Permits court to admit evidence of prior offenses in certain criminal prosecutions.

A1398

ASSEMBLY, No. 1398

STATE OF NEW JERSEY

222nd LEGISLATURE

�

PRE-FILED FOR INTRODUCTION IN THE 2026 SESSION

Sponsored by:

Assemblywoman ELLEN J. PARK

District 37 (Bergen)

SYNOPSIS

���� Permits court to admit evidence of prior offenses in
certain criminal prosecutions.

CURRENT VERSION OF TEXT

���� Introduced Pending Technical Review by Legislative
Counsel.

��

An Act
concerning admissibility of evidence in certain
criminal prosecutions and supplementing Title 2C of the New Jersey Statutes.

����
Be It
Enacted
by the Senate and General Assembly of
the State of New Jersey:

���� 1.��� The Legislature finds
and declares that:

���� a.���� Domestic violence
accounts for a significant portion of law enforcement responses in New Jersey.�
According to the 2020 New Jersey State Police Domestic Violence Statistical
Summary, there were 63,058 reports of domestic violence to law enforcement. Of
those reports, law enforcement indicated that children actively were involved
or present during 14,930 incidents, is equivalent to 24 percent of the domestic
violence incidents.� There were 12,669 domestic violence incidents involving
prior orders issued against an offender, indicating prior acts of domestic
violence that supported issuance of a restraining order;

���� b.��� Incidents of domestic
violence often are extremely violent, witnessed by children, not prevented by
restraining orders, and very difficult to prosecute.� Criminal prosecution is
an effective deterrent to domestic violence offenders; however, due to the difficulty
in proving domestic violence cases, many cases are dismissed or downgraded to
such reduced charges that the deterrent value is lost;

���� c.���� There are numerous
challenges to successful prosecution of domestic violence offenses.� Many
victims become uncooperative for a variety of reasons, including fear, shame,
immigration issues, as well as financial or emotional dependency.� While these
cases may still be provable with evidence separate from victim testimony, they
are more difficult and more resource-intensive than cases in which the victims
are willing and able to cooperate.� Compounding the problem is the fact that
domestic violence crimes often have less corroborating evidence than other
crimes because they usually occur indoors, where the only witnesses are
children and dependents who may be subject to the same abuse and control as the
victim.� There often are no recording devices and limited availability of
corroboration outside of the victim�s report;

���� d.��� Child abuse is not
included in the definition of domestic violence in New Jersey, but these
prosecutions face the same challenges as domestic violence prosecutions.� In
fact, research related to co-occurrence of domestic violence and child abuse
has established that children exposed to domestic violence are at increased
risk for physical abuse and other forms of maltreatment.� A majority of those
studies indicate co-occurrence rates of 30 to 60 percent;

���� e.���� Current New Jersey
rules of evidence, specifically Rule 404(b), bars admission of prior domestic
violence acts of an alleged abuser, with very few exceptions.� Thus, when a
domestic violence crime is prosecuted, a jury will hear evidence of a specific
incident in an informational vacuum where the only evidence may be the victim�s
testimony, which is subject to cross examination by the alleged abuser�s
attorney. Furthermore, the alleged abuser is entitled to invoke the Fifth
Amendment right to silence, so that the abuser�s integrity is not questioned.�
As a result, even in situations with ongoing and escalating violence, evidence
for criminal prosecution is extremely limited;

���� f.���� Negative gender
stereotypes also weigh against criminal prosecution of these cases.� Victims
routinely delay reports of domestic violence and as a result suffer gross acts
of emotional, financial, and physical violence before the involvement of law
enforcement.� In addition, the average juror may have difficulty understanding
the behavior of the victim, because potential jurors who have experienced
domestic violence themselves or through a loved one generally are dismissed for
cause from jury service in domestic violence related cases;

���� g.��� Prosecution of sexual
assault cases presents similar challenges to domestic violence cases. Offenders
rarely commit sexual assaults in front of witnesses or with recording devices
in use, so the availability of corroborating evidence tends to be limited.�
Furthermore, �consent� is a unique defense to sexual assault crimes.� An
offender can imply in cross-examination that a victim willingly participated in
the sexual assault.� This defense has been raised successfully even in sexual
assault homicides involving strangulation.� An offender�s history of committing
unwanted sexual assaults is extremely relevant to the plausibility of this
defense, but it is almost always barred under Rule of Evidence 404(b);

���� h.��� Current New Jersey Rules
of Evidence surrounding prosecution of sexual assault charges also cause
unnecessary re-victimization.� Recently, a Middlesex County Superior Court
judge severed a sexual assault trial in which the defendant was charged with
molesting two minors at separate times in the home when each child�s mother was
not present.� The first set of allegations related to defendant molesting his
step-daughter starting at the age of eight, from May 2013 to May 2017.� The
second set of allegations related to defendant molesting his three-year old
niece in 2019.� The judge severed the case and ordered the prosecutor to
conduct two separate trials, one for each child abused.� Trials are difficult
and traumatic for witnesses and victims.� This ruling undoubtedly negatively
impacted the children who suffered at defendant�s hands and the family members
of these unfortunate victims.� Passage of this law would help limit the
possibility of such severance;

