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Wiretapped Statements Excluded from Trial


by in Criminal Defense

State v. Franklin Kincey, unpublished opinion, App. Div. Docket No. A-3205-09T3 (July 9, 2010) – Order excluding statements made by defendant intercepted in wiretaps as unduly prejudicial under N.J.R.E. 403 affirmed.

“[T]he judge … denied the State’s motion, determining pursuant to N.J.R.E. 403 that the limited probative value of the evidence was offset by the danger of undue prejudice, unfair surprise, undue consumption of trial time, and the possible confusion of issues attendant upon the introduction of collateral matters. In reaching this conclusion, the judge separately discussed the three topics contained in the conversations, commencing with those in which Kincey expressed gratitude that Kim and Spencer had not disclosed to the police evidence that could have ‘buried’ him and put him ‘under the jail.’… [He also ruled] that the State had ‘clearer more probative evidence of Defendant’s consciousness of guilt to avoid his apprehension including but not limited to Defendant’s act of fleeing to Atlantic City’ and his stipulation…. [T]he trial judge properly exercised his discretion in barring the admission of conversations regarding flight. The fact that purposeful flight occurred has been conceded. Further, evidence of that fact can be conveyed to the jury through police testimony and other proofs that are more compelling in their nature and far clearer than that contained in the telephone calls the State seeks to introduce. We are also satisfied that Kincey’s comments with respect to evidence of culpability for the shooting, the strength of the prosecutor’s case, and his own defensive tactics are sufficiently cryptic so as to lack substantial probative value and that their introduction would serve only to waste time and confuse the jury…. We note in analyzing Kincey’s comments, that none is specific as to the nature of Spencer’s or Kim’s knowledge of Kincey’s criminal conduct. The State seeks their introduction in order to raise the inference that the comments relate to the shootings at issue. Viewed in that light, their prejudicial effect is substantial. Their probative value is harder to gauge, since Kincey does not concede in any of the statements that Spencer’s and Kim’s knowledge relates to the shootings themselves and, when viewed in light of Kincey’s criminal history, the statements are ambiguous…. In these circumstances, in which the probative value of the wiretaps is questionable and their prejudicial effect is substantial, we find no clear error of judgment on the trial judge’s part in rejecting their admissibility and no manifest denial of justice as the result of the judge’s determination.”






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