowing” theory than the person who

placed the heroin in his pants.        Although the prior-bad acts

evidence was ultimately not admitted here, “defendant paid a

[significant] price to keep it out.”       State v. P.S., 202 N.J.

232, 260 (2010).

     We agree that it is possible that the jury could have

discounted Barbella’s testimony, like Halbersberg’s, or that the

jury would have been persuaded by the State’s inevitable bias

summation, or that the jurors “might have independently

discounted the probative force of the mother’s testimony, in

light of the family relationship.”       These mere possibilities,

however, do not render an error harmless.       Nor can we condone a

harmless-error finding based on possibilities alone.       The

evidentiary error here deprived the jury of the opportunity to

“evaluate [Barbella’s] tone, manner, and body language, and

accordingly, to assess [her] credibility.”       P.S., supra, 202

N.J. at 260.   An error resulting in the jury’s inability to

assess the credibility of the defense’s key witness is

                                  18 
                                    
 


ordinarily not harmless.   While the dissent may find the defense

implausible, that decision is in the sole province of the jury.

Judges should not intrude as the thirteenth juror.

     Nor do we find Barbella’s testimony merely cumulative.

Rather, it is corroborative.   The testimony of Barbella and

Halbersberg illustrate the scenario from different vantage

points.    Barbella’s expected testimony would have her placing

the drug packets into the pocket of a stray pair of jeans she

believed belonged to her drug-addled nephew.   She then left the

apartment.   Barbella’s testimony is important for the jury to

consider and evaluate because if believed, she provides a first-

hand rationale for placing the packets in the jeans’ pocket.

Namely, she placed the packets in the jeans and then told Jordan

to leave, which would have effectively removed the heroin from

her apartment.

     Halbersberg’s testimony overlapped some of Barbella’s;

corroborative testimony is the hallmark of presenting a credible

defense.   No one would suggest that a second eyewitness to a

crime is merely cumulative testimony because of the availability

of one eyewitness.   The same logic must apply to the

presentation of the defense in this case.   Halbersberg’s

testimony crucially went beyond Barbella’s proffered testimony

and picked up after Barbella had left the apartment.

Importantly, Halbersberg saw the defendant come out of the

                                 19 
                                   
 


shower, grab the jeans from the couch, and leave wearing them.

Both witnesses were critical to the defense; the synergy of the

two made the theory significantly more plausible.

     The trial court’s in limine ruling “alter[ed] [defendant’s]

trial strategy,” precluding him from presenting -- and the jury

from assessing -- a key witness who would have provided both new

and corroborative evidence.   See ibid.   As a result, we find

harmful error.

                               VII.

     The judgment of the Appellate Division affirming the trial

court’s in limine order is reversed.



     CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA and ALBIN join
in JUSTICE TIMPONE’s opinion. CHIEF JUSTICE RABNER filed a
separate, concurring opinion, in which JUSTICES PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join. JUSTICE ALBIN filed
a separate, concurring opinion, in which JUSTICE LaVECCHIA
joins. JUSTICE PATTERSON filed a separate, partially concurring
and partially dissenting opinion, in which JUSTICES FERNANDEZ-
VINA and SOLOMON join.




                                20 
                                  
 


                                         SUPREME COURT OF NEW JERSEY
                                           A-86 September Term 2015
                                                    077434

STATE OF NEW JERSEY,

     Plaintiff-Respondent,

          v.

THOMAS L. SCOTT (a/k/a JAMES
LONGENBERGER, and CHRISTOPHER
TUREAUD),

     Defendant-Appellant.



     CHIEF JUSTICE RABNER, concurring.

     In this case, defense counsel sought to call defendant’s

mother as a witness to exonerate the defendant.    The State, in

turn, wanted to cross-examine her about two prior occasions when

she allegedly falsely tried to exonerate him.    As the majority’s

well-reasoned opinion explains, the current rules of evidence do

not allow that inquiry.   I write separately to discuss whether

the rules should be modified to permit cross-examination about

specific instances of conduct that relate to a witness’s

character for truthfulness.

     Under the existing rules, a witness may not be cross-

examined about specific instances of conduct except for two

limited areas:   prior criminal convictions and prior false

criminal accusations.   See N.J.R.E. 405, 607, 608.



                                 1
 
 


     Rule 405 permits character evidence but bars the admission

of “[s]pecific instances of conduct not the subject of a

conviction of a crime.”   Rule 608(a) likewise permits evidence

“in the form of opinion or reputation” about a “witness’s

character for truthfulness or untruthfulness.”   The rule,

however, forbids the use of “specific instances of conduct” to

prove a trait of character, aside from impeachment based on a

criminal conviction under Rule 609.   Rule 608(b) provides

another narrow exception and allows

          [t]he credibility of a witness in a criminal
          case [to] be attacked by evidence that the
          witness made a prior false accusation against
          any person of a crime similar to the crime
          with which defendant is charged if the judge
          preliminarily   determines,   by  a   hearing
          pursuant to Rule 104(a), that the witness
          knowingly made the prior false accusation.

Finally, Rule 607 notes that the examination of a witness’s

credibility is subject to the restrictions in Rules 405 and 608.

     As a result, in most instances, a witness with a record of

demonstrable lies that bear on credibility cannot be asked about

them on cross-examination.   She is instead allowed to appear

before the jury under an artificial light.

                                 I.

     It is important to consider the context and purpose

underlying today’s rules.    In State v. Guenther, 181 N.J. 129,

141-42 (2004), this Court traced the history of Rule 608 to the


                                  2
 
 


common law and noted certain reasons for the rule:   “to prevent

unfairness to the witness,” “to avoid confusion of the issues

before the jury,” and to avoid “undue consumption of time.”

