Proposed R. 3:10-3 -
Notice By The State - Expert Witness Testimony When
Testifying Expert Did
Not Participate In Underlying Tests
In State v. Williams, 219 N.J. 89 (2014)
the defendant alleged that his right to
confront witnesses against him pursuant to
the Sixth Amendment to the United States
Constitution and Article I, Paragraph 10 of the New Jersey
Constitution was violated
when a medical examiner, who did not
conduct the victim's autopsy, testified about both
his own and the absent medical examiner's
findings. The defendant did not object to the
medical examiner’s testimony presented by
the State at trial. Rather, defense counsel
cross-examined the medical examiner,
eliciting information seemingly consistent with the
defense. For the first time on appeal, the
defendant raised a Confrontation Clause claim,
“asserting that the medical examiner's
testimony was constitutionally barred because his
testimony did not give a first-hand
account of how the autopsy was performed and merely
passed through the findings of the absent
medical examiner.” State v. Williams, 219 N.J.
at 93. The Supreme Court considered the
limited issue “of whether the admission of the
testimony by the pathologist who did not
perform the autopsy violated defendant’s right
of confrontation.” State v. Williams, 219
N.J. at 97. It held that in the circumstances of
that case, the defendant's “failure to
object on confrontation grounds and his decision to
cross-examine the medical examiner
constitute a waiver of his confrontation right.” State
v. Williams, 219 N.J. at 93.
The Court also observed that
“Confrontation Clause objections to the expected
testimony of a State’s expert witness on
the ground that he or she did not conduct,
supervise, or participate in a scientific
or other such test are best addressed before trial to
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avoid surprise or unfairness.” State v.
Williams, 219 N.J. at 102. With respect to
developing a pretrial notice and demand
procedure, the Court stated that “at a reasonable
time before trial, but no later than the
pretrial conference, absent extenuating
circumstances, the State should notify the
defendant of its intention to call an expert
witness who did not conduct, supervise, or
participate in a scientific or other such test
about which he or she will testify. After
the State gives notice, the defense should be
required, within ten days, or longer if
necessary, to notify the State that it objects to the
expected testimony of the expert witness
on Confrontation Clause grounds.” State v.
Williams, 219 N.J. at 102 (citing
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 326-27,
129 S. Ct. 2527, 2541, 174 L. Ed. 2d 314,
330-31 (discussing notice and demand laws)).
In footnote 2, the Court stated:
Notably, N.J.S.A. 2C:35-19(c) provides for
notice and
demand in cases involving the use of
controlled-dangeroussubstance
reports and certificates issued by State
Forensic
Laboratories.
[State v. Williams, 219 N.J. at 102 at
n.2. (citing State v.
Simbara, 175 N.J. 37, 48-49 (2002)
(construing notice-anddemand
procedure of N.J.S.A. 2C:35-19 to allow
defendant to
assert or waive right to confront
certificate’s preparer))].
The Court referred “to the Supreme Court
Committee on Criminal Practice the crafting of
a rule, with any needed improvements, on
pretrial notice and demand.” State v.
Williams, 219 N.J. at 102. The Committee
is recommending adoption of new R. 3:10-3,
which is primarily derived from the
Williams case and the procedures outlined in
N.J.S.A. 2C:35-19(c).
115
Paragraph (a) of the proposed rule
addresses the notice requirements applicable to
the State. It provides that when the State
intends to call an expert witness to testify at
trial, and that expert did not conduct,
supervise, or participate in a scientific or other such
test about which he or she will testify,
the State shall serve written notice upon the
defendant and defense counsel of the
intent to call that witness. The written notice shall
include a proffer of the intended
testimony, all reports pertaining to such testimony, and
any underlying tests. For purposes of the
rule, the term “test” includes any test,
demonstration, forensic analysis or other
type of expert examination.
