Our case law reflects some ambivalence about whether the Confrontation Clause of the New Jersey Constitution, which has roots in our original state constitution of 1776, should be read more broadly than its federal counterpart. Compare State v. Daniels (“There is nothing we are referred to, or can find, in its wording, intent or history to suggest that this paragraph of the New Jersey Constitution grants a defendant greater protection than the Sixth Amendment), with State v. Laboy (“it can fairly be said that the New Jersey Supreme Court has been more protective of the defendant’s right to cross-examine than the Federal counterpart.”) In any event, we are unpersuaded in the present circumstances that the state constitution requires any greater protection for accused persons to cross-examine hearsay declarants about their out-of-court testimonial assertions than the United States Supreme Court has pronounced in Crawford and Davis.
For decades our state courts, as other courts in the nation, have routinely admitted certain hearsay statements as part of criminal and quasi-criminal prosecutions, provided that those statements satisfied the Sixth Amendment’s two-pronged standards of reliability set forth in Ohio v. Roberts. Now Roberts has been overruled, and categories of hearsay formerly treated as admissible are currently, post-Crawford, subject to exclusion if they are deemed testimonial.
Unless our Supreme Court determines otherwise, we discern nothing in the origins, traditions, structure, or policies of our state constitution’s confrontation clause that would warrant taking a more expansive approach to the right of cross-examination than that which is presently reflected in the federal Sixth Amendment case law under Crawford. Nor does the confrontation right appear to be a subject of unique local concern. See State v. Hunt (Handler, J., concurring) (considering, among other things, the legislative history of a state constitutional provision, subject matters of “particular state interest or local concern,” “differences in structure between the federal and state constitutions,” and a “state’s history and traditions” as germane to deciding whether state constitutional guarantees should exceed those assured under parallel federal constitutional provisions). If, for the sake of argument, post-Crawford federal Sixth Amendment jurisprudence develops in a fashion that renders the hearsay statements at issue here “non-testimonial,” we perceive no independent state constitutional basis for constraining their admission into evidence.
The appellate panel demonstrates an implicit bias towards lock-stepping with the federal constitution as opposed to bestowing more expansive rights. It capitalizes “Confrontation Clause” when referring to the federal Sixth Amendment while writing it in lower case when referring to the state constitution’s confrontation clause.