���� i.���� Unlike New Jersey, the
rules of evidence in a number of jurisdictions in the United States allow the
admission of prior acts of domestic violence; including California, Alaska,
Colorado, Illinois, Louisiana, Oregon, Texas and Wisconsin; and prior acts of
sexual assault, including California, Alaska, Arizona, Florida, Illinois,
Kansas, Louisiana, Maryland, Missouri, Nebraska, Texas, Virginia and
Wisconsin.� Some jurisdictions allow the evidence for any relevant purpose,
such as propensity, while other jurisdictions allow this evidence to provide
context to the existing relationship;

���� j.���� The proposed evidence
rule changes would bring New Jersey in line with these other jurisdictions, and
avoid unnecessary re-victimization from multiple trials in the future.� For
example, with respect to severance of cases involving more than one sexual assault
victim, other acts of sexual assault would be admissible under the new rule of
evidence; accordingly, there would be no undue prejudice in presenting evidence
related to another victim of sexual abuse; and

���� k.��� Therefore, it is
necessary and proper to revise New Jersey law to allow the admission of
evidence of prior acts of domestic violence in domestic violence prosecutions,
prior acts of child abuse in child abuse prosecutions, and prior sex offenses
in sex offense prosecutions, which would provide relevant, probative evidence
of an offender�s guilt and refute common defenses that historically have
enabled offenders to evade accountability. By bolstering the amount of
compelling evidence available in these cases, the likelihood of successful
prosecution of domestic violence, child abuse, and sex assault offenders will
be increased, diminishing the serious public safety threat they present.

���� 2.��� a.� Notwithstanding the
provisions of Rule 404 of the New Jersey Rules of Evidence or any other
provision, in a criminal prosecution involving a sex offense, evidence of the
defendant�s prior commission of any sex offenses may be introduced by the
prosecution, although it may not be offered to prove conduct on a specific
occasion and only may be admitted after a determination by the trial judge that
the evidence is admissible under Rule 403 of the New Jersey Rules of Evidence.�

���� b.��� For purposes of this
section, �sex offense� shall have the meaning set forth at subsection b. of
section 2 of P.L.1994, c.133 (C.2C:7-2).

���� 3.��� a.� Notwithstanding the
provisions of Rule 404 of the New Jersey Rules of Evidence or any other
provision, in a criminal prosecution involving domestic violence evidence of
the defendant�s prior commission of domestic violence may be introduced by the
prosecution, although it may not be offered to prove conduct on a specific
occasion and only may be admitted after a determination by the trial judge that
the evidence is admissible under Rule 403 of the New Jersey Rules of Evidence.�

���� b.��� For purposes of this
section, �domestic violence� shall have the meaning set forth in the
�Prevention of Domestic Violence Act of 1991,� P.L.1991, c.261 (C.2C:25-17 et
al.).

���� 4.��� a.� Notwithstanding the
provisions of Rule 404 of the New Jersey Rules of Evidence or any other
provision, in a criminal prosecution involving child abuse, evidence of the
defendant�s prior commission of child abuse may be introduced by the
prosecution, although it may not be offered to prove conduct on a specific
occasion and only may be admitted after a determination by the trial judge that
the evidence is admissible under Rule 403 of the New Jersey Rules of Evidence.�

���� b.��� For purposes of this
section, �child abuse� shall mean a crime or offense pursuant to an act
proscribed in N.J.S.2C:24-4, R.S.9:6-1, R.S.6-3, and section 1 of P.L. 1974,
c.119 (C.9:6-8.21).

���� 5.��� This act shall take
effect immediately.

STATEMENT

���� This bill permits the
admission of evidence of prior acts of domestic violence, child abuse, and sex
offenses in prosecutions for those offenses.

���� The bill permits this evidence
to be introduced by the prosecution, but not to be offered to prove conduct on
a specific occasion. The bill provides that the evidence may be admitted only
after a determination by the trial judge that the evidence is admissible under
Rule 403 of the New Jersey Rules of Evidence.�

���� Evidence of prior wrongs,
crimes, or acts typically is inadmissible in criminal actions. There are
exceptions to this rule and the bill would create additional exceptions in
criminal prosecutions for domestic violence, child abuse, and sexual offenses.
Prosecution of these offenses present unique challenges because offenders
rarely commit the offenses in front of witnesses or with recording devices in
use, so the availability of corroborating evidence tends to be limited.�

���� The rules of evidence in a
number of jurisdictions in the United States allow the admission of prior acts
of domestic violence including California, Alaska, Colorado, Illinois,
Louisiana, Oregon, Texas, and Wisconsin, and sexual assault, including California,
Alaska, Arizona, Florida, Illinois, Kansas, Louisiana, Maryland, Missouri,
Nebraska, Texas, Virginia and Wisconsin.� Some jurisdictions allow the evidence
for any relevant purpose, such as propensity, while other jurisdictions allow
this evidence to provide context to the existing relationship.

���� The proposed evidence rule
changes would bring New Jersey in line with these other jurisdictions, provide
relevant, probative evidence of an offender�s guilt, and refute common defenses
that historically have enabled offenders to evade accountability. Bolstering
the amount of compelling and relevant evidence available in these cases will
increase the likelihood of successful prosecution of domestic violence, child
abuse, and sexual assault offenders, diminishing the serious public safety
threat they present.