State v. Eugene Basil, ? N.J. ?, 2010 N.J. LEXIS 657 (July 22, 2010) - Reversal of conviction affirmed by evenly divided Court.
"We ... must decide whether the introduction of the young woman's hearsay statement to the police implicating defendant in a crime violated defendant's Sixth Amendment right to confront the witnesses against him.... The young woman's out-of-court statement identifying defendant as the gunman was the critical piece of evidence in determining whether defendant was guilty of unlawfully possessing the shotgun. She was not called as a witness, presumably because she was 'unavailable' due to the State's inability to locate her. The police officers at the scene allowed her to leave without obtaining any identifying information because she expressed fear for her safety. Moreover, defendant never had a prior opportunity to cross-examine her.... We conclude that the non-testifying witness's statement implicating defendant was testimonial, that is, the statement was the equivalent of bearing witness against defendant. Here, defendant was denied the opportunity of confronting his accuser. The State has not shown that this case presents the type of ongoing emergency, described in Davis[ v. Washington, 547 U.S. 813 (2006)], that would justify an end run around the Confrontation Clause.... It is understandable why the young woman (who was courageous enough to step forward) might not want to become a State's witness in a criminal prosecution -- fear being one reason. It is not understandable why police officers would not take the most elemental steps to preserve evidence for a future trial.... Condoning the practice would give a perverse incentive to the police not to obtain basic identifying information from its star witness. We cannot overlook the cost to the system of justice by the State's failure to take reasonable steps to produce the one witness whose testimony was critical to defendant's fate. Not securing the name and address of the State's key witness -- but using the statement of that witness to convict the accused -- makes hollow defendant's right of confrontation."
