concurring in result.
The Appellate Division correctly referred to the “real issue” in this case as being the “admissibility of evidence.” See 169 N.J.Super. 524, 531 (App.Div.1979). In its haste to decide a sharply controversial collateral estoppel question containing difficult and serious constitutional ramifications the majority has relegated the evidence issue to a reference in a footnote, ante at *221219-220 n.8, despite the objections at the trial and the briefs and argument of counsel on the evidence issue. Since the controversy may be resolved on a non-constitutional basis, I opt for that solution, keeping in mind Justice Clifford’s observant warning in State v. Saunders, 75 N.J. 200 (1977):
First, there is the sound, oft-expressed principle that constitutional questions should not be reached and resolved unless absolutely imperative in the disposition of the litigation. While the adjudicative process admits of few unyielding rules, this maxim comes as close as any to being an absolute.... Inasmuch as there may be another, non-constitutional basis for decision, we should heed that admonition and defer addressing the constitutional question here. [Id. at 229-230 (Clifford, J., dissenting) (citations omitted)]
The evidentiary nature of the problem is clear when the matter is put into the context of the trial. Defendant acted pro se. He objected during the State’s opening to the prosecutor’s reference to “a recent conviction which I feel has no part in this case at all and was done with the idea of prejudicing me.... ” In his opening defendant asserted that he “did not possess these weapons at any time” and requested the jury “to keep an open mind ... until you have heard all the facts before reaching a verdict.” Defendant stipulated to the 1961 conviction and agreed that the record of conviction is “admissible and the copies can go into evidence.” Defendant again objected when the prosecutor began to introduce through the county clerk the convictions, which a jury had returned a week earlier, of transferring, assigning and disposing of certain weapons without being licensed as a dealer in firearms. The trial court overruled the objection on the ground that “the State can attempt to prove their case in any competent and proper way that they see fit to do so.”
At the conclusion of the State’s case the public defender assigned to assist the defendant moved for a dismissal on the ground that defendant had an absolute right to cross-examine and confront the witnesses who had evidence of the crime. The trial court denied the motion. In summation the defendant stated that the jury had no opportunity to consider the credibility of the witnesses, that the State did not produce one fact *222witness, and that he “was never found in possession of any of the weapons.” It might be noted that the trial court never charged the jury on collateral estoppel or precluded the defendant from offering evidence on the issue of possession.
I
Bypassing the question of whether an inference of possession can be drawn from his conviction of transferring, assigning and disposing of weapons, I am satisfied that the objections made by this lay defendant were clearly directed to the hearsay characteristic of the record of convictions.
Hearsay is defined, under our Rules of Evidence, as “[e]vidence of a statement offered to prove the truth of the matter stated which is made other than by a witness while testifying at the hearing.... ” Evid.R. 63. “The hearing” is defined as that “hearing at which the question under a rule is raised, and not some earlier or later hearing.” Evid.R. 1(7). All statements which fall under this definition of hearsay are inadmissible upon objection unless they fall within one of the hearsay exceptions enumerated in Evid.R. 63(1) through 63(32). Evid.R. 63.
Utilizing these definitions, the introduction of a record of a prior conviction to prove the facts underlying the judgment is clearly hearsay, as it is a “statement” introduced to prove the truth of the matter asserted that has not been made by a witness at the hearing in which it is introduced. See National Conference of Commissioners on Uniform State Laws, Uniform Rules of Evidence Rule 63(20), Comment, at 206 (1953). The question then is whether the placing of the prior conviction into evidence can be justified under an exception to the general prohibition against hearsay evidence.
An examination of Rule 63(20), the rule that explicitly provides for the admission of previous convictions of crime into evidence, strongly indicates that the record of the conviction employed in this case was not meant to be admissible under a hearsay exception.
