SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
State v. Azem Cuni (A-141-97)
Argued September 29, 1998 -- Decided June 14, 1999
HANDLER, J., writing for a majority of the Court.
The issue posed by this appeal is whether, in a sexual assault case in which the State claims the
victim lacked the mental capacity to withhold consent to sexual acts, the Rape Shield Law, N.J.S.A. 2C:14-7,
may be applied to exclude evidence of past sexual conduct that is offered to show that the victim had the
mental capacity to consent.
The victim, T.O., was thirty years old at the time of the offense and living with her younger sister
and mother. She had been tested as being in the borderline range for being mentally deficient. Defendant,
a refugee unskilled in English, also had low psychological testing scores. The fact that English is not
defendant's first language might have skewed the test results.
Defendant met T.O. when he delivered a sandwich to T.O. at her mother's house. Defendant kissed
T.O., although T.O. testified she "didn't want it." Two or three weeks later, T.O. ordered another sandwich
for delivery. After twenty-five minutes passed, T.O. went to the living room to wait for the delivery. There
she encountered defendant standing in the room. T.O. testified that defendant then "start[ed] getting funny
with me. He start[ed] kissing me on my lips and then he start[ed] going down in my pants . . . ." T.O. said
she did not want to kiss defendant, asked defendant to leave and went to her room to get money to pay for
the sandwich. Defendant followed T.O. to her room. T.O. testified that: "We go over to my bed. He sits
me down on the corner and then he proceeds to pull my pants -- my undershorts and my slacks down to my
ankles and he does his thing." By "does his thing," T.O. meant that defendant had sexual intercourse with
her against her will.
About two weeks later, defendant returned to T.O.'s house and entered without knocking.
Defendant asked T.O. if she liked him, and she told him she would have to think about it and for him to
come back later. Defendant apparently left. According to T.O., "Then it clicks. I knew exactly what he did."
She called a neighbor and asked her if she could come over because "somebody sexually molested me." At
her neighbor's instructions, T.O. called her mother.
After a detective interviewed T.O., he went to defendant's place of employment. Defendant agreed
to be interviewed at the police station, and subsequently waived his constitutional rights. Defendant admitted
to having sex with T.O., stating that he "did her" and that he "guessed" that she wanted to have sex with him
as well. Defendant told the detective that he was only familiar with T.O. from delivering food to her home a
couple of times. The detective never asked defendant whether he believed that T.O. was mentally defective.
At trial, defendant claimed that his sexual encounters with T.O. were consensual, that she was not
mentally defective, and that, if she was mentally defective, he did not know it nor should he have known.
Defendant testified that he asked for and received permission to kiss T.O. before doing so. He also claimed
that when he asked T.O. if she wanted "to do it," she led him to the bedroom where they had sex.
The State's expert, a clinical psychologist, concluded that T.O. "lacked any functional ability to
understand the sexual assault and . . . to stop the sexual assault . . . ." Defendant's expert, a psychologist,
testified that T.O. knew the nature of the sexual acts and that she had the right to say no. During the trial,
the chief issue was the admission of evidence of T.O.'s two prior sexual experiences, the last of which
occurred eleven years before the encounter with defendant. The two experts referred to T.O.'s description of
these two incidents in their reports. According to the State's expert, the first incident occurred when T.O.
was 19 and amounted to a sexual assault. Concerning the second incident, the expert quoted T.O. as saying
the boy insisted and she wasn't interested in sex. She added, "I want to be a straight person. Not get
married. Have no kids" The report of defendant's expert related T.O.'s description of these incidents quite
differently. According to that expert, T.O. indicated that in each instance she "let" the boys have intercourse
with her. He described them as consensual encounters.
On cross-examination of the State's expert, defense counsel asked whether the expert had questioned
T.O. about her prior sexual conduct. After the expert answered that he had, the State objected, arguing the
testimony was barred by the Rape Shield Law. In response to the court's inquiry, the expert explained that
he asked T.O. about her sexual past "to understand what she knew about sexuality and intercourse." He
further stated that the history "was just one piece" of the information he used to conclude that T.O. lacked
the capacity to consent.
The trial court ruled the evidence inadmissible. It noted that defense counsel had failed to give
notice of his intent to use such evidence prior to trial as required by the Rape Shield Law. On the merits,
the trial court reasoned that the passage of time made relevance of the incidents suspect; the incidents were
not similar enough because they involved "friends" not a "stranger;" and the jury would be distracted by
delving into the circumstances of those incidents and assessing T.O.'s mental capacity at that point in time.
Defendant was convicted of first degree aggravated sexual assault, second degree sexual assault,
burglary and trespass, and sentenced to twelve years in prison. The Appellate Division reversed, finding that
the trial court erred by not instructing the jury that in order to convict defendant of burglary and aggravated
sexual assault based on burglary, defendant had to have entered T.O.'s house with the intention to engage in
sexual penetration without T.O.'s consent. Because this error was capable of producing an unjust result, the
Appellate Division reversed both the aggravated sexual assault and the burglary convictions. One judge
dissented on the ground that defendant's sexual assault convictions should also be reversed because the
exclusion of T.O.'s two past sexual experiences violated defendant's right of confrontation.
Defendant appealed as of right to this Court based on the dissent. His petition for certification on
other issues was denied.
HELD: The relevance and probative worth of T.O.'s prior sexual experiences are not clear and substantial,
and any probative value is clearly outweighed by its prejudicial effect and capacity to confuse the jury.
Therefore, the evidence was properly excluded.
1. The Rape Shield Law provides that if the defendant seeks to admit evidence of prior sexual conduct by
the victim, he must apply for a court order before the trial. Under the Rape Shield Law, non-compliance
results in the evidence being excluded. However, discretion in the application of that remedy is required if
under the facts of a case preclusion violates a defendant's right to confront witnesses. Here, the State's
legitimate interests in protecting against surprise, harassment, and undue delay, and the absence of any
reasonable excuse or alternative remedies, support the procedural exclusion of the evidence. (pp. 13-20)
2. Whenever the confrontation rights of a defendant are considered in connection with the State's interest in
excluding evidence under the Rape Shield Law, courts must consider whether the evidence is relevant to the
defense and if so, whether its probative value outweighs its prejudicial effect. Because T.O.'s past sexual
experiences occurred eleven years earlier, any evidential connection is remote and attenuated. Also, past
consensual sexual experiences, as opposed to previous incidents where a victim effectively refused consent,
are not sufficiently probative on the issue of a victim's capacity to consent. (pp. 20-27)
3. Even assuming the relevance of T.O.'s prior sexual experience, the scant probative value of that evidence
is outweighed by its prejudice. The Rape Shield Law was designed to protect the privacy and dignity of the
victim. A victim should not have to forfeit those protections because she may be mentally challenged. Also,
evidence of these remote sexual experiences would have easily mislead and distracted the jury. (pp. 27-33)
The judgment of the Appellate Division is AFFIRMED.