(citing 3A Wigmore on Evidence § 979, at 823, 827 (Chadbourn

rev. 1970)).

     Guenther described the reasons against using extrinsic

evidence to prove specific acts of misconduct.   The common law

recognized that each additional witness would extend the trial,

could “overwhelm the material issues of the case” with testimony

on minor points, and could “confuse the tribunal in its

effort[]” to focus on material points.   3A Wigmore on Evidence §

979, at 826.   In addition, it would be unfair to allow others to

refute the testimony of a witness, for whom “it would be

practically impossible” to call competent witnesses to dispute

the allegation.   Ibid.

     To be sure, though, the reasons against allowing extrinsic

evidence to challenge a witness’s testimony had little to do

with relevancy.   Id. at 827.   “The reasons are solely of

auxiliary policy,” Professor Wigmore noted, and “[w]hen these

reasons . . . cease, the rule ceases.”   Ibid.   He offered two

such examples:    “proof of a particular crime by record of

conviction, and proof of particular instances of misconduct in

general, by cross-examination of the witness himself.”    Id. at

827-28 (emphases altered).

                                  3
 
 


     N.J.R.E. 608, however, bars not only the use of extrinsic

evidence but also cross-examination into specific instances of

misconduct.     The common law offers no support for the latter

principle.     To the contrary, as Professor Wigmore explained, the

reasons underlying the bar against extrinsic evidence

             appear plainly to have no effect in forbidding
             the extraction of the facts of misconduct from
             the witness himself upon cross-examination.
             (a) There is no danger of confusion of issues,
             because the matter stops with question and
             answer; (b) There is no danger of unfair
             surprise, because the impeached witness is not
             obliged to be ready with other witnesses to
             answer   the   extrinsic   testimony  of   the
             opponent, for there is none to be answered,
             and because, so far as the witness himself is
             concerned, he may not unfairly be expected to
             be ready to know and to answer as to his own
             deeds.

             [Id. § 981, at 838.]

     Professor McCormick likewise noted that the English common

law tradition “permit[ted] counsel to broadly inquire about the

witness’s associations and personal history including any

misconduct tending to discredit his character, even though it

has not been the subject of a conviction.     In the common law

tradition the English courts trusted the bar’s disciplined

discretion to avoid abuse.”     1 McCormick on Evidence § 41, at

246-47 (Broun ed., 7th ed. 2013).

     For centuries, thus, authorities have recognized a clear

distinction between (1) using extrinsic evidence to discredit a


                                    4
 
 


witness -- namely, calling additional witnesses to impeach the

witness -- which can be unfair and invite confusion and delay,

and (2) asking the witness questions on cross-examination that

relate to the person’s character for truthfulness.    The former

was barred for good reason.   Courts historically allowed the

latter approach.

                                 II.

     Most modern courts follow the common law tradition and

permit questioning about specific instances of conduct that are

probative of a witness’s character for truthfulness.   In federal

court, that type of cross-examination is expressly allowed and

occurs regularly.   Like New Jersey’s rule, Federal Rule of

Evidence 608(a) permits reputation or opinion evidence to

challenge a witness’s character for truthfulness or

untruthfulness.    Rule 608(b) addresses the use of specific

instances of conduct:

          Except for a criminal conviction under Rule
          609, extrinsic evidence is not admissible to
          prove specific instances of a witness’s
          conduct in order to attack or support the
          witness’s character for truthfulness. But the
          court may, on cross-examination, allow them to
          be inquired into if they are probative of the
          character for truthfulness or untruthfulness
          of: (1) the witness; or (2) another witness
          whose character the witness being cross-
          examined has testified about.

          [Fed. R. Evid. 608(b) (emphasis added).]



                                  5
 
 


     A majority of states follow the federal approach and permit

cross-examination into specific instances of conduct if they are

probative of the witness’s character for truthfulness.     Eight

states follow the federal rule verbatim:   Arizona, Ariz. R.

Evid. 608(b); Iowa, Iowa R. Evid. 5.608(b); Mississippi, Miss.

R. Evid. 608(b); New Mexico, N.M. R. Evid. 11-608(B); North

Dakota, N.D. R. Evid. 608(b); South Dakota, S.D. Codified Laws §

19-19-608(b); Utah, Utah R. Evid. 608(b); and West Virginia, W.

Va. R. Evid. 608(b).   Maine uses nearly identical language.   Me.

R. Evid. 608(b).   Connecticut also follows the federal approach.

Conn. Code Evid. 6-6(b).

     Many states adopted the version of Rule 608 in the Uniform

Rules of Evidence, which tracks the essence of the federal rule

with slightly different language:

          Specific instances of the conduct of a
          witness, for the purpose of attacking or
          supporting the witness’s credibility, other
          than conviction of crime as provided in Rule
          609, may not be proved by extrinsic evidence.
          However, in the discretion of the court, if
          probative of truthfulness or untruthfulness,
          they may be inquired into on cross-examination
          of the witness (i) concerning the witness’s
          character for truthfulness or untruthfulness,
          or   (ii)   concerning   the   character   for
          truthfulness or untruthfulness of another
          witness as to which character the witness
          being cross-examined has testified.

          [Unif. R. Evid. § 608(b) (Nat’l Conf.       of
          Comm’rs on Unif. State Laws 2005).]



                                 6
 
 


     Twenty states use either that precise text or substantially

similar language:   Arkansas, Ark. R. Evid. 608(b); Colorado,

Colo. R. Evid. 608(b); Delaware, Del. R. Evid. 608(b); Georgia,

Ga. Code Ann. § 24-6-608(b); Idaho, Idaho R. Evid. 608(b);

Kentucky, Ky. R. Evid. 608(b); Michigan, Mich. R. Evid. 608(b);

Montana, Mont. Code Ann. § 26-10-608(b); Neb. Rev. Stat. § 27-

608(2); Nevada, Nev. Rev. Stat. § 50.085(3); New Hampshire, N.H.

