Defendant attacks the admission of James' statement on both hearsay and confrontation grounds. The State supports the admissibility of the statement under Evid.R. 63(1)(a) and the holding of State v. Burgos, 200 N.J. Super. 6, 10-12 (App. Div.), certif. den. 101 N.J. 304 (1985).
In State v. Bryant, 217 N.J. Super. 72, 524 A.2d 1291, certif. denied, 108 N.J. 202, 528 A.2d 24, cert. denied, 484 U.S. 978, 108 S.Ct. 490, 98 L.Ed.2d 488 (1987), the Appellate Division squarely addressed the issue and, although acknowledging that courts were divided on the question, determined that the witness's prior inconsistent statement was admissible under the hearsay exception and did not violate the defendant's federal and state constitutional right to confront witnesses. Id. at 77-79, 524 A.2d 1291. The court reached that same conclusion in State v. Burgos, 200 N.J. Super. 6, 10-12, 490 A.2d 316 (App.Div.), certif. denied, 101 N.J. 304, 501 A.2d 961 (1985).
This accords with a number of jurisdictions which take the view that where a witness testifies about events which are covered in a prior out-of-court statement and the witness denies making the out-of-court statement or indicates no present recollection of its contents, then impeachment by a prior statement is permissible. It is also recognized that the trial court has the discretion to make the determination on admissibility. E.g., State v. Butler, 207 Conn. 619, 543 A.2d 270 (1988); People v. Perri, 381 Ill. 244, 44 N.E.2d 857 (1942); People v. Malone, 180 Mich. App. 347, 447 N.W.2d 157 (1989); State v. Marco, 220 Neb. 96, 368 N.W.2d 470 (1985); State v. Burgos, 200 N.J. Super. 6, 490 A.2d 316 (1985), cert. denied, 101 N.J. 304, 501 A.2d 961 (1985); State v. Miles, 73 Wn.2d 67, 436 P.2d 198 (1968); State v. Lenarchick, 74 Wis.2d 425, 247 N.W.2d 80 (1976). See Annot., 99 A.L.R.3d 906 (1980).
Also, Burgos feigned a lack of recollection regarding the facts contained in his prior statement. See State v. Brown, 138 N.J. 481, 540 (1994); State v. Bryant, 217 N.J. Super. 72, 77-79 (App.Div.), certif. denied, 108 N.J. 202, cert. denied, 484 U.S. 978, 108 S.Ct. 490, 98 L.Ed.2d 488 (1987); State v. Burgos, 200 N.J. Super. 6, 10-12 (App.Div.), certif. denied, 101 N.J. 304 (1985). As we have pointed out, however, Burgos should not have been permitted to testify because he refused to take an oath or make an affirmation.