JUSTICE STEIN, filed a separate dissenting opinion, noting that defendant's convictions were
substantially predicated on the testimony of the State's expert who concluded that T.O. lacked capacity to
consent. He expresses the view that the majority's application of the Rape Shield Law here prevented
defense counsel from adequately cross-examining the State's expert and deprived defendant of his
constitutional right of confrontation.
JUSTICES POLLOCK, O'HERN, and GARIBALDI join in JUSTICE HANDLER's opinion.
JUSTICE STEIN has filed a separate dissenting opinion, in which CHIEF JUSTICE PORITZ and
JUSTICE COLEMAN join.
SUPREME COURT OF NEW JERSEY
A-
141 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AZEM CUNI,
Defendant-Appellant.
Argued September 29, 1998 -- Decided June 14, 1999
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 303
N.J. Super. 584 (1997).
J. Michael Blake, Assistant Deputy Public
Defender, argued the cause for appellant
(Ivelisse Torres, Public Defender, attorney).
Catherine A. Foddai, Deputy Attorney General,
argued the cause for respondent (Peter
Verniero, Attorney General of New Jersey,
attorney).
The opinion of the Court was delivered by
HANDLER, J.
In this case, defendant was convicted of the sexual assault
of a mentally defective person. At trial, defendant attempted to
introduce evidence of the victim's past sexual experiences
through the cross-examination of the State's expert psychologist.
The purpose of that evidence, according to defendant, was to
demonstrate that the victim had the capacity to consent to sexual
relations despite her mental condition. The trial court ruled
that defendant could not elicit the evidence.
The issue posed by this appeal is whether, in a sexual
assault case in which the State claims the victim lacked the
mental capacity to withhold consent to sexual acts, the New
Jersey Rape Shield Law, N.J.S.A. 2C:14-7, may be applied to
exclude evidence of past sexual conduct that is offered to show
that the victim had the mental capacity to consent to sexual
contact. If such evidence is excluded, we also address whether
that exclusion violates the defendant's constitutional right to
confront witnesses.
I
Defendant, Azem Cuni, was indicted and tried for first
degree aggravated sexual assault, contrary to
N.J.S.A. 2C:14-2a(3); second degree sexual assault, contrary to
N.J.S.A. 2C:14-2c(1) and (2); third degree burglary, contrary to
N.J.S.A. 2C:18-2; and fourth degree criminal trespass, contrary to
N.J.S.A.
2C:18-3. At the conclusion of trial, the jury returned guilty
verdicts on all counts. The court thereafter merged the burglary
charge and the sexual assault charge under
N.J.S.A. 2C:14-2c(1)
into the aggravated sexual assault charge, sentenced defendant to
an aggregate term of twelve years in prison, and imposed
appropriate penalties.
Defendant appealed his convictions. The Appellate Division
reversed the convictions for aggravated sexual assault and
burglary.
303 N.J. Super. 584 (1997). The court found that the
trial court erred by not instructing the jury that, in order to
convict defendant of burglary and aggravated sexual assault based
on that burglary, defendant had to have entered the victim's
house with the intention to engage in sexual penetration without
her consent.
Id. at 598; 604. Because the failure to so
instruct was "capable of producing an unjust result," the court
reversed both the aggravated sexual assault and the burglary
convictions.
Id. at 603-04. The court affirmed the other
convictions, finding no reversible error in defendant's remaining
contentions.
Id. at 610-11. Judge Pressler dissented on the
ground that defendant's two sexual assault convictions should
also be reversed because evidence of the victim's two past sexual
experiences were excluded under the Rape Shield Law, violating
defendant's right to confrontation.
Id. at 611-13.
Defendant appealed the Appellate Division's decision as of
right based on the dissent, pursuant to
R. 2:2-1(a)(2).
Defendant also petitioned for certification on two additional
issues. The Court denied that petition.
152 N.J. 12 (1997).
II
In 1992, the victim, T.O., was thirty years old and lived
with her younger sister and mother in a house in Jefferson
Township. T.O. had been tested as being in the borderline range
for being mentally deficient.See footnote 1
One afternoon in late October 1992, T.O. ordered a sandwich
from a local pizzeria for home delivery. Defendant soon
thereafter arrived at T.O.'s door with her order. Because T.O.
did not possess a key to the locked front door, T.O. opened a
window in order to retrieve her sandwich. Defendant bent down
and kissed T.O. through the window, using his tongue. T.O.
testified that she "didn't want it." Defendant told T.O. that
people at the pizzeria were talking about her and saying that she
was a beautiful person. T.O. then paid for her sandwich and
defendant departed.
Two or three weeks later, T.O. again ordered a sandwich from
the pizzeria. T.O., who was home alone, watched television in
her bedroom while waiting for the delivery. After twenty-five
minutes had passed without a knock, T.O. moved to the livingroom
to wait for the delivery. There she encountered defendant
standing in the room. T.O. had not given defendant permission to
enter her home and felt "invaded" by his presence.
T.O. testified that defendant then "start[ed] getting funny
with me. He start[ed] kissing me on my lips and then he
start[ed] going down in my pants . . . ." Although T.O. did not
want to kiss defendant, she did not say anything at the time.
T.O. then asked defendant to leave and went into her room in
order to get money to pay for the sandwich. Defendant did not
respond, but instead followed T.O. into her room. T.O. described
what transpired: "We go over to my bed. He sits me down on the
corner and then he proceeds to pull my pants -- my undershorts
and my slacks down to my ankles and he does his thing." By "does
his thing," T.O. meant that defendant had sexual intercourse with
her against her will. Before leaving, defendant instructed T.O.
not to tell anyone about the encounter.
