Kenneth Vercammen, Esq. 732-572-0500 Edison, NJ

Saturday, September 5, 2009

Rule 104 Hearing

Rule 104 Hearing

Generally, when the qualifications of a person to
be a witness are at issue, e.g., whether a child
victim is old enough to know he or she must tell
the truth, whether an adult is mentally

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incompetent, whether a witness qualifies as an
expert, or when the admissibility of evidence is at
issue, e.g., hearsay evidence, pretrial identification
of a defendant, or the existence of a privilege is at
issue, e.g., lawyer-client, physician-patient, a
hearing is held. This type of hearing is called a
Rule 104 Hearing and is named after the Evidence
Rule that requires it. See, Evidence Rule 104.

h. Common Types of Rule 104 Hearings
i. Wade Hearing21

When the prosecution intends to offer proof of an
out-of-court and/or an in-court identification of the
defendant, the defense will often object to the
admission of this evidence and seek to have the
court exclude the results of the identification.
Very often the defense will allege the
identification is unreliable because it was unduly
suggestive. When this occurs, the judge may hold
a pretrial hearing, called a Wade hearing. The sole
purpose of the hearing is to decide whether to
exclude the evidence of the identification. See R.
3:9-1(d). Note that judges are not required to hold
a Wade hearing just because the defendant
demands it. In State v. Ortiz, 203 NJ Super. 518,
497 A.2d 552 (App. Div.), cert. denied, 102 NJ
335 (1985) the Appellate Division held it was not
required where the defendant is unable to proffer
any pretrial evidence that police procedures
directed at identification were impermissibly
suggestive.

ii. Krol Hearing22

If the defendant is acquitted of a criminal offense
because he or she was legally insane at the time the

21
The name associated with this hearing is derived from the Supreme Court's decision in United States v. Wade,
388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed. 2d 1149 (1967).
22
Hearing required by State v. Krol, 68 NJ 236 (1975)

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offense was committed, the defendant is not
automatically set free. The defendant can only be
set free if the court finds, at a subsequent hearing
called a Krol hearing, that the defendant may be
released without danger to the community or to
himself or herself. When a defendant is not set
free, the defendant is committed to a mental health
facility and is treated as a person civilly
committed. Periodic Krol hearings are required to
judge the defendant's mental condition. Review
hearings occur at the following intervals: three
months from the date of the first hearing; nine
months from the date of the first hearing; twelve
months from the date of the first hearing; and at
least annually thereafter. See R. 3:19-2; N.J.S.A.
2C:4-8; N.J.S.A. 2C:4-9; R. 4:74-7.

iii. Competency Hearing

It is possible for a defendant to be legally
responsible (sane) at the time of the commission of
the offense but yet be incompetent to stand trial.
When competency to stand trial is raised, a pretrial
hearing is held. At that hearing, the judge
determines whether the defendant understands the
proceedings and has the present ability to consult
intelligently with counsel in order to prepare a
defense to the charges. If the defendant is unable
to do so, the defendant is deemed incompetent to
stand trial. The defendant is then committed to a
mental health facility. See N.J.S.A. 2C:4-4;
N.J.S.A. 2C:4-6. If the person is judged
incompetent to stand trial, that person cannot be
tried unless his/her competency is regained.

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iv. Jackson/Denno Hearing 23

If the defendant confesses to a crime and thereafter
alleges that the confession was involuntary, e.g.,
coerced, a hearing is held to determine whether the
confession was voluntary. If the judge rules that
the confession was made voluntarily, the
confession is admissible during trial. If the judge
rules the confession was coerced, the confession is
suppressed.

v. Driver Hearing 24

If the State plans to introduce tape recordings at
trial, and the defendant objects, a hearing is held to
determine whether the prerequisites for admission
of the recordings have been met. At the hearing
the State must show that: (1) the recording device
was capable of taping the conversation; (2) the
operator of the recording device was competent to
operate the recording device; (3) the recording
device was authentic and correct; and (4) the
recording has not been altered or tampered with.

vi. Miranda Hearing 25

Prior to interrogation, the police must advise a
defendant of his or her rights, e.g., right to remain
silent, right to be represented by counsel, right to
have counsel appointed if he or she cannot afford
an attorney. After a defendant is properly advised
of his or her rights, any confession the defendant
makes can be used as evidence in court. If the

23
The name associated with this hearing is derived from the U.S. Supreme Court's decision in Jackson v.
Denno, 378 U.S. 368 (1964).
24
The name associated with this hearing is derived from the New Jersey Supreme Court's decision in State v.
Driver, 38 NJ 255 (1962).
25
In Miranda v. Arizona, 384 US 436 (1966) the U.S. Supreme Court said that, prior to a custodial interrogation,
defendants must be advised of their rights. Advising defendants of their rights has become known as giving
defendants their Miranda warning.

defendant alleges that he or she was not advised of
his or her rights and seeks to have any statements
made suppressed, a hearing is held. If the
defendant is successful, any statements made by
the defendant cannot be used as evidence in court.

vii. Sands Hearing 26

If the State intends to use a prior conviction
against the defendant at the trial, and there is a
question as to whether the conviction is admissible
into evidence, a Sands hearing is held. If the
judge finds the conviction is admissible, it can be
used as evidence during the trial.