*223Rule 63(20) reads as follows:
In a civil proceeding, except as otherwise provided by court order on acceptance of a plea, evidence is admissible of a final judgment against a party adjudging him guilty of an indictable offense in New Jersey or of an offense which would constitute an indictable offense if committed in this state, as against that party to prove any fact essential to sustain the judgment, [emphasis added]
The rule’s limitation to civil proceedings was no accident. The New Jersey Supreme Court Committee on Evidence, which drafted the rules, used as its starting point the Uniform Rules of Evidence prepared by the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association in 1953. Uniform Rule 63(20) excepted from the hearsay bar “[ejvidence of a final judgment adjudging a person guilty of a felony, to prove any fact essential to sustain the judgment.” The Supreme Court Committee rejected that proposal and recommended the exception be restricted to civil cases. Its report states:
Rule 63(20) is limited to civil cases. It is felt that the stakes are too high in a criminal proceeding to permit the use of prior convictions as evidence. This is a controversial question and the Court should consider whether they wish the Rule to be limited to civil actions. [Report of the New Jersey Supreme Court Committee on Evidence Rule 63(20), Comment, at 197 (1963)]
In this respect, Evid.R. 63(20) can be contrasted with Fed.R. Evid. 803(22) which creates the following hearsay exception:
Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.
This Court chose not to follow that route in approving the Rules of Evidence and, while modifying the committee’s proposed rule in other respects, did not alter the Rule’s singular applicability to civil proceedings. The clear intent of 63(20), as well as its literal terms, was to limit the admissibility of prior convictions “to prove any facts essential to sustain the judgment” to civil cases. Thus, admissibility of a prior conviction record to prove facts established therein and essential in a *224subsequent criminal proceeding would appear to be subject to the hearsay objection.
It is recognized, of course, that a prior conviction may be introduced in criminal proceedings for special purposes which do not implicate the hearsay rule. For example, a prior conviction may be used not as substantive evidence but to attack the credibility of a witness. N.J.S.A. 2A:81 — 12; State v. Sands, 76 N.J. 127 (1978). A prior conviction may also be introduced when the fact of conviction itself constitutes an essential element of proof in the subsequent prosecution. This is illustrated in the present case by the defendant’s stipulation of a 1961 conviction as admissible proof of his status as a previously convicted felon under N.J.S.A. 2A:151-8 (now replaced by N.J.S.A. 2C:39-7 of the New Jersey Code of Criminal Justice). Such specialized uses of prior convictions are not present in regard to the use of the unlicensed transfer conviction in this prosecution.
The State has also asserted that Evid.R. 55 independently permits the introduction of Ingenito’s prior conviction, a point not previously raised in these proceedings. Evid.R. 55 states that evidence that a person committed a crime on a specified occasion is admissible “to prove some other fact in issue including motive, intent, plan, knowledge, identity, or absence of mistake or accident.” What the State overlooks is that proof of the other crime should be direct evidence of that crime, not hearsay. Generally, evidence, though relevant and material, is subject to the hearsay rules. See Evid.R. 63; Uniform Rules of Evidence Rule 63, Comment, at 197; State v. Hummel, 132 N.J.Super. 412, 424-425 (App.Div.1975), certif. den., 67 N.J. 102 (1975) (evidence admissible under Evid.R. 55 excluded as hearsay); cf. State v. Atkins, 78 N.J. 454 (1979) (prior convictions admitted under Evid.R. 55 in the absence of any hearsay objection).1
*225The record of conviction having been improperly admitted into evidence,2 the conviction cannot stand and the cause must be remanded for a new trial.
II
The majority has chosen to decide this case on the ground that a defendant’s constitutional right of trial by jury forecloses the applicability of collateral estoppel. It contends that two principal reasons justify this conclusion, viz., collateral estoppel prevents one jury from considering all the significant facts and constitutes a “gravitational pull toward a guilty verdict.” Ante at 216-217.
This rationale is flawed. It confuses rules of evidence, the constitutional right of confrontation and the constitutional right to trial by jury. The Sixth Amendment provides that an accused shall enjoy the right to a trial “by an impartial jury” as well as the right “to be confronted with the witnesses against him.” The constitutional aspect of the right to trial by jury, historically at least, was directed to afford a person trial by *226independent people rather than by someone under the control of the government. The concept of a group was ascribed to the reluctance to entrust life and liberty to one person. Duncan v. Louisiana, 391 U.S. 145, 155-156, 88 S.Ct. 1444, 1450-1451, 20 L.Ed.2d 491, 499-500 (1968). I do not believe that the constitutional right to trial by an impartial jury includes an obligation to present every parcel of direct evidence to a jury. History, logic, and policy do not support that position.