T.O. testified that defendant hurt her with the force of
sexual penetration. As T.O. described it, however, the pain did
not "bother me because I wasn't really paying close attention,
you know. I was thinking of some other stuff . . . I was unhappy
when he did it, I was scared, but it just didn't cross my mind of
what he was doing." T.O. pondered "ways to get out of it," such
as "hid[ing] down in [her] sister's room and call[ing] the cops
from there . . . [or hiding] upstairs in the attic with [her]
father's airgun rifle just to scare [defendant] away."
About two weeks later, on November 28, defendant returned to
T.O.'s house and entered without knocking. T.O. was alone when
defendant appeared in her bedroom doorway. She spoke first and
said, "You." Defendant asked T.O. if she liked him, and she told
him she would have to think about it and for him to come back
later. As T.O. described it, "Then it clicks. I knew exactly
what he did. . . . I got the telephone, called my neighbor. . . .
I asked her if I could come over. She said why, and I told her
that somebody sexually molested me." The neighbor told T.O. to
call her mother. T.O. followed those instructions and informed
her mother that "somebody was taking advantage of me."
On November 30, 1992, Detective John Kessler of the
Jefferson Township Police Department interviewed T.O. about the
incident. T.O. provided Detective Kessler with a description of
defendant and his place of employment. Detective Kessler went to
the pizzeria where he found defendant. Defendant agreed to be
interviewed by Kessler at the police station, where he
subsequently waived his constitutional rights and admitted to
having sex with T.O. He stated that he "did her" and that he
"guessed" that she wanted to have sex with him as well. When
asked whether he told T.O. not to tell anyone about the incident,
defendant did not respond. Defendant said that he was only
familiar with T.O. from delivering food to her home "a couple of
times." Defendant told Detective Kessler that the first time he
kissed T.O., he did not know whether she wanted him to.
Detective Kessler never asked defendant whether he believed that
T.O. was mentally defective.See footnote 2
At trial, defendant claimed that both encounters with T.O.
were consensual, that she was not mentally defective, and that,
if she was mentally defective, he did not know nor should he have
known. Defendant testified that when he first kissed T.O.
through the window, he told her that she was good looking and she
responded "yes, I am, you know." He also claimed that he asked
for and received permission to kiss her. Defendant further
testified that when T.O. placed her second order, she requested
that he deliver it. He claimed that he knocked on the door, and
only opened it after he saw her through the window walking toward
the door. Once encountering T.O. on entering the room, he again
asked her permission to kiss her; the two then kissed and held
hands. Defendant claimed that he then asked T.O. if she wanted
"to do it" and she led him into her bedroom where they had sex.
Afterwards, defendant said T.O. appeared "happy, not scared."
Defendant claimed that he had no idea that T.O. was mentally
defective. Defendant also testified about the final encounter,
asserting that when T.O. told him to leave and come back later,
he agreed to do so.
The State produced Dr. Anthony D'Urso, who testified as an
expert in the field of clinical psychology. After meeting with
T.O. twice, reviewing her childhood evaluations, and conducting
several different tests, Dr. D'Urso concluded that T.O.
lacked any functional ability to understand
the sexual assault and her ability to stop
the sexual assault [and that] although she is
knowledgeable about sexual activity and can
talk about it in the concrete, apart from a
stressing or assaultive experience that her
functional ability to say no, to fend against
such an action and not comply with the
requests of the assaultive person puts her in
the mentally deficient range.
Dr. D'Urso testified further about T.O.'s knowledge of sex and
understanding of consent:
Q: And again can you tell us what you mean
by she understands concretely what these
things are?
A: She knows that intercourse is where a
penis is inserted in a vagina. She knows
that prophylactics are used for safe sex.
She knows that people don't have the right to
invade your body. Those are the kind of
things that in the concrete she would know.
In other words, she can say those rotely to
you. She can understand that people have a
right to the integrity of their bodies and
she can talk to you about the fact that no
one has a right to assault anyone else.
Q: So she knows that she has a right to
refuse?
A: She intellectually knows that she has a
right to refuse, yes.
The expert was then asked whether T.O. had the "ability to
resist, to exercise that right to refuse." He answered:
I do not functionally believe she has the
right to refuse. . . . As a matter of
circumstance, when someone is forcing
themselves on her, when someone is telling
her words and saying things, when people are
manipulating her body and touching her,
putting her in positions on beds, it is my
clinical judgment that she doesn't have the
functional ability to say no . . . .
Dr. Ronald Silikovitz, a psychologist for defendant,
testified that he questioned T.O. about sex in interviews and
concluded that she knew the nature of sexual acts and "[s]he knew
she had the right to say no." He testified further:
She is aware of the mechanics, the anatomy,
the physiology and the implications of sexual
acts including kissing all the way up through
intercourse. She's aware of all that. She
can define it. She can verbalize it. She's
aware of consequences if you do this this
will happen. She's aware about condoms and
knows what happens when you do and don't use
condoms and she discussed that with me. She
certainly I believe knew she had the right to
say no and I think she was capable of saying
no. I also find a very explicit sexual
fantasy in the projective testing.
During the trial, the chief issue was the admission of
evidence of T.O.'s past sexual experiences. In her interviews
with both experts, T.O. related two sexual incidents occurring
eleven years earlier.See footnote 3
On cross-examination of Dr. D'Urso, defense counsel asked
whether he had questioned T.O. about her prior sexual conduct.
After Dr. D'Urso answered that he had, the State objected,
arguing that the Rape Shield Law barred the testimony. Dr.
D'Urso further explained, in response to the court's inquiry,
that he asked T.O. about her past "to understand what she knew
about sexuality and what she knew about intercourse and how she
experienced those behaviors before." That history was "just one
piece" of the information he used to come to his conclusions
about T.O.'s capacity to consent. He also indicated that T.O.'s
eleven year period of abstinence since the encounters was
significant because it showed that her experience was "typical []
of people who were cognitively limited on how sexual experiences
typically occur."
The trial court ruled that the testimony was not admissible.
The court determined that defense counsel had failed to comply
with the procedural requirements of the Rape Shield Law because
he did not before trial apply to the court for an order to admit
T.O.'s sexual history into evidence. On the merits of the claim,
the court ruled that the evidence should be excluded for the
following reasons: the passage of time made the evidence's
relevance suspect; the incidents in the past are not similar
enough to the present incident because the past incidents
involved friends and the present incident involves a stranger;
and, admitting the evidence would distract the jury by "delving
into the circumstances of those cases and trying to assess what
[T.O.'s] mental capacity may have been at the time."