R. Evid. 608(b); North Carolina, N.C. Gen. Stat. § 8C-1, Rule

608(b); Ohio, Ohio R. Evid. 608(B); Oklahoma, Okla. Stat. tit.

12, § 2608(B); Rhode Island, R.I. R. Evid. 608(b); South

Carolina, S.C. R. Evid. 608(b); Vermont, Vt. R. Evid. 608(b);

Washington, Wash. R. Evid. 608(b); Wisconsin, Wis. Stat. §

906.08(2); and Wyoming, Wyo. R. Evid. 608(b).

     Minnesota and Tennessee use the language of Unif. R. Evid.

608(b) and add procedural protections.   See Minn. R. Evid.

608(b), (c); Tenn. R. Evid. 608(b).   Maryland also allows cross-

examination about a witness’s prior conduct that is probative of

untruthfulness, when the questioner, if challenged, “establishes

a reasonable factual basis” outside the jury’s presence.   Md. R.

5-608(b).

     Hawaii permits cross-examination about specific instances

of a witness’s conduct, if probative of untruthfulness, and

affords judges discretion to allow the use of extrinsic

evidence.   Haw. Rev. Stat. § 626-608(b).

                                 7
 
 


        Kansas allows any party to “introduce extrinsic evidence

concerning any conduct by [the witness] and any other matter

relevant upon the issues of credibility.”      Kan. Stat. Ann. § 60-

420.

        California permits evidence of specific instances of

conduct to challenge a witness’s credibility in criminal but not

civil cases.    See Cal. Const. art. I, § 28; Cal. Evid. Code §

787; People v. Harris, 767 P.2d 619, 640-41 (Cal. 1989).

        Six states adopted only the latter part of Federal Rule of

Evidence 608(b).    They permit cross-examination of a character

witness with specific instances of conduct about the character

for truthfulness or untruthfulness of the underlying witness.

See Ala. R. Evid. 608(b); Alaska R. Evid. 608(b); Ind. R. Evid.

608(b); La. Code Evid. art. 608(B); Pa. R. Evid. 608(b); Va.

Sup. Ct. R. 2:608.    Except to prove a criminal conviction,

extrinsic evidence may not be used, and the states do not allow

inquiry into specific instances of conduct of the testifying

witness himself.

        Only a few states reject the federal approach entirely and

do not permit evidence of specific acts of conduct to attack or

support a witness’s credibility.       See Mass. Guide Evid. 608(b);

Or. Rev. Stat. § 40.350(2); Tex. R. Evid. 608(b).

        New Jersey has followed the minority rule for quite some

time.    N.J.R.E. 608 was adopted in 1992.    It incorporated the

                                   8
 
 


same limitation against the use of specific instances of conduct

that appeared in the prior Rule 22(d).      Supreme Court Committee

Comment on N.J.R.E. 608 (1991), reprinted in Biunno, Weissbard,

& Zegas, New Jersey Rules of Evidence (Biunno) 612 (2016).       The

Supreme Court adopted Rule 22 in 1967.      Supreme Court Adopts

Evidence Rules, 90 N.J.L.J. 393 (June 15, 1967).      The rule

followed settled New Jersey law.       See, e.g., State v. De Paola,

5 N.J. 1, 9-11 (1950).

     When New Jersey restyled its rules of evidence in 1992 to

follow the format of the federal rules, no substantive change

was made in this area.   In general, as the Committee on Evidence

observed, “[t]he overall effect” of the changes was “neither

startling nor radical and [did] not substantially alter

prevailing practice.”    Report of the Supreme Court Committee on

the Rules of Evidence (1991), reprinted in Biunno, supra, at x.

As to Rule 608, there is no record of the reason the minority

rule was maintained, other than the following brief statement:

“[The] rule is consistent in philosophy and effect with the

choice made in respect of Rule 405(a), namely adopting the state

rather than the federal analogue.      It is the Committee’s view

that Rule 607 affords sufficient scope for the effective

impeachment of credibility.”   Supreme Court Committee Comment on

N.J.R.E. 608 (1991), reprinted in Biunno, supra, at 612.



                                   9
 
 


                               III.

     The differences under the two primary approaches matter a

great deal.   Under the majority rule, a witness can be

questioned about specific conduct that generally involves

dishonesty or false statements; in New Jersey, witnesses are

shielded from that type of inquiry.    For example, in federal

court and in most states, a witness can be asked if he or she

previously lied under oath, see United States v. Whitmore, 359

F.3d 609, 619-20 (D.C. Cir. 2004), used false social security

numbers, see United States v. Weekes, 611 F.3d 68, 71 (1st Cir.

2010), cert. denied, 546 U.S. 1021, 131 S. Ct. 3021, 180 L. Ed.

2d 850 (2011), made a false statement about marital status to

get a marriage license, see United States v. Beros, 833 F.2d

455, 463 (3d Cir. 1987), criticized on other grounds, Schad v.

Arizona, 501 U.S. 624, 634 n.5, 111 S. Ct. 2491, 2498 n.5, 115

L. Ed. 2d 555, 567 n.5 (1991), or altered time records and

inflated bills to clients, see United States v. Simonelli, 237

F.3d 19, 22-23 (1st Cir.), cert. denied, 534 U.S. 821, 122 S.

Ct. 54, 151 L. Ed. 2d 23 (2001).     Focused cross-examination into

that type of conduct relates to the witness’s veracity and

credibility, and is considered neither unfair nor confusing.