Regarding the timeframe for the State to
provide notice, in Williams, the Court
stated that notice should be provided “at
a reasonable time before trial, but no later than
the pretrial conference, absent
extenuating circumstances.” State v. Williams, 219 N.J. at
102. N.J.S.A. 2C:35-19(c) provides that
“[w]henever a party intends to proffer in a
criminal or quasi-criminal proceeding, a
certificate executed pursuant to this section,
notice of an intent to proffer that
certificate and all reports relating to the analysis in
question, including a copy of the
certificate, shall be conveyed to the opposing party or
parties at least 20 days before the
proceeding begins.” In paragraph (a) of the proposed
rule, the Committee is recommending that
written notice must be served by the State at
least twenty days before the pretrial
proceeding begins, but in any event no later than the
pretrial conference absent extenuating
circumstances. The “extenuating circumstances”
language allows for delayed notice by the
State, when warranted. For example, when
there is the death of an expert. The
reference to the “pretrial conference” refers to the
conference that occurs at plea cutoff.
(See R. 3:9-3(g)).
116
Paragraph (b) of the proposed rule
addresses objections by the defendant. It
provides that if the defendant intends to
object to the expert testimony, the defendant
shall serve written notice upon the State
of any objection within ten days of receiving the
State’s notice of intent. This language is
derived from both the Williams case and
N.J.S.A. 2C:35-19(c). In Williams, the
Court explained that “[a]fter the State gives
notice, the defense should be required,
within ten days, or longer if necessary, to notify
the State that it objects to the expected
testimony of the expert witness on Confrontation
Clause grounds.” State v. Williams, 219
N.J. at 102. N.J.S.A. 2C:35-19(c) states that
“[a]n opposing party who intends to object
to the admission into evidence of a certificate
shall give notice of objection and the
grounds for the objection within 10 days upon
receiving the adversary's notice of intent
to proffer the certificate.”
Paragraph (b) of the proposed rule further
provides that in the notice of objection,
the defendant must specify the grounds for
such objection, including any Confrontation
Clause grounds under either the United
States or New Jersey State Constitution. This
language tracks the Williams opinion, set
forth above, that a defendant must “notify the
State that it objects to the expected
testimony of the expert witness on Confrontation
Clause grounds.” State v. Williams, 219
N.J. at 102.
Paragraph (c) of the proposed rule governs
the timeframe for the court to decide
the admissibility of the expert testimony
after a defendant raises an objection. N.J.S.A.
2C:35-19(c) provides “[w]henever a notice
of objection is filed, admissibility of the
certificate shall be determined not later
than two days before the beginning of the trial.”
The Committee is proposing that paragraph
(c) of the proposed rule provide that when the
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defendant files an objection, “the court
shall decide admissibility of the testimony on the
grounds alleged no later than seven days
before the beginning of trial.” This 7-day time
frame is designed to give the party that
receives an unfavorable ruling an opportunity to
either move for a stay or file an
interlocutory appeal.
If a defendant objects to the notice
provided by the State, paragraph (c) is not
designed to give the judge authority to
procedurally deny the objection without
considering the merits of the objection.
Rather, the Committee was of the view that per
the Williams case, if a defendant objects,
the court must accept the objection and then
make a separate substantive ruling on
admissibility of the testimony. The Committee was
in agreement that the proposed language in
paragraph (c) provides a procedural
mechanism for notice by the State, an
opportunity for the defendant to object to a
substitute expert and a timeframe for the
court to rule on the objection. It agreed that the
substantive standard for the judge to rule
on the objection falls under the evidence rules
and related case law, as opposed to the
court rules.
Paragraph (d) of the proposed rule governs
procedures when a party fails to
comply with the time limitations for
notice and objections set forth in the rule. For the
State’s failure to comply with the notice
requirements, the Committee is proposing that
“[t]he State’s failure to comply with the
time limitations regarding notice of intent
required by this rule shall for good cause
shown extend the time for defendant to object
pursuant to paragraph (b) and for the
court to decide admissibility of the testimony
pursuant to paragraph (c) but in any
event, the court may take such action as the interest
of justice requires.” For the defendant’s
failure to object, the Committee is proposing
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that “[t]he defendant’s failure to comply