Constitutional principles of double jeopardy and confrontation adequately protect and assure a defendant of a fair trial. A critical point that the majority overlooks is that, when collateral estoppel is applied, the defendant has already had a jury hear, examine and sift the testimony of the witnesses during the prior trial. The truth of a particular fact has been established. The second jury therefore is assisted in its quest for the truth in the same fashion as when a stipulation of fact has been presented to it.
The fact that collateral estoppel may establish a link in proving the defendant’s guilt admittedly is a “gravitational pull toward a guilty verdict.” Obviously, evidence that indicates a defendant is guilty, particularly admissions and confessions, tends to establish that guilt and may well color a juror’s appreciation of the defendant’s conduct. Moreover, some significant facts may be established without formal proof. See Evid.R. 9 (judicial notice). The majority concludes that because in some situations that tendency has been improperly generated, the same conclusion follows when collateral estoppel is applied. This reason ignores the desirability and logic of collateral estoppel, which is the preclusion of litigation of any issue actually determined between the same parties involving a different claim. Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469, 475 (1970); State v. Gonzalez, 75 N.J. 181, 186 (1977). In not one of the cases cited for its proposition has the majority referred to a situation where a defendant had been afforded the right of examination at a prior trial. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and *227State v. Humphreys, 54 N.J. 406 (1969), held unconstitutional jury instructions that could have been interpreted as requiring a conclusive presumption of a fact necessary to convict because due process required proof beyond a reasonable doubt of every such fact. In United States v. Spock, 416 F.2d 165 (1 Cir. 1969); State v. Simon, 79 N.J. 191 (1979), and State v. Christener, 71 N.J. 55 (1976), jury instructions or interrogatories were found unduly suggestive of the defendant’s guilt. None dealt with the situation where a defendant had already had an opportunity to confront, examine and cross-examine all the witnesses and a jury had resolved the factual issues against the defendant.
Courts which have decided the question have permitted the use of collateral estoppel against a defendant.3 See, e. g., Hernandez-Uribe v. United States, 515 F.2d 20 (8 Cir. 1975), cert. den., 423 U.S. 1057, 96 S.Ct. 791, 46 L.Ed.2d 647 (1976) (defendant previously convicted of illegal entry could not relitigate alienage in trial for unlawful re-entry); United States v. Colacurcio, 514 F.2d 1 (9 Cir. 1975) (defendant previously convicted of conspiracy to promote gambling could not relitigate receipt of money from gambling operation in tax evasion case); Pena-Cabanillas v. United States, 394 F.2d 785 (9 Cir. 1968) (alienage); United States v. Rangel-Perez, 179 F.Supp. 619 (S.D.Cal.1959) (alienage); People v. Mojado, 22 Cal.App.2d 323, 70 P.2d 1015 (Dist.Ct.App.1937) (paternity could not be relitigated in second child support trial); Commonwealth v. Ellis, 160 *228Mass. 165, 35 N.E. 773 (Sup.Jud.Ct.1893) (paternity); Commonwealth v. Feldman, 131 Mass. 588 (Sup.Jud.Ct.1881) (defendant previously convicted of drunkenness could not relitigate that drunkenness in trial for assault while in a drunken condition); Commonwealth v. Evans, 101 Mass. 25 (Sup.Jud.Ct.1869) (defendant previously convicted of assault could not relitigate self-defense in manslaughter trial following death of victim); Carmody v. Seventh Judicial District Court, 81 Nev. 83, 398 P.2d 706 (Sup.Ct.1965) (dictum) (determination that defendants committed robbery may not be relitigated in trial for murder after victim’s death); People v. Plevy, 67 App.Div.2d 591, 416 N.Y.S.2d 41 (1979) (defendant previously convicted of murder on basis of evidence seized by police could not relitigate legality of search in subsequent robbery trial); State v. Braskett, 10 Ohio Op.2d 497, 162 N.E.2d 922 (Ct.Com.Pleas 1959) (paternity); State v. Sargood, 80 Vt. 412, 68 A. 51 (Sup.Ct.1907) (determination that defendant had killed colts by poisoning their well precluded relitigation that defendant had poisoned the well in action for death of an individual).4 Contrary to the majority’s assertion, ante at 218 n.7, most of these cases applied collateral estoppel to a “core” issue. The majority does not suggest any rational basis for distinguishing the status cases, which also applied collateral estoppel to the core of the crime charged.