III
The defendant was charged and convicted of sexual assault
under
N.J.S.A. 2C:14-2c(1) and (2):
An actor is guilty of sexual assault if he
commits an act of sexual penetration with
another person under any one of the following
circumstances:
(1) The actor uses physical force or
coercion, but the victim does not sustain
severe personal injury;
(2) The victim is one whom the actor knew or
should have known was physically helpless,
mentally defective or mentally
incapacitated[.]
[Ibid.]
Under N.J.S.A. 2C:14-2c(2), a person is considered "mentally
defective" if he or she has a mental defect that renders him or
her "unable to comprehend the distinctively sexual nature of the
conduct, or incapable of understanding or exercising the right to
refuse to engage in such conduct with another." State v. Olivio,
123 N.J. 550, 564 (1991). Under that standard, because the State
and its expert acknowledged at trial that T.O. understood "the
distinctively sexual nature of the conduct" and her "right to
refuse to engage" in that conduct, the question before the jury
was whether T.O. was "incapable of . . . exercising" that right,
ibid., that is, whether the victim had the capacity to consent.
The Legislature enacted the first Rape Shield Law, N.J.S.A.
2A:84A-32, in 1976. The Legislature enacted the current Rape
Shield Law, N.J.S.A. 2C:14-7, as part of the revision of the New
Jersey Code of Criminal Justice in 1979. After a technical
amendment in 1988, the law read as follows:
a. In prosecutions for aggravated sexual
assault, sexual assault, aggravated criminal
sexual contact, criminal sexual contact, or
endangering the welfare of a child in
violation of N.J.S. 2C:24-4, evidence of the
victim's previous sexual conduct shall not be
admitted nor reference made to it in the
presence of the jury except as provided in
this section. When the defendant seeks to
admit such evidence for any purpose, he must
apply for an order of the court before the
trial or preliminary hearing, except that the
court may allow the motion to be made during
trial if the court determines that the
evidence is newly discovered and could not
have been obtained earlier through the
exercise of due diligence. After the
application is made, the court shall conduct
a hearing in camera to determine the
admissibility of the evidence. If the court
finds that evidence offered by the defendant
regarding the sexual conduct of the victim is
relevant and that the probative value of the
evidence offered is not outweighed by its
collateral nature or by the probability that
its admission will create undue prejudice,
confusion of the issues, or unwarranted
invasion of the privacy of the victim, the
court shall enter an order setting forth with
specificity what evidence may be introduced
and the nature of the questions which shall
be permitted, and the reasons why the court
finds that such evidence satisfies the
standards contained in this section. The
defendant may then offer evidence under the
order of the court.
b. In the absence of clear and convincing
proof to the contrary, evidence of the
victim's sexual conduct occurring more than 1
year before the date of the offense charged
is presumed to be inadmissible under this
section.
c. Evidence of previous sexual conduct shall
not be considered relevant unless it is
material to negating the element of force or
coercion or to proving that the source of
semen, pregnancy or disease is a person other
than the defendant.See footnote 4
[N.J.S.A. 2C:14-7 (1988).]
This Court has stated that the purposes of the statute are "to
protect rape victims from excessive cross-examination, thereby
encouraging them to report the abuse . . . [and to] preserve the
integrity of trials . . . [b]y ensuring that juries will not base
their verdicts on prejudice against the victim . . . ." State v.
Budis,
125 N.J. 519, 529 (1991) (citation omitted).
A.
The trial court ruled that the evidence of T.O.'s past
sexual experiences was not admissible under the Rape Shield Law
because defendant failed to comply with the procedural
requirements of the statute. The statute provides that if the
defendant seeks to admit the evidence for "any purpose," the
defendant must apply for a court order "
before the trial or
preliminary hearing."
N.J.S.A. 2C:14-7a (emphasis added). The
only exception to that requirement provided in the statute is
when there is "newly discovered [evidence that] could not have
been obtained earlier through the exercise of due diligence."
Ibid.
Barring the admission of evidence on a procedural ground
raises constitutional issues implicating the right to confront
witnesses. In
Michigan v. Lucas,
500 U.S. 145,
111 S. Ct. 1743,
114 L. Ed.2d 205 (1991), the United States Supreme Court dealt
with the issue of a procedural preclusion under Michigan's rape
shield law and the defendant's constitutional right to
confrontation.
Id. at 146, 111
S. Ct. at 1744, 114
L. Ed.
2d at
210. The Supreme Court held that the statute is not
per se
unconstitutional because there were "legitimate state interests
support[ing] the notice-and-hearing requirement."
Id. at 149,
111
S. Ct. at 1746, 114
L. Ed.
2d at 212. Those interests
included guarding against surprise, harassment and invasion of
the victim's privacy; guarding against surprise to the
prosecution; and enhancing the fairness of the adversary system.
Id. at 150-51, 111
S. Ct. at 1747, 114
L. Ed.
2d at 212-13.
Failure to comply with the procedural requirement could, without
violating the United States Constitution, justify preclusion.
Id. at 153, 111
S. Ct. at 1748, 114
L. Ed.
2d at 214.
We have similarly recognized that the right to confront
witnesses is one that must be factored into the application of
the Rape Shield Law and, although that right is one of the
"'minimum essentials of a fair trial,'"
Budis,
supra, 125
N.J. at
531 (quoting
Chambers v. Mississippi,
410 U.S. 284, 294-95,
93 S.
Ct. 1038, 1045,
35 L. Ed.2d 297, 308 (1973)), it "is not
absolute, and may, in appropriate circumstances, bow to competing
interests."
Ibid. See State v. Scherzer,
301 N.J. Super. 363,
417 (App. Div.) (holding in light of
Lucas,
supra, that "[u]nder
the Rape Shield Law's procedural requirement, as with any
discovery rule violation, the trial judge enjoys broad discretion
to determine what sanctions, including preclusion of evidence,
should be imposed."),
certif. denied,
151 N.J. 466 (1997).
Thus, under the Rape Shield Law itself, preclusion is the
remedy for procedural non-compliance. Under
Lucas, however, the
constitution confers discretion in the application of that remedy
if the court finds that under the facts of the specific case
preclusion violates the defendant's right to confront witnesses.
Lucas,
supra, 500
U.S. at 153, 111
S. Ct. at 1748, 114
L. Ed.
2d
at 214-15.