with the time limitations regarding the notice of
objection required by this rule shall
constitute a waiver of any objection to the admission
of the expert testimony.” The defendant’s
failure to specify a particular ground for such
objection shall constitute a waiver of any
ground not specified, including any
Confrontation Clause ground under either
the United States or New Jersey State
Constitution.” The waiver language
codifies the holding in Williams that in the
circumstances of that case, the
defendant's “failure to object on confrontation grounds
and his decision to cross-examine the
medical examiner constitute a waiver of his
confrontation right.” State v. Williams,
219 N.J. at 93.
Paragraph (e) of the proposed rule
explains that the time limitations set forth in the
rule “shall not be relaxed except upon a
showing of good cause.”
While reviewing the proposed rule, the
Committee engaged in discussions about
whether a court rule is necessary to
address notice and demand where the State intends to
call a substitute expert to testify at
trial. In support of the rule proposal, the Committee
discussed that in the Williams opinion,
the Court expressly referred “to the Supreme
Court Committee on Criminal Practice the
crafting of a rule, with any needed
improvements, on pretrial notice and
demand.” State v. Williams, 219 N.J. at 102. As
such, the proposed rule alerts the parties
and the court as to the issue of notice when the
State intends to call an expert witness to
testify at trial when that expert witness did not
conduct, supervise, or participate in a
scientific or other such test about which he or she
will testify. It also provides a framework
for the time to provide notice, to object and for
the court to rule upon admissibility of
the expert testimony.
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The Committee also discussed the view that
notice and demand for drug cases
would be governed by N.J.S.A. 2C:35-19 and
therefore, the proposed rule may only
apply to notice of expert testimony in
other types of cases. Some members expressed the
view that this issue may arise only in
limited circumstances or would be encountered
without an objection, and therefore
questioned whether a rule was necessary. Thus, while
the Committee is recommending adoption of
proposed new R. 3:10-3, some members
expressed the view that a rule may not be
necessary to address this situation.
The proposed language for new R. 3:10-3
follows.
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3:10-3. Notice By The State - Expert
Witness Testimony When Testifying Expert Did
Not Participate In Underlying Tests
(a) Notice by the State. Whenever the
State intends to call an expert witness to testify
at trial and that expert witness did not
conduct, supervise, or participate in a scientific or
other such test about which he or she will
testify, the State shall serve written notice upon
the defendant and counsel of intent to
call that witness, along with a proffer of such
testimony, all reports pertaining to such
testimony, and any underlying tests, at least 20
days before the pretrial proceeding
begins, but in any event no later than the pretrial
conference absent extenuating
circumstances. For purposes of this rule the term “test”
shall include any test, demonstration,
forensic analysis or other type of expert
examination.
(b) Objection by the Defendant. If the
defendant intends to object to the expert
testimony, the defendant shall serve
written notice upon the State of any objection within
10 days of receiving the State’s notice of
intent. In the defendant’s notice of objection,
he or she must specify the grounds for
such objection, including any Confrontation
Clause grounds under either the United
States or New Jersey State Constitution.
(c) Determination. Whenever a defendant
files a notice of objection specifying the
grounds for objection, the court shall
decide admissibility of the testimony on the grounds
alleged no later than seven days before
the beginning of trial.
(d) Failure to Comply With Time
Limitations. The
defendant’s failure to comply with
the time limitations regarding the notice
of objection required by this rule shall constitute
a waiver of any objection to the admission
of the expert testimony. The defendant’s
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failure to specify a particular ground for
such objection shall constitute a waiver of any
ground not specified, including any
Confrontation Clause ground under either the United
States or New Jersey State Constitution. The State’s failure to
comply with the time
limitations regarding notice of intent
required by this rule shall for good cause shown
extend the time for defendant to object
pursuant to paragraph (b) and for the court to
decide admissibility of the testimony
pursuant to paragraph (c) but in any event, the court
may take such action as the interest of
justice requires.
(e) Time Limitations. The time limitations
set forth in this rule shall not be relaxed
except upon a showing of good cause.