Collateral estoppel rests on sound public policy principles. Witnesses are spared from being recalled to testify about facts already proven at an earlier trial; judges, jurors and prosecutors are freed sooner for other trials, and verdict consistency is encouraged. These purposes are no less compelling where the trials were bifurcated to protect the defendant, see State v. Middleton, 143 N.J.Super. 18 (App.Div.1976), aff’d p. c. o. b. 75 *229N.J. 47 (1977). Assuming that the record of prior convictions had been properly admitted into evidence, I perceive of no adequate reason to require unnecessary relitigation where a defendant has had a fair trial on all the issues and his right of confrontation has been adequately protected.
I would reverse and remand for a new trial because of the erroneous admission into evidence of the prior convictions.
SCHREIBER, J., concurring in the result.
For reversal and remandment — Chief Justice WILENTZ and Justices SULLIVAN, PASHMAN, CLIFFORD, SCHREIBER, HANDLER and POLLOCK-7.
For affirmance — None.
This admission conforms with the rule that hearsay evidence not objected to is evidential. See Smith v. Delaware & Atl. Tel. & Tel. Co., 63 N.J.Eq. 93, *22595 (Ch.1902), aff'd 64 N.J.Eq. 770 (E. & A. 1902); In re Petagno, 24 N.J.Misc. 279, 283-284 (Ch.1946); C. McCormick, Evidence, § 245 at 584 (2d ed. 1972); Annotation, “Consideration, in determining facts, of inadmissible hearsay evidence introduced without objection,” 79 A.L.R.2d 890 (1961).
The State did not request the court to take judicial notice of the records of conviction pursuant to Evid.R. 9(2)(b). Admissibility under this rule is not subject to the hearsay objection. Evid.R. 10(2)(b). Query whether judicial notice of such records would prove the contents of the conviction aside from the conviction itself.
The State did not claim the record of conviction admissible under Evid.R. 63(17), which excepts from the hearsay objection copies of official records which are admissible to prove the contents of the records. In its supplemental brief, the State contends that the record was admissible under Evid.R. 63(15), which excepts reports and findings of public officials of acts done or observed by them. This is doubtful since the county clerk did not observe the jury return its verdict. Moreover, it is questionable whether Evid.R. 63(15) or (17) would apply in this situation in view of Evid.R. 63(20).
The cases cited by the majority do not hold to the contrary. For example, United States v. DeAngelo, 138 F.2d 466 (3 Cir. 1943), held that a defendant on trial for conspiracy was entitled to put into evidence a judgment of acquittal of robbery and thereby preclude the government from relitigating the defendant’s presence at and participation in the perpetration of the robbery. Such factual preclusion did not bar defendant’s prosecution on the conspiracy indictment and no question of double jeopardy was involved. United States v. Bruno, 333 F.Supp. 570 (E.D.Pa.1971), and United States v. Carlisi, 32 F.Supp. 479 (E.D.N.Y.1940), also involved the preclusive effect of a defendant’s prior acquittal. The only comfort the majority may derive from these decisions is some dictum referring to the concept that mutuality is not a condition precedent to the applicability of collateral estoppel.
The majority implicitly criticizes the Massachusetts and Vermont cases because they “date back almost a century or more.” Ante at 218 n.7. This is a curious criticism indeed, particularly in view of the awareness of the long held cherished right of trial by jury expressed in the Magna Charta and in the Declaration of Rights, ante at 210.