     In New Jersey, by contrast, a witness who previously lied

under oath can testify again without facing any questions about

the matter -- absent two exceptions -- even though the

                                10
 
 


information is plainly pertinent to the jury’s ability to

evaluate the witness’s credibility.   The current rules prevent

jurors from hearing anything about a prior specific instance of

conduct that bears directly on credibility, aside from the minor

exceptions noted above.

     This appeal highlights problems posed by the current law.

A witness’s prior dishonest acts and false statements, which

relate to the person’s character for truthfulness, cannot be

probed for the jury, with rare exception.   If a witness has

falsely accused someone of a crime, though, the witness may be

cross-examined on that topic in certain situations.   See

N.J.R.E. 608(b).   That limited exception makes eminently good

sense and serves one of the core principles of the justice

system:   to seek the truth by confronting and possibly exposing

a witness who may lack credibility.   However, if another witness

has falsely tried to exonerate a person, the witness cannot be

questioned on that specific instance of conduct.

     False testimony to exonerate is just as troublesome as a

false criminal accusation.   Both impede the search for the

truth.    Indeed, it is hard to explain to the public why one area

can be probed and not the other.

     In both instances, Rule 403 would bar testimony that would

confuse the issues, distract the jury with an extended sideshow,

or cause undue prejudice.    Trial judges ably guard against those

                                 11
 
 


concerns now when they decide whether to allow cross-examination

about prior false accusations.   Just the same, I trust the

discretion of trial judges to limit carefully cross-examination

about prior false efforts to exonerate and other specific

instances of conduct that relate to credibility.

     Had the federal or uniform rule applied in this case, we do

not know from the record whether the State would have been

allowed to ask defendant’s mother whether she lied twice before

to protect her son.   The State would need a good faith basis for

that line of questioning and would have to satisfy any concerns

under Rule 403.   The trial judge, in turn, would have been

required to limit the testimony in order not to reveal any prior

criminal activity that would unduly prejudice defendant.

     That said, if there is a legitimate basis for the question,

what is wrong with asking a witness whether she had lied before

to protect her son about a serious matter?   Why should the rules

prevent a jury from hearing that question and answer, and having

a chance to evaluate the witness’s demeanor?   The question alone

is not evidence, but the answer –- even a denial -- can convey

pertinent information to a jury.

     In most jurisdictions, the inquiry would end at that point.

Counsel is bound by the witness’s answer and cannot offer

extrinsic evidence.   In other words, counsel cannot call another

witness to disprove the answer and show that the specific

                                 12
 
 


incident occurred.   Jack B. Weinstein & Margaret A. Berger,

Weinstein’s Federal Evidence § 608.22 (Matthew Bender 2017).

That guards against delay and confusion.

     It is hardly unfair to ask a witness about his or her own

behavior.   But it does seem unfair to keep factfinders in the

dark about discrete instances of conduct that relate to a

witness’s character for truthfulness.   The justice system’s

focus belongs on enabling juries to decide whether a witness can

be believed, not on how attorneys may prepare for cross-

examination.   Asking witnesses to respond directly to pertinent

questions serves that aim.   Character evidence from a third

party, by comparison, is a weak substitute to assess the

witness’s own response.

     I believe it is time to consider whether Rule 608 should be

revised to allow cross-examination, in a controlled fashion,

into specific instances of conduct that are probative of the

witness’s character for truthfulness.   Without question, that

would amount to a substantial change in practice.   But the

Judiciary has not shied away from reassessing its approach when

there is cause to do so.   See, e.g., State v. Witt, 223 N.J. 409

(2015).

     Thoughtful judges, practitioners, and academics can

evaluate the current state of the law and consider appropriate

safeguards that might accompany a change.   Aside from changes to

                                13
 
 


Rule 608 in 2007 to incorporate Guenther, see R. 608(b); Biunno,

supra, comment 2 on N.J.R.E. 608, at 614, it is unclear when the

Committee on Evidence last examined the rule in depth.   At the

very least, it has been decades.

     I recommend that the Committee consider the question again

today for a simple reason:   the topic relates directly to the

jury’s search for the truth, which a system of justice should

foster.




                                14
 
 



                                       SUPREME COURT OF NEW JERSEY
                                         A-86 September Term 2015
                                                  077434

STATE OF NEW JERSEY,

     Plaintiff-Respondent,

          v.

THOMAS L. SCOTT (a/k/a JAMES
LONGENBERGER, and CHRISTOPHER
TUREAUD),

     Defendant-Appellant.

     JUSTICE ALBIN, concurring.

     I fully concur with Justice Timpone’s thoughtful and well-

reasoned opinion.   I write separately to address the proposal in

the Chief Justice’s concurring opinion that we should align

N.J.R.E. 608 with its federal counterpart.

     N.J.R.E. 608 generally prohibits collateral attacks on a

witness’s character for truthfulness through specific-conduct

impeachment evidence.   Our codified rules of evidence -- in line

with the historic development of New Jersey’s common law --

forbid such collateral impeachment attacks for reasons of

fairness and public policy.   Under our evidence rules, a sexual

assault victim cannot be asked whether she misrepresented her

assets on a student loan application; a police officer cannot be

asked whether he lied about his age on a summer employment

application years earlier or plagiarized a paragraph in


                                  1
 
 


completing a college essay; and a defendant, on trial for

aggravated assault, cannot be asked whether he misstated his

income on his tax returns.    That form of impeachment attack is

not permitted because the probative value of such questioning is

outweighed by the potential prejudice of diverting jurors from

the central issues in a case -- and because we do not assume

that a person who lied in the past under wholly different

circumstances will lie under oath at trial.