Scherzer,
supra, listed factors relevant to that
determination:
(1) was defendants' discovery violation due
to willful misconduct (e.g., was it a
tactical decision); (2) would a mid-trial
proffer have caused unfair surprise to the
State; (3) were there alternatives to
exclusion (e.g., recess, continuance,
prosecutorial comment on discovery violation)
and (4) the impact of witness preclusion on
the outcome of the trial.
[301 N.J. Super. at 418 (citing
Fendler v. Goldsmith,
728 F.2d 1181, 1187-88 (9th Cir. 1983);
State v. Caffee,
220 N.J. Super. 34, 37 (App. Div. 1987)).]
Based on those factors, the trial court's determination that
defendant's procedural non-compliance required exclusion of the
evidence was justified. The prosecutor specifically claimed that
under the statute the matter should have been brought before the
court prior to trial, and that attempting to introduce the
evidence in the middle of the trial prejudiced the State.
Defense counsel contended that he did not know before trial that
he would introduce the evidence, and therefore, he did not bring
it to the court's attention. Because the defense had Dr.
D'Urso's report, as well as that of its own expert, before trial,
however, it clearly had the basis for making an informed decision
on whether at trial it would seek to rely on evidence of T.O.'s
sexual history. Further, the introduction of such evidence mid-way through the trial without any prior application or warning,
in effect, blindsided the State and, in the face of that
surprise, left it with no practical alternative to exclusion.
Finally, exclusion was the appropriate remedy because, with an
already impaneled jury, delay would have been inefficient and
distracting.
In sum, the State's "legitimate [] interests in protecting
against surprise, harassment, and undue delay[,]" see Lucas,
supra, 500 U.S. at 153, 111 S. Ct. at 1748, 114 L. Ed.
2d at 214,
and the absence of any reasonable or legitimate excuse or
alternative remedies, Scherzer, supra, 301 N.J. Super. at 418,
support the procedural exclusion of the evidence in this case.
B.
Procedural preclusion invites consideration of the impact of
that remedy on adversarial fairness,
Lucas,
supra, 500
U.S. at
151, 111
S. Ct at 1748, 114
L. Ed.
2d at 214, and on the outcome
of the trial itself.
Scherzer,
supra, 301
N.J. at 418. That
consideration implicates the merits of the decision to preclude
evidence under the Rape Shield Law. It requires an inquiry into
the substantive basis for the preclusion of the evidence of
T.O.'s sexual history, and the right of defendant to confront
adverse witnesses.
Whenever the confrontation rights of a defendant are
considered in connection with the State's interest in excluding
evidence under the Rape Shield Law, courts must engage in a two-step analysis: first, "whether the evidence was relevant to the
defense[,]" and second, "[i]f the evidence is relevant . . .
whether its probative value outweighs its prejudicial effect."
Budis,
supra, 125
N.J. at 532.
The Appellate Division in this case applied the proper
standard, stating that "if the evidence is relevant and its
probative value is not outweighed by its prejudicial effect, then
the evidence may not constitutionally be excluded." 303
N.J.
Super. at 607. The court determined that the evidence was only
slightly relevant and without measurable probative worth because
the two incidents occurred so far in the past.
Id. at 608-09.
Furthermore, the court recognized the prejudice inherent in such
evidence, explaining that inquiry into those incidents would tend
to "harass the victim" and also raise the "impermissible
inference" that "an 'unchaste woman is more likely to consent to
a sexual assault.'"
Id. at 609 (quoting
Budis,
supra, 125
N.J.
at 540). Finally, the court observed that it had to give
"considerable weight" to the trial court's determination of the
competing interests.
Ibid. The dissent, in disagreeing with the
majority's application of the Rape Shield Law to this case,
reasoned that "defendant's constitutional right to confrontation
takes precedence, and if the victim's prior sexual conduct is
relevant and material to the defense, that evidence may not be
barred by reason of the constraints imposed by the Act."
Id. at
611. "The victim's prior experiences, the contexts in which they
occurred, and her own later analysis of them and feelings about
them[,]" according to the dissent below, "were . . . clearly
material to the question of whether she had the capacity to have
said 'no.'"
Id. at 613. Those conclusions are adopted by
Justice Stein's dissent.
Post at __ (slip op. at 2).
The first question is, "apart from the Rape Shield Statute,
whether the evidence was relevant to the defense."
Budis,
supra,
125
N.J. at 532. Under
N.J.R.E. 401, evidence is relevant if it
has a "tendency in reason to prove or disprove any fact of
consequence to the determination of the action." In answering
that question, the focus in this case is whether the evidence is
relevant to the victim's capacity to consent or, more precisely,
her capacity to withhold or refuse consent to unwanted sexual
contact.
The capacity to consent is gauged by the mental ability of
the victim at the time of the sexual conduct: "[A] person is
mentally defective under
N.J.S.A. 2C:14-2c(2) if,
at the time of
the sexual activity, the mental defect rendered him or her unable
to comprehend the distinctively sexual nature of the conduct, or
incapable of understanding or exercising the right to refuse to
engage in such conduct with another."
Olivio,
supra, 123
N.J. at
564 (emphasis added). Here, T.O.'s past experiences occurred
eleven years earlier at a time when T.O. was still in school.
Any evidential connection between T.O.'s prior sexual experiences
and the current sexual encounter with defendant is remote and
attenuated.
Shaw v. United States,
892 F.Supp. 1265, 1275-78
(S.D. 1995) (rejecting evidence that victim engaged in sex acts
five or six years before charged crime as too remote and lacking
probative worth),
aff'd,
92 F.3d 1189 (8th Cir. 1996).
T.O.'s prior sexual experiences cannot be viewed as relevant to
her capacity to consent or to withhold or refuse consent. Past
consensual sexual experiences -- as opposed to previous incidents
where a victim effectively
refused consent -- are not
sufficiently probative to demonstrate the capacity to consent.
Compare State v. Anderson,
902 P.2d 1206, 1208 (Or. Ct. App.),
review denied,
907 P.2d 249 (Or. 1995) (upholding under rape-shield statute exclusion of statements that defendant heard
regarding victim's sexual reputation because they were not
probative of victim's capacity to consent; noting that "to avoid
culpability, defendant had to show that he `did not know of the
facts or conditions responsible for the victim's incapacity to
consent.' Here, those 'facts or conditions' that are responsible
for the victim's incapacity to consent are her mental
retardation.")
with State v. Frost,
686 A.2d 1172, 1178 (N.H.
1996) (noting that proffered testimony by prior boyfriend that he
and victim
refrained from certain sexual activities because
victim
refused to consent was deemed highly probative of issue of
her capacity to decide whether or not to consent).
