On July 18, 2016, the New Jersey Supreme Court issued a unanimous opinion in the case of State v. Stephen Scharf. The Court addressed whether it was error for the trial court to admit hearsay statements from the victim’s friends and her therapist, including statements that the victim repeatedly told the witnesses of her fear of defendant. The Court further considered whether the evidence, cumulatively, constituted an abuse of the trial court’s discretion which caused defendant’s trial to be unjust.
In 2011, defendant was convicted of murdering his wife. She fell off a cliff at the Palisades one evening in 1992, shortly after filing for divorce from defendant. At trial, Defendant claimed it was an accident. The State’s evidence included statements made by the wife to her friends and therapist, which were proposed for admission as going to her state of mind. Note that the state is not allowed to introduce evidence of bad acts by the defendant which would only tend to show that he was a bad person with a propensity for criminal behavior. Such evidence is considered unduly prejudicial in that it essentially turns a trial into a popularity contest and invites a jury to convict based on a disdain for the defendant as opposed to a fair consideration of the evidence linking him to the crime at issue.
The defense moved to exclude the hearsay statements. The trial court denied defendant’s motions. The court found the wife’s state of mind to be “highly probative,” and determined that her statements would provide evidence to “directly counter” defendant’s assertion that the fall was accidental. The court emphasized that the statements would be admitted solely to show Jody’s state of mind, and directed the attorneys to prepare limiting instructions to make that clear. Concerning the proposed testimony by the wife’s therapist, the court found that one of the statements — namely, that the wife had refused defendant’s invitation to the cliffs and that she had never been there before — was admissible under N.J.R.E. 803(c)(3). The court allowed the admission of other statements made to the therapist as statements made for the purpose of medical diagnosis and treatment of depression. Again, the court asked the attorneys to prepare an appropriate limiting instruction.
On the third day of defendant’s trial, the State called five witnesses to testify to the statements at issue. The witnesses claimed that the wife repeatedly told them of her fear of defendant, particularly after she had served him with a divorce complaint, and told them that she had declined defendant’s request to go to the Palisades cliffs with him shortly before her death. Defense counsel registered an objection when the fourth witness was called, claiming that the testimony was cumulative. The court allowed the testimony to proceed, and the remaining two witnesses were brief. Throughout the testimony of those witnesses, defendant did not request a limiting instruction.
Over the next seven days of trial, the State presented testimony from fourteen witnesses concerning physical and forensic evidence obtained during the investigation into the wife’s death. The evidence included testimony that her injuries were “not consistent with an innocent fall,” and that she “had to have been propelled from that point” on the cliffs given that a body from an innocent fall “could not go out that far.”
Following summations, the trial court instructed the jury that, “if you find that she made these statements then you may consider them only for the purpose of determining her state of mind at the time those statements were made and for no other reason.” While the law requires us to presume that jurors understand and follow instructions like these, this presumption probably has a lot more to do with wanting to reach a final decision on a case, than it does with common sense or logic. Since the alternative is to reverse a conviction and force the parties to start a long and costly trial process from the beginning, potentially leading to a new appeal as well, appellate courts have a strong motivation to uphold convictions.
Defendant was convicted of first-degree purposeful and knowing murder, N.J.S.A. 2C:11-3(a)(1) and N.J.S.A. 2C:11-3(a)(2). An appellate panel reversed the conviction, concluding that the trial court erred in admitting the statements. To the panel, Jody’s “expressions of fear of defendant were neither relevant nor material” and also were “highly prejudicial and clearly cumulative.”
The New Jersey Supreme Court reversed the Appellate panel and held that state-of-mind hearsay statements by a deceased about fear of a defendant, who later advances in his or her defense in a homicide prosecution a claim that the victim’s death was accidental, are admissible for the purpose of proving the declarant’s state of mind under N.J.R.E. 803(c)(3). Such evidence is relevant when the door is opened by the defense. Thus, in hindsight, the defendant’s trial attorney would probably choose a different defense strategy, knowing that it was only by claiming that the wife’s fall was an accident that the State was allowed to introduce the wife’s prejudicial statements concerning the defendant.
The Evidence Rules limit the admissibility of hearsay testimony. One exception allowing for the admission of hearsay is the state-of-mind exception, N.J.R.E. 803(c)(3). When a matter places a declarant’s state of mind in issue, the Rule allows a declarant’s out-of-court statement to be admitted for that singular purpose. The state-of-mind exception does not broadly allow admission of a victim’s recounting of a defendant’s threats. However, declarations of fear can be admitted to establish that the decedent was not the aggressor, did not commit suicide and was not accidently killed, provided that those matters satisfy the relevancy requirement. When accident is proffered as the explanation for a death, the state-of-mind hearsay exception has been used to admit testimony about a decedent’s prior statements. Other jurisdictions similarly recognize that a homicide victim’s prior statements of fear of a defendant are both relevant and admissible – through state-of-mind testimony — if the defendant in the case is claiming that an accident occurred.
New Jersey’s case law previously suggested that such evidence was admissible. The Court now holds that state-of-mind hearsay statements by a deceased about fear of a defendant, who later advances in his or her defense in a homicide prosecution a claim that the victim’s death was accidental, are admissible for the purpose of proving the declarant’s state of mind. Such evidence is relevant when the door is opened by the defense, as occurred here.
Having determined that state-of-mind evidence is relevant when defendant advances an accidental-death theory, the Court assesses whether the trial court abused its discretion in admitting the evidence. The court was specific in what it allowed: statements of fear of defendant; statements about defendant’s abusive conduct toward Jody, but not specific acts; statements about her fear of heights; and statements about her intent to continue with the divorce. The court cautioned that it was allowing limited reference to alleged domestic violence only for the “singular purpose” of showing Jody’s state of mind. The reality, however, is that jurors are bombarded with scores of pages of instructions after observing trials that usually take several weeks to complete. That is why it is unlikely that limiting instructions like these are effective means in ensuring that jurors do not convict based on disdain for the defendant as opposed to the actual evidence of the crime at issue.
The Supreme Court went on to note that the defense did not object to the content of the testimony of the first three witnesses who testified to statements Jody made to them. Nor did counsel request or suggest any limiting instruction at the time. Out of fairness to defense counsel, s/he may have been concerned with the fact that jurors do not like objections and, notwithstanding any instructions they are given to the contrary, often presume that the objecting party is trying to hide something.
Having addressed the arguments raised in this matter, the Supreme Court highlights its concerns about dangers associated with use of state-of-mind testimony about a declarant’s fear of a defendant. Care must be taken to guard against undue prejudice and the risk that the jury may misuse the evidence. Accordingly, trial courts are obligated to perform an express Rule 403 weighing of evidence in addition to an assessment for relevance of the victim’s state-of-mind testimony under Rule 803(c)(3). A weighing for undue prejudice should follow a review for relevance under Rule 803(c)(3). In addition to the court’s ability to exclude such evidence, the trial court should consider limiting its amount, including redacting or sanitizing it as appropriate, to balance the interests of the proponent of the testimony and that of the party against whom it is used. Further, a proper limiting instruction is necessary to guard against the risk that the jury will consider the victim’s statements of fear as evidence of the defendant’s intent or actions. The better practice, whether requested or not, is to tailor the charge on how to use the state-of-mind evidence to the facts and to tell the jury how the evidence may be used and how it may not be used.