     The Chief Justice’s proposal, if adopted, would allow the

use of specific instances of untruthfulness -- wholly unrelated

to the litigation -- to impeach a witness’s character for

veracity.   The threat of such collateral attacks could keep

crime victims from coming forward and injury victims from

bringing their claims.   Such a threat might also keep defendants

off the stand, thus depriving the jury of their testimony.     It

would also encourage parties to forage for impeachment evidence

to launch wide-ranging attacks on a witness’s credibility.

     That is why our present evidence rule N.J.R.E. 608, its

predecessor evidence rule, and New Jersey’s common law never

incorporated the Chief Justice’s proposal to allow specific

instances of conduct as a means of impeaching a witness’s

character for truthfulness.   In 1991, our Supreme Court Evidence

Rule Committee -- in making recommendations to amend our then-

evidence rules -- surveyed the federal evidence rules and

                                  2
 
 


specifically considered and rejected reshaping N.J.R.E. 608 to

conform to federal practice.

     To be sure, our current rules do not allow an incorrigibly

dishonest witness a safe haven.    Our rules permit the

impeachment of a witness’s credibility by such means as opinion

and reputation evidence, bias, prior inconsistent statements,

false statements made in the matter, and prior false

accusations.

     The parties have not asked this Court to amend N.J.R.E.

608, nor have there been complaints from the bar about the rule.

Although our rules limiting impeachment may not be perfect, they

sensibly accommodate two important goals:   the search for truth

and the need for fairness in our criminal and civil justice

system.   Before tearing down our present structure, thought must

be given to whether the replacement would be better.

     I do not see any special justification for altering the

current formulation of N.J.R.E. 608, for reasons I will now more

fully explain.

                                  I.

                                  A.

     Our rules of evidence generally prohibit impeachment of a

witness’s character for truthfulness through the use of specific

instances of conduct.   N.J.R.E. 608(a) (“Except as otherwise

provided by Rule 609 and by paragraph (b) of this rule, a trait

                                  3
 
 


of character cannot be proved by specific instances of

conduct.”); see also N.J.R.E. 405(a) (“Specific instances of

conduct not the subject of a conviction of a crime shall be

inadmissible [to prove a trait of character].”).                                         There are a

few exceptions to this general rule.                                        For example, a witness’s

credibility can be impeached with prior criminal convictions,

N.J.R.E. 609, or prior false accusations, N.J.R.E. 608(b), and

specific instances of conduct are admissible when a party’s

character for truthfulness is an essential element of a claim or

defense, N.J.R.E. 405(b), such as in a defamation case.

Otherwise, an attack on a witness’s character for truthfulness

must come in the form of reputation or opinion evidence.

N.J.R.E. 405(a).

              In contrast to the New Jersey approach, the federal rules

of evidence permit the use of “specific instances of a witness’s

conduct in order to attack or support the witness’s character

for truthfulness.”                                        Fed. R. Evid. 608(b).1   The federal rule,


                                                            
1   Federal Rule of Evidence 608(b), in full, provides:

                             Except for a criminal conviction under Rule
                             609, extrinsic evidence is not admissible to
                             prove specific instances of a witness’s
                             conduct in order to attack or support the
                             witness’s character for truthfulness. But the
                             court may, on cross-examination, allow them to
                             be inquired into if they are probative of the
                             character for truthfulness or untruthfulness
                             of:


                                                                      4
 
 


however, bars the introduction of extrinsic evidence to prove

the specific instance of conduct.                                           Thus, the examiner cannot go

further than posing the question and accepting the answer.                                          For

instance, the examiner may ask a witness, who is a cheating

husband, whether he lied to his wife innumerable times about his

faithfulness.                               However, on receiving a negative response, the

examiner cannot not rebut the answer with extrinsic evidence.

              I disagree with the Chief Justice’s view that “even a

denial . . . can convey pertinent information to a jury” in the

absence of rebuttal evidence.                                         Ante at ___ (Rabner, C.J.,

concurring) (slip op. at 12).                                         Can the denial, in the example

above, suggest the opposite -- the husband lied to his wife?                                           To

allow an adverse inference to be drawn from the denial would

mean that the question itself would be transformed into

affirmative evidence.                                          Permitting this level of speculation on a

collateral issue, one so tangential to the case at hand, would

surely divert the jurors’ eyes from the true issues.

              The only limitation on the expansive use of specific

instances of conduct to impair a witness’s character for

truthfulness is Federal Rule of Evidence 403, which weighs the



                                                            
                                            (1) the witness; or

                                            (2) another witness whose character the
                                            witness    being   cross-examined   has
                                            testified about.
                                                                        5
 
 


probative value of the inquiry against its potential prejudicial

effect.2                    Of course, different judges, even in similar cases, may

come to different outcomes in weighing the competing Rule 403

factors, and those outcomes, if within the realm of reason,

would have to be respected under an abuse-of-discretion

standard.

                                                                   B.

              The New Jersey approach is not the product of mistake or

oversight.                         This Court thoroughly highlighted the historical and

practical basis for this State’s commitment to N.J.R.E. 608’s

limited scope in State v. Guenther, 181 N.J. 129, 139-44, 151-54

(2004).                   The Guenther Court explained that we bar “the use of

prior instances of conduct to attack the credibility of a

witness for two essential reasons:                                       to prevent unfairness to the

witness and to avoid confusion of the issues before the jury.”

Id. at 141.                           Under our current rule, we have concluded that it

would not be fair that a witness must answer for his whole life

and respond to long ago instances of untruthful conduct.                                       Ibid.;

see also The New Wigmore:                                      A Treatise on Evidence:   Impeachment

and Rehabilitation § 3.3 (2017).                                        We also have determined that


                                                            
2 Federal Rule of Evidence 403 provides: “The court may exclude
relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative
evidence.”
                                                                    6
 
 


“wide-ranging collateral attacks on the general credibility of a

witness” may lead to jury confusion and distract the jury from

“the true issues in the case.”   Guenther, supra, 181 N.J. at

141-42; see also The New Wigmore, supra, § 3.3.   Concerns about

witness fairness and jury confusion are not diminished merely

because extrinsic evidence cannot be introduced to impeach the

witness.