In neither of the two prior experiences does it appear that
T.O. was unwilling or reluctant to engage in the sexual acts.
Nor does it appear that T.O. exercised or sought to exercise her
right to say no and refuse to consent. In the first incident
involving a friend, "she `let [her friend]' have intercourse with
her." In the second, T.O. and her acquaintance voluntarily
"hopped into bed" and T.O. "let him have sex with her." There is
no indication that T.O. was not a willing participant in either
sexual encounter, whereas in respect of the offense charged here
there is evidence that the sexual assault was unwanted and
uninvited by her. These prior incidents, therefore, do not tend
to prove that T.O. had the ability to exercise consent. The
critical issue in this case is the victim's capacity to consent
in the sense that if she was unwilling to engage in sexual acts,
she had the mental and emotional ability to refuse. The inquiry,
therefore, centers on T.O.'s mental condition and state of mind
that would reflect that incapacity when the sexual conduct
occurred. Prior acts of intercourse that appear consensual and
do not implicate any incapacity to refuse sexual advances cannot
demonstrate that the victim had the actual ability to consent to
the charged sexual assault -- "because the prior acts may have
occurred due to the same lack of capacity."
Frost,
supra, 686
A.
2d at 1178.
Defendant also claimed as part of his defense that even if
T.O. was incapable of exercising her right to consent, he did not
know, nor did he have any reason to know, that she was not so
able. The issue then is whether evidence of T.O.'s past sexual
experience sheds any light on defendant's knowledge or awareness
of her mental condition and capacity to consent.
In order to establish effective consent by the putative
victim of a sexual assault, a defendant must demonstrate the
presence of "affirmative and freely-given permission. . . ."
In
the Interest of M.T.S.,
129 N.J. 422, 448 (1992). The use of
evidence of a victim's prior sexual encounters to establish
consent based on such affirmative manifestations is prohibited.
Budis,
supra, 125
N.J. at 540 (evidence of the victim's prior
sexual abuse may not be used to support an inference that she
'consented' to the acts with defendant.");
accord State v. Green,
260 S.E.2d 257, 261 (W.Va. 1979) ("rape victim's previous sexual
conduct with other persons has very little probative value about
her consent to intercourse with a particular person at a
particular time."). Prior sexual history may not be used as
proof of the absence or withholding of consent.
Frost, supra,
686
A.
2d at 1178 (holding that fact that victim engaged in prior
sexual activity is not probative of her legal capacity to
consent). Additionally, even if prior sexual acts implicated the
refusal to consent by the victim, that evidence would not be
material or probative if too remote from the charged offense.
Ibid. (noting that prior sexual acts involving refusal would be
probative of capacity to refuse only on assumption of "reasonable
proximity in time to the charged crimes.").
The dissent below believed that the "prior experiences and
their effect on [T.O.] were relevant [] to the issue of
defendant's perception of a mental limitation that might have
counterindicated her capacity to refuse." 303
N.J. Super. at
613. Defendant cannot establish the reasonableness of his belief
that the victim consented and was capable of consenting by
attempting to show that other persons in the distant past may
have believed that the victim had consented to their sexual
advances. Ancient and ambiguous sexual acts of the victim, which
cannot as such prove current consent, would have virtually no
bearing on whether or not the defendant would have reason to know
of the victim's mental capacity to engage in sex. In fact,
defendant did not know T.O. and had no knowledge of her prior
experiences. Even if, unlike the situation here, a defendant is
aware of the previous sexual behavior of the victim with others,
such evidence is irrelevant because the defendant's generalized
belief that the victim could consent to sexual relations is
immaterial.
Anderson,
supra, 902
P.
2d at 1208. "[T]he critical
inquiry [is] whether defendant was aware of the victim's mental
retardation. . . . [T]he victim's alleged reputation for
promiscuous sexual activity is immaterial to that inquiry."
Ibid.
In short, the trial court correctly concluded that two acts
eleven years prior to the incident in question were not relevant
to whether in 1992 defendant had or should have had knowledge
about T.O.'s mental deficiency.
Even assuming the relevance of T.O.'s prior sexual
experience to either her capacity to consent or defendant's
knowledge thereof, the probative value of that evidence next must
be balanced with its prejudicial impact.
Budis,
supra, 125
N.J.
at 532. Against any demonstration of probative value must be
weighed the prejudice that inevitably resounds from the
introduction of such evidence. "The Legislature, in enacting the
rape-shield law, has said that in admitting evidence of the
victim's prior sexual activity, there is prejudice
per se."
Id.
at 548 (O'Hern, J., dissenting). In addition, in balancing the
probative value of the evidence, the confrontation clause does
not compel the admission of evidence that will distract the jury,
obscure the issues, and create undue confusion.
Id. at 538.
Many courts that have considered challenges to the exclusion
of evidence under rape shield statutes on confrontation grounds
support the conclusion that, in a case such as this, the
probative value of the evidence of prior sexual experience is
slight and the exclusion of that evidence is appropriate.
See Ex
parte Dennis v. State, No. 1971061, 1
999 WL 77521, at *5 (Ala.
Feb. 19, 1999) (rejecting evidence that child victim may have had
prior sexual encounter with person other than defendant because
it would not have established that prior sexual experience was
responsible for recurrent penetration);
State v. Kennedy, No. 95-0912, 1
996 WL 255041, at *1 (Wis. 1996) (
per curiam) (rejecting
defendant's appeal for new trial based on newly-discovered
evidence of prior sexual abuse in part because minimal probative
value of evidence was outweighed by its prejudicial effect);
Shaw,
supra, 892
F.Supp. at 1275-78 (rejecting defendant's post-conviction challenge to exclusion of evidence of victim's past
sexual behavior to negate inference that her sexual knowledge was
based on recent experiences because evidence, although relevant,
would unduly prejudice jury);
United States v. Acevedo, No. 91-C-1352, 1
992 WL 71797, at *17 (N.D. Ill. April 1, 1992) (denying
defendant's petition for habeas corpus because trial court acted
properly in applying rape shield statute to preclude evidence
concerning victim's prior and subsequent sexual activity with
others because its probative value was slight),
aff'd,
996 F.2d 145 (9th Cir.),
cert. denied,
510 U.S. 916,
114 S. Ct. 307,
126 L. Ed. 255 (1993). Even accounting for the fact that the
prejudice to the victim is reduced by introducing the testimony
through an expert, and not through the victim herself, thereby
lessening her personal embarrassment,
cf. Tague v. Richards,
3 F.3d 1133, 1138 (7th Cir. 1993) (observing in case in which
evidence of prior uncharged sexual molestation was admissible
because critical issue was source of hymenal damage to eleven-year old girl, prejudice from use of such evidence could be
reduced by avoiding direct testimony by victim), the prejudice
here is not outweighed by the scant probative value of the
evidence.