     Allowing expansive collateral attacks on a witness’s

credibility through prior specific conduct would likely have the

unintended consequence of prompting attorneys to forage through

a witness’s past, “hoping to snare some morsel of information”

that can be used for impeachment purposes.   See State v.

Hernandez, 225 N.J. 451, 466 (2016).   Attorneys will investigate

witnesses to determine whether they have made misrepresentations

on job and license applications; mortgage, loan, and tax

statements; and academic and professional articles, to name but

a few examples.   Specific instances of conduct will be

admissible even though wholly collateral to the case itself.

     Under the federal evidence rules, an aggravated-assault

victim or a personal-injury plaintiff can be asked on cross-

examination whether she misrepresented her income on a job

application or a tax return seven years ago.   Such prior acts of

dishonesty would bear little relevance to the victim’s or

plaintiff’s credibility in court but likely would have an

                                 7
 
 


outsized effect on the jury’s evaluation of that witness.      The

admission of the singular incident, or incidents, of

untruthfulness would allow the jury to engage in the most

simplistic and dangerous assumption -- once a liar, always a

liar.    See Richard E. Redding, Socialization by the Legal

System:    The Scientific Validity of a Lacanian Socio-Legal

Psychoanalysis, 75 Or. L. Rev. 781, 799-800 (1996).    That a

witness previously misrepresented his income or work history on

an employment application would hardly signify that the witness

is primed to give perjured testimony in court.    See id. at 800.

That a witness at a younger age and under different

circumstances was untruthful is not a basis for a presumption

that dishonesty is a fixed personality trait of the witness.

Id. at 800-01.    Allowing juror speculation on such a subject

will not advance the truth-seeking purpose of a trial.

        One learned treatise on the subject of evidence has

concluded that New Jersey’s prohibition against specific-conduct

evidence on cross-examination “is arguably the fairest and most

expedient” compared to other formulations of Rule 608.    See 1

McCormick on Evidence § 41, at 180 (Broun ed., 6th ed. 2006).

The restriction on the use of specific-conduct evidence is

preferable because of “the dangers of prejudice (particularly if

the witness is a party), of distraction and confusion, of abuse

by asking unfounded questions, and of the difficulties . . . of

                                   8
 
 


determining whether particular acts relate to character for

truthfulness.”                                 Ibid.            McCormick, therefore, suggests that our

current N.J.R.E. 608 is the superior approach.

                                                                         II.

              Significantly, the parties have not complained about the

current structure of N.J.R.E. 608, nor am I aware of critiques

of N.J.R.E. 608 coming from members of the bar or academia.                                               The

present version of N.J.R.E. 608 -- although different from its

federal counterpart -- is “consistent with our own jurisprudence

and values.”                             See Guenther, supra, 181 N.J. at 155; see also

Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E.

608 (2016) (noting that N.J.R.E. 608 reflects long-established

New Jersey law).                                     In many areas of the law, in construing our

State Constitution and adopting evidence and discovery rules,

this Court has charted a different path than the one followed by

the federal courts and many other courts.                                            See Guenther, supra,

181 N.J. at 151-54.                                            We have not hesitated to follow “a distinct

minority view” when doing so is consistent with our “unique

interests, values, [and] customs.”3                                            See Lewis v. Harris, 188

N.J. 415, 456 (2006).


                                                            
3 New Jersey stands with Illinois, Massachusetts, Oregon, and
Texas in barring evidence of specific instances of conduct to
impeach a witness’s character for truthfulness or
untruthfulness. See Ill. R. Evid. 608; Or. Rev. Stat. §
40.350(2); Tex. R. Evid. 608(b); Massachusetts Guide to Evidence
§ 608(b) (2017).
                                                                          9
 
 


     Our Evidence Rules Committee has not proceeded in blissful

ignorance of the distinction between the New Jersey and federal

approaches.   More than two decades ago, the Committee reviewed

the rules of evidence and recommended certain revisions to this

Court.   See Report of the Supreme Court Committee on the Rules

of Evidence, 129 N.J.L.J. 1 (Oct. 10, 1991).       At the time, the

Committee recognized that N.J.R.E. 608 does not align with

federal practice.   See id. at 25.     The Committee believed that

New Jersey’s evidence rules already “afford[] sufficient scope

for the effective impeachment of credibility.”      Ibid.   In

preserving N.J.R.E. 608’s current formulation, the Committee

recommended “retain[ing] present New Jersey practice by

rejecting the . . . federal rule which permits limited

admissibility of specific instances of conduct on cross-

examination.”    Ibid.   The Committee observed that this rejection

of the federal rule preserved the prohibition on specific-

conduct evidence contained in the first formal codification of

the 1967 New Jersey Rules of Evidence.     Ibid.

     N.J.R.E. 608’s predecessor, N.J.R.E. 22(d), provided,

“evidence of specific instances of his conduct, relevant only as

tending to prove a trait of his character, shall be

inadmissible.”   N.J.R.E. 22(d) (effective 1967).     Rule 22(d),

when prepared, was “representative of current New Jersey

[common] law.”   Report of the New Jersey Supreme Court Committee

                                  10
 
 


on Evidence 71 (Mar. 1963) (citing State v. De Paola, 5 N.J. 1

(1950)).    Accordingly, N.J.R.E. 608 is “consistent in philosophy

and effect” with our long-standing evidence rules.    See Report

of the Supreme Court Committee on the Rules of Evidence, supra,

129 N.J.L.J. at 25.

     Recently, this Court reaffirmed the wisdom of this

approach.   In Hernandez, supra, the defendants made extensive

discovery demands from the State for files relating to

investigations and prosecutions in which a cooperating witness

had participated, claiming their entitlement to discovery of

“false and inconsistent statements made by the Witness in the

unrelated investigations.”   225 N.J. at 453, 466.   We made clear

that “such statements would not be admissible under N.J.R.E. 608

because ‘evidence of specific instances of conduct -- other than

a prior conviction -- to prove the character trait of

untruthfulness is prohibited.’”    Id. at 466-67 (quoting

Guenther, supra, 181 N.J. at 140).     We therefore rejected the

defendants’ discovery request.    Id. at 466.

     Typically, we look for a special justification before we

alter a long-standing precedent or rule.    See, e.g., State v.

Witt, 223 N.J. 409, 414-15 (2015).     We have not received

complaints about the operation of N.J.R.E. 608 from members of

the judiciary, the bar, or the public.    Nothing has changed in

the twenty-five years since our Evidence Rules Committee last

                                  11
 
 


rejected the federal formulation of Rule 608.

                              III.

     Because I see no sound justification for abandoning this

State’s common-law rule codified in N.J.R.E. 608 in favor of the

federal rule, I would retain our current rule.




                               12
 
 



                                            SUPREME COURT OF NEW JERSEY
                                              A-86 September Term 2015
                                                       077434

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

             v.

THOMAS L. SCOTT (a/k/a JAMES
LONGENBERGER, and CHRISTOPHER
TUREAUD),

        Defendant-Appellant.

        JUSTICE PATTERSON, concurring in part and dissenting in

part.

        I concur with the majority’s holding that evidence of prior

instances in which defendant Thomas Scott’s mother, Darlene

Barbella, lied to law enforcement officers to protect her son

was not probative of bias, or admissible under N.J.R.E. 608 or

N.J.R.E. 404(b).    Ante at ___ (slip op. at 15-16).     Accordingly,

I agree with the majority that the trial court’s ruling in

limine, authorizing the State to cross-examine Barbella on her

prior misstatements to law enforcement, constituted error.

        I part company with the majority, however, with respect to

the question of harmless error.        Rule 2:10-2 directs that we

disregard error “unless it is of such a nature as to have been

clearly capable of producing an unjust result.”       That standard

requires “some degree of possibility that [the error] led to an


                                   1
 
 


unjust result.   The possibility must be real, one sufficient to

raise a reasonable doubt as to whether [the error] led the jury

to a verdict it otherwise might not have reached.”      State v.

Lazo, 209 N.J. 9, 26 (2012) (first alteration in original)

(quoting State v. R.B., 183 N.J. 308, 330 (2005)); State v.

Ingram, 196 N.J. 23, 49 (2008).       Rule 2:10-2 thus compels us to

review the entire record and carefully consider the impact of

the error in the context of the evidence as a whole.      See State

v. Wilder, 193 N.J. 398, 415 (2008); State v. Kelly, 97 N.J.

178, 218 (1984); State v. Allison, 208 N.J. Super. 9, 18-19

(App. Div.), certif. denied, 102 N.J. 370 (1985).

     In my view, the record strongly supports a finding of

harmless error in this case.   The trial court did not deprive

defendant of the opportunity to present credible testimony

explaining the presence of two decks of heroin in the left

pocket of his jeans when he was stopped by a police officer.       To

the contrary, the trial court’s evidentiary ruling affected only

one witness, Barbella.   Defendant represents that he did not

call Barbella to the stand due to concern that she would be

impeached with evidence of her prior acts.

     This case presents an unusual setting for a harmless error

analysis.   Here, we need not speculate as to what Barbella would

have told the jury had defendant called her as a witness.

Defendant represents that Barbella would have testified “to the

                                  2
 
 


same version of events” that was offered at trial by another

defense witness, family friend Lauren Halbersberg.    In my view,

that “version of events” -- that defendant’s mother accidentally

planted heroin in her son’s jeans without his knowledge -- is

nothing short of preposterous.   Defendant’s theory was,

unsurprisingly, rejected by the jury in defendant’s trial, and

would, in my view, clearly have been rejected with or without

the testimony of Barbella.

     Halbersberg told the jury that the heroin found in

defendant’s jeans did not belong to him, but to his cousin,

Jordan Scott, an individual whom she characterized as “nothing

but a problem.”   She testified that on November 27, 2012, she

was in defendant’s home with defendant and his cousin Jordan, in

a duplex apartment a floor above the home of defendant’s mother.

Halbersberg stated that as she sat in a recliner, engrossed in

Facebook posting, she observed Jordan sleeping nearby on a

couch, making strange noises as he slept.   She testified that at

the time, defendant was preparing to take a shower.

     Halbersberg told the jury that Barbella entered the room

twice while she sat in the recliner and Jordan Scott slept on

the couch.   She testified that on her second visit, Barbella

noticed heroin on a “magazine type table” attached to the couch.

According to Halbersberg, Barbella was “totally livid” when she

discovered the heroin and asked her nephew Jordan, “what the

                                 3
 
 


hell is this[?]”    Halbersberg did not testify that Jordan

responded to that inquiry.

        Halbersberg told the jury, “[b]asically, what [Barbella]

did was, she took the two bags [of heroin].    There was a pair of

jeans that were over, you know, the couch, folded over the

couch.    And she put them in the pocket.”   By Halbersberg’s

account, Barbella did nothing to verify whether the jeans

belonged to Jordan Scott, rather than to defendant -- who had

evidently removed his pants in order to take a shower.    Instead,

according to Halbersberg, Barbella simply put the heroin in the

jeans pocket and left the room.