The dissent suggests here that because there are only two
prior incidents in T.O.'s history, they do not demonstrate
"promiscuity" and, therefore, she ought not to be embarrassed if
they are introduced into evidence.
Post at __ (slip op. at 2).
That observation, perhaps unintendedly insensitive, does not
account for the victim's own feelings, which indicate that she
felt discomfort and personal guilt over her previous sexual
experiences.
See supra at __ n.3 (slip op. at 11 n.3). The
unjust aspersion of promiscuity is not the only reason that
renders personal sexual history a matter of privacy for the
victim.
The dissent makes a fair observation in pointing out that
ordinarily an expert should be subject to cross-examination
concerning the basis for his or her opinion.
Post at
(slip
op. at 11).
See N.J.R.E. 705. Like most rules of evidence,
however,
N.J.R.E. 705 has limitations.
See,
e.g.,
Scherzer,
supra, 301
N.J. Super. at 415 (noting that scope of cross-examination in respect of facts underlying expert's report that
victim was mentally defective was "within the trial court's
discretion" and should not be interfered with "unless clear error
and prejudice are shown"). In this case, where the underlying
evidence has little probative value; where that evidence was
given only marginal weight by the expert; where the prejudice to
the victim from that evidence is clear and inescapable; and
further, where the defendant has had a full opportunity otherwise
to present his defenses relating to his unawareness of the
victim's mental capacity, it would be an abuse of discretion to
permit the cross-examination to delve into T.O.'s sparse, vague
and remote sexual experiences.
To allow the exposure and exploitation of this victim's past
sexual history merely because the door of cross-examination was
opened slightly would unfairly deny her the protections of the
Rape Shield Law. That statute, as earlier noted, was designed to
protect the privacy and dignity of the victims of sexual crimes.
Ante at
(slip op. at 16). Before the law, rape trials
sometimes denigrated to embarrassing invasions of the victim's
privacy because of the frequent 'character assassination' of
the victim[.]
Budis,
supra, 125
N.J. at 529 (citation omitted).
The protections of the Rape Shield Law should be heightened in
respect of victims who are particularly vulnerable to these kinds
of character attacks.
Cf. State v. Besk,
640 A.2d 775, 776 (N.H.
1994)(rejecting view that the protection now afforded to rape
victims against exposure of their sexual histories [should] apply
only to adults and adolescents, and not to the youngest, most
vulnerable victims of all -- prepubescent children because
[s]uch a construction of the rape shield law would run contrary
to the legislature's intent 'to protect the victims of rape from
. . . procedures that only serve to exacerbate the trauma of the
rape itself.'"). Such victims include not only persons who are
young or immature, or emotionally disturbed, or socially
disadvantaged, but also victims who are mentally challenged.
That victim should not have to forfeit the protections of the
Rape Shield Law because an expert must explain her mental
condition and her defenselessness, particularly when her sexual
history has comparatively inconsequential probative value.
In addition, the admission of the proffered evidence would
have engendered extensive jury confusion. Evidence of remote
sexual experiences that occurred under circumstances that are
vaguely presented and not comparable to those surrounding the
currently charged offense have an extreme potential for
confusion.
E.g. Dennis,
supra, 1
999 WL 77521, at *5 (upholding
trial court's determination that admission of evidence of
victim's sexual history would have tendency to confuse jury);
Kennedy,
supra, 1
996 WL 255041 at *1 (stating that "[b]ecause of
the minimum probative value of [] evidence [of prior sexual
experiences], its admission would serve only to confuse the jury
rather than clarify the issues");
Shaw,
supra, 892
F. Supp. at
1274 (holding that evidence of victim's past sexual experiences
would confuse issues to be tried);
Acevedo,
supra, 1
992 WL 71797
at 17 (precluding evidence of victim's prior and subsequent
sexual activity with others because "its potential to confuse and
distract the jury was substantial").
Here, the circumstances of the previous encounters were very
different: they involved acquaintances of T.O., as opposed to
pure strangers; they occurred when T.O. was much younger and
still in school; and the motivation and intent of the
participants were influenced by their previous relationships.
The collateral inquiry into those incidents in a convoluted
attempt to extrapolate the victim's current capacity to consent
would likely have been distorted, discursive, incomplete and
speculative. Evidence of those incidents, therefore, would have
easily mislead and distracted the jury and could not reliably
shed meaningful light on the issue of whether the victim, wishing
to withhold consent to defendant's sexual advances, had the
capacity to do so.
IV
In conclusion, only in situations where the relevance and
probative worth of prior sexual experience are clear and
substantial should the Rape Shield Law bend to the confrontation
rights of the defendant. That is not the case here. Further,
any probative value in admitting evidence of T.O.'s past sexual
experience is clearly outweighed by its prejudicial effect and
capacity to confuse.
For the reasons stated, the judgment of the Appellate
Division is affirmed.
JUSTICES POLLOCK, O'HERN, and GARIBALDI join in JUSTICE
HANDLER's opinion. JUSTICE STEIN has filed a separate
dissenting opinion, in which CHIEF JUSTICE PORITZ and JUSTICE
COLEMAN join.
SUPREME COURT OF NEW JERSEY
A-
141 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AZEM CUNI,
Defendant-Appellant.
STEIN, J., dissenting.
New Jersey's Rape Shield Law, N.J.S.A. 2C:14-7, was enacted
primarily to protect sexual assault victims from cross-examination concerning prior sexual conduct that was intended to
depict the victim as lacking in moral character and therefore
likely to have consented to sexual activity with the accused.