        Halbersberg told the jury that defendant then emerged from

the shower, “[t]ook the, you know, pants, and his clothes,” and

put them on in the bathroom.    She testified that although she

was aware that there was heroin in the pocket of the jeans that

defendant had just put on, she did not mention that fact to

defendant as they walked out of the house together; she

attributed that omission to an undefined “commotion” at the

time.    Halbersberg stated that defendant was picked up by a

friend, and that she returned home later to learn, to her

distress, that defendant had been arrested and charged with

possession of heroin.    Despite her purported concern about

defendant’s arrest, Halbersberg inexplicably failed to disclose



                                   4
 
 


to law enforcement authorities that she had watched Barbella

place heroin in the pocket of defendant’s jeans.

              The narrative offered by Halbersberg -- a narrative that,

we are advised, Barbella would have duplicated had she testified

-- is simply incredible.                                       According to the testimony, Barbella

reacted to the discovery of heroin in her home not by contacting

the police or disposing of the heroin, but by placing it in the

pocket of a pair of jeans that she found in the room.                                      Barbella

purportedly took that step without verifying whether the jeans

belonged to her nephew or her son, who had removed his clothing

to take a shower, or warning anyone that drugs were present.

Halbersberg testified that she similarly said nothing to

defendant about what his mother had done -- an astonishing

omission, given Halbersberg’s admitted awareness that when

defendant left the apartment to go out with a friend, he was

wearing those very jeans.1                                      Having heard the testimony and

argument supporting the theory that the heroin was accidentally




                                                            
1  The majority suggests that Barbella would have testified that
after she found the heroin and placed it in the jeans, she
ordered Jordan Scott to leave her home, possibly anticipating
that he would take the heroin with him. Ante at ___ (slip op.
at 19). If so, her testimony would have diverged from that of
Halbersberg, who said nothing about any demand by Barbella that
Jordan Scott leave the home. Instead, Halbersberg testified
that as she and defendant departed, Jordan was “making noises or
whatever.”


                                                                     5
 
 


planted in defendant’s jeans, not a single juror found

reasonable doubt of defendant’s guilt.

              The majority concludes that “[t]he trial court’s ruling

‘alter[ed] [defendant’s] trial strategy,’ precluding him from

presenting -- and the jury from assessing -- a key witness who

would have provided both new and corroborative evidence.”                                  Ante

at ___ (slip op. at 20) (second and third alterations in

original) (quoting State v. P.S., 202 N.J. 232, 260 (2010)).

The majority’s contention that the trial court’s ruling changed

defendant’s trial strategy is belied by the record.                                  As

defendant confirmed before this Court, with or without Barbella,

his trial strategy was the same:                                   to contend that his mother put

two decks of heroin in his pocket without his knowledge and

that, consequently, he did not knowingly possess the drugs.2

Thus, Barbella’s testimony would not have afforded defendant a

trial strategy that was unavailable to him in her absence.3                                  The

strategy was employed -- and it failed.


                                                            
2  The fact that Barbella’s testimony would have duplicated
Halbersberg’s testimony strongly suggests that the error in this
case was harmless. See State v. Marshall, 148 N.J. 89, 188,
cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88
(1997) (finding no clear error in the setting of a post-
conviction relief application for precluded testimony that
“would have merely duplicated other testimony, and it would have
been contradicted by other evidence that the trial court found
to be credible”).

3  This case is vastly different from the two cases on which the
majority premises its harmless error holding, P.S., supra, 202
                                                               6
 
 


              The majority further contends that Halbersberg’s testimony

would have been corroborated and made more plausible by the

testimony of defendant’s mother, Barbella.                                           I respectfully

disagree.                       Barbella’s appearance at trial would have enabled the

State to further undermine defendant’s claim that he unwittingly

carried heroin on his person because of his mother’s disastrous

mistake.                     The prosecutor would undoubtedly have cross-examined

Barbella on her inexplicable conduct following the discovery of

heroin in her home:                                            her apparent assumption that the jeans were

not defendant’s notwithstanding the fact that defendant had

undressed to take a shower moments before, her decision to place

heroin in jeans that she believed were the property of her

unconscious nephew, and her failure to tell anyone what she had

done.               In my view, Barbella’s testimony would have undermined an

already farfetched theory, and her testimony would have done the

defense more harm than good.



                                                            
N.J. at 260, and Kelly, supra, 97 N.J. at 202-03. In P.S.,
supra, the Court held that the trial court’s admission of a
previous sexual assault allegation against the defendant was not
harmless error because it precluded the defendant from
presenting his critical defense that the child victim had
accused him of sexual assault because she had a vendetta against
him. 202 N.J. at 260. In Kelly, supra, the trial court barred
the defendant from presenting her expert on her defense of
battered women’s syndrome, thus precluding her from presenting a
self-defense justification to the charge that she murdered her
husband. 97 N.J. at 88, 202. In contrast, in this case
defendant had the opportunity to present his defense theory,
notwithstanding the trial court’s evidentiary ruling.
                                                                          7
 
 


     In short, although I concur with the majority’s

determination of the evidentiary issue presented by this case, I

do not consider the trial court’s evidentiary error to be

“clearly capable of producing an unjust result.”   R. 2:10-2.   I

view the trial court’s ruling to be harmless error.    I therefore

respectfully dissent from the majority’s judgment reversing

defendant’s conviction.

     Finally, I agree with the view expressed by Chief Justice

Rabner in his concurring opinion that a revision to N.J.R.E.

608, authorizing limited cross-examination regarding specific

conduct by a witness if that conduct is probative of the

witness’ character for truthfulness, should be considered.

Accordingly, I join in the Chief Justice’s concurring opinion.




                                8
 