State v. Budis,
125 N.J. 519, 528-29 (1991). In this appeal,
defendant, an Albanian refugee with minimal skills in the English
language, was convicted of sexual assault despite his contention
that his sexual contact with the victim was consensual.
Defendant's sexual assault convictions were substantially
predicated on the testimony of the State's expert psychologist
who concluded that the victim, age thirty, lacked capacity to
consent. In reaching that conclusion, the State's expert relied
in part on the victim's accounts of her only two prior sexual
encounters that had occurred approximately ten years earlier.
Despite their obvious relevance, the trial court barred defense
counsel from cross-examining the expert about his reliance on
those two sexual encounters, mistakenly assuming that the vital
interests protected by the Rape Shield Law would be compromised.
In my view, the trial court's application of the Rape Shield Law
was erroneous because defense counsel's proposed cross-examination of the State's expert was not intended to suggest
that the victim was promiscuous or to impugn her morality. To
the contrary, her minimal sexual experience was undisputed. The
cross-examination was intended only to challenge the expert's
conclusion that the victim lacked the mental capacity to consent,
the pivotal issue in the case. Nevertheless, the Court now
sustains defendant's convictions for sexual assault.
I would reverse defendant's sexual assault convictions
substantially for the reasons set forth in the dissent below.
State v. Cuni,
303 N.J. 584, 611-13 (1997) (Pressler, J.,
dissenting). These supplemental observations address in greater
detail my view of Court's severe application of the Rape Shield
Law to sustain the lower court's ruling, a ruling that prevented
defense counsel from adequately cross-examining the State's
psychiatrist and thereby deprived defendant of his constitutional
right of confrontation, U.S. Const. amend. VI; N.J. Const. art.
1, para. 10, which encompasses the right to cross-examine the
State's witnesses. Budis, supra, 125 N.J. at 530-32.
I
Defendant, an Albanian refugee unskilled in English,
described in the Adult Diagnostic and Treatment Center's report
as "mentally deficient," and with an English vocabulary score at
less than the first percentile, defended the sexual assault
charges against him on the basis that he believed the victim,
T.O., willingly participated in an act of sexual intercourse.
The State's psychologist, Dr. Anthony D'Urso, testified on direct
examination that the thirty-year-old victim's mental retardation
rendered her incapable of exercising the right to refuse sexual
relations, notwithstanding that he observed her to be
knowledgeable about sexual activity.
As the Appellate Division noted, however, Dr. D'Urso
admitted that T.O.'s ability to express herself exceeded her
mental condition. He said that based on the way she communicated
with other people, "she comes across as having a higher level of
ability than her test score would support." He conceded that her
"language skills belie the fact that she's mentally retarded."
303
N.J. Super. at 605. Defendant's expert agreed with that
assessment:
Q. What did you find her verbal skills
to be?
A. [T.O.] was very fluent, very
spontaneous[,] spoke[] in complete
sentences. She was engaging -- she
had a sense of humor. She
responded fully and openly to
everything I asked her. She
appeared very relaxed. She came
across as more verbal than the
scores would have led me to
believe. If I only had her scores,
in other words, and didn't see her
I would have expected less verbal
[]ability than I actually saw. She
conversed very fluently.
The confrontation issue concerned the victim's only two
prior sexual experiences, both occurring about ten years prior to
the incident at issue, which she had described to Dr. D'Urso and
about which he testified in camera at trial. Ante at ___-___
(slip op. at 8-12).
Defense counsel attempted to cross-examine Dr. D'Urso
concerning those incidents. Unquestionably, the purpose and
intended scope of that cross-examination did not infringe on the
important interests protected by the Rape Shield Law: the
victim's limited sexual activity (two prior experiences in thirty
years) obviated any attempt to establish consent based on
promiscuity, nor was the cross-examination of Dr. D'Urso
calculated to embarrass the victim or invade her privacy. See
Budis, supra, 125 N.J. at 528-30. Its sole purpose was to permit
defense counsel to challenge Dr. D'Urso's testimony -
indispensable to the State's case -- that the victim lacked the
capacity to consent. Notwithstanding the Court's conclusion that
the evidence lacked relevancy or could confuse the jury, ante at
___-___ (slip op. at 22-26, 28-29), the victim's description to
the State's expert of the circumstances surrounding her only two
prior sexual encounters provided defense counsel with the most
realistic opportunity during the entire trial to challenge the
State's expert's conclusion that the victim could not consent to
sexual activity.
The Court attempts to justify preclusion of the cross-examination of Dr. D'Urso partially on the basis of defense
counsel's failure to apply "before the trial or preliminary
hearing" to the trial court for an order to permit admission of
evidence of the victim's prior sexual conduct. N.J.S.A. 2C:14-7(a). The Court concludes that the remedy for noncompliance with
that statutory requirement is preclusion, ante at ___ (slip op.
at 18-19), noting that the only exception to the statute's
procedural mandate is for "newly discovered [evidence that] could
not have been obtained earlier through the exercise of due
diligence." Ante at ___ (slip op. at 16-17) (alteration in
original). Nevertheless, citing Michigan v. Lucas,
500 U.S. 145,
153,
111 S. Ct. 1743, 1748,
114 L. Ed.2d 205, 214-15 (1991), the
Court acknowledges that the Rape Shield Law must be construed to
permit a trial court to waive the procedural bar if in a given
case preclusion would violate a defendant's constitutional right
of confrontation. Ante at ___ (slip op. at 17-18). The Court
concludes, however, that preclusion was the appropriate remedy
for the procedural violation because introduction of that
evidence in mid-trial without prior notice "blindsided the
State." Ante at ___ (slip op. at 19).
I suggest that the Court's characterization is excessive,
because the critical issue throughout the trial was the victim's
capacity to consent to intercourse. In view of Dr. D'Urso's
report and testimony that the victim lacked capacity to refuse,
that report's reference to the victim's two prior sexual
experiences was an obvious target of defense counsel's cross-examination, and was no less obvious because of defense counsel's
procedural slip. The correctness of the remedy of preclusion
cannot stand or fall on the basis of the statute's procedural
requirement, but ultimately must be determined on the basis of
defendant's constitutional right of confrontation. See Michigan
v. Lucas, supra, 500 U.S. at 153, 111 S. Ct. at 1748, 114 L. Ed.
2d
New Jersey Law
New Jersey State Laws
New Jersey Tax
New Jersey Labor Laws
New Jersey Agencies