RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2238-14T3
APPROVED FOR PUBLICATION
STATE OF NEW JERSEY IN
November 9, 2016
THE INTEREST OF A.R., a minor.
APPELLATE DIVISION
_________________________________
Argued October 17, 2016 – Decided November 9, 2016
Before Judges Sabatino, Haas and Currier.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson
County, Docket No. FJ-09-0170-15.
Alison Perrone, Designated Counsel, argued
the cause for appellant A.R. (Joseph E.
Krakora, Public Defender, attorney; Ms.
Perrone, on the brief).
Jennifer J. Pinales, Assistant Prosecutor,
argued the cause for respondent State of New
Jersey (Esther Suarez, Hudson County
Prosecutor, attorney; Ms. Pinales, on the
brief).
Frank Muroski, Deputy Attorney General,
argued the cause for amicus curiae State of
New Jersey Attorney General (Christopher S.
Porrino, Attorney General, attorney; Ian C.
Kennedy, Special Deputy Attorney General/
Acting Assistant Bergen County Prosecutor,
of counsel and on the brief).
Lawrence S. Lustberg argued the cause for
amicus curiae John J. Gibbons Fellowship in
Public Interest and Constitutional Law at
Gibbons P.C. (Gibbons P.C., attorneys; Mr.
Lustberg and Jake F. Goodman, on the brief).
The opinion of the court was delivered by
SABATINO, P.J.A.D.
This appeal concerns the continued validity of what can be
termed the "incompetency proviso" within the tender-years
hearsay exception, N.J.R.E. 803(c)(27). The exception, which
was enacted in 1989 in accordance with the Supreme Court's
proposal in State v. D.R., 109 N.J. 348 (1988), reads as
follows:
A statement by a child under the age of 12
relating to sexual misconduct committed with
or against that child is admissible in a
criminal, juvenile, or civil proceeding if
(a) the proponent of the statement makes
known to the adverse party an intention to
offer the statement and the particulars of
the statement at such time as to provide the
adverse party with a fair opportunity to
prepare to meet it; (b) the court finds, in
a hearing conducted pursuant to [N.J.R.E.]
104(a), that on the basis of the time,
content and circumstances of the statement
there is a probability that the statement is
trustworthy; and (c) either (i) the child
testifies at the proceeding, or (ii) the
child is unavailable as a witness and there
is offered admissible evidence corroborating
the act of sexual abuse; provided that no
child whose statement is to be offered in
evidence pursuant to this rule shall be
disqualified to be a witness in such
proceeding by virtue of the requirements of
[N.J.R.E.] 601.
[N.J.R.E. 803(c)(27) (emphasis added).]
2 A-2238-14T3
After a bench trial in the Family Part, the appellant
juvenile in this case, A.R., was found to have
committed inappropriate sexual contact with a minor victim, J.C.
On the date in question, both appellant and J.C. rode a school
bus together that was returning them from summer camp.
Appellant was then age fourteen, and J.C. was age seven,
although developmentally comparable to a three-year-old. After
getting off the bus, J.C. allegedly told his mother's cousin
that appellant touched his "pee-pee" during the bus ride. The
child's mother reported this to the police. A detective with
the county prosecutor's office conducted a videotaped interview
of J.C. eighteen days later. During that interview, J.C.
repeated the allegations of genital touching.
At a pretrial Rule 104 hearing, the trial judge ruled that
J.C.'s hearsay statements to the cousin and the detective were
sufficiently trustworthy to be admissible under N.J.R.E.
803(c)(27). However, when the trial commenced, the judge
questioned J.C. about his ability to discern and tell the truth,
and twice concluded from J.C.'s troublesome responses that he
was not competent to testify under the criteria of N.J.R.E. 601.
Nevertheless, because of the incompetency proviso in N.J.R.E.
803(c)(27), the judge allowed the prosecution to present
testimony from J.C.
3 A-2238-14T3
The child repeated on direct examination the sexual
touching allegations. Defense counsel conducted a brief cross-
examination. The judge relied on J.C.'s hearsay statements in
concluding that appellant had committed the sexual touching,
even though no eyewitnesses on the bus had corroborated the
allegations.
On appeal, the juvenile argues, among other things, that
J.C.'s hearsay statements to the detective are "testimonial" as
defined by the United States Supreme Court in Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004), and its progeny. Appellant contends that he was
deprived of his rights assured under the Confrontation Clauses
of the United States and New Jersey Constitutions of meaningful
cross-examination of those testimonial statements due to J.C.'s
incompetency. Appellant thus asserts that the incompetency
proviso within N.J.R.E. 803(c)(27) must be invalidated as to
such testimonial hearsay statements. Appellant further argues
that his adjudication of delinquency must be set aside for lack
of adequate proof.
The pivotal question under the Confrontation Clause, as set
forth in the Court's controlling precedents since Crawford, is
whether a declarant's hearsay statements are testimonial. The
Court has adopted an objective "primary purpose" test for
4 A-2238-14T3
ascertaining whether hearsay statements made to law enforcement
officers are testimonial. See Davis v. Washington, 547 U.S.
813, 822, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237
(2006).
Here, the circumstances reflect that the objective "primary
purpose" of the detective's videotaped interview was to elicit
and preserve statements from an identified child victim of
sexual abuse about wrongful acts for potential use as evidence
in a future prosecution. The child's recorded statement, which
was admitted over objection, was consequently testimonial.
The Confrontation Clause guarantees an accused, including a
juvenile in our State such as A.R., the right to confront
testimonial statements through cross-examination. Although
cross-examination was attempted by appellant's trial counsel in
this case, that exercise was inadequate to safeguard her
client's rights, given the trial court's undisputed finding that
this particular child was incompetent as a witness.
As a matter of evidence law, the proviso in N.J.R.E.
803(c)(27) authorizes the admission of certain hearsay
statements from young sexual assault victims who are not
competent witnesses. Nevertheless, the constitutional
imperatives of the Confrontation Clause must override that
5 A-2238-14T3
provisio in the circumstances presented here with respect to the
detective's interview of J.C.
For similar reasons, the child's incompetent testimony at
appellant's bench trial repeating his accusations must likewise
be disregarded. However, J.C.'s spontaneous utterance to his
relative after getting off the bus was not testimonial under the
Confrontation Clause. Hence, as appellant concedes, that
particular statement was admissible as evidence for the
prosecution.
For the amplified reasons that follow, we therefore reverse
the trial judge's admission of this incompetent child's
testimonial statements. We remand the matter for the judge, in
his special capacity as fact-finder, to consider whether the
State's remaining evidence suffices to prove appellant's
commission of the charged offense beyond a reasonable doubt.
I.
This case stems from an alleged incident in which appellant
A.R., a juvenile born in April 2000, had inappropriate sexual
contact on a school bus with J.C., born in June 2007. We
present the factual record in some detail, insofar as it affects
our legal and constitutional analyses.
6 A-2238-14T3
The Alleged Incident on the Bus and J.C.'s Statement to
G.K.
On July 3, 2014, A.R. and J.C. were on a school bus
transporting approximately twenty children with special needs
from a summer day camp. J.C. is diagnosed with autism and ADHD.1
The parties agree that, although chronologically the age of
seven, he developmentally corresponded to a three-year-old at
the time of the alleged incident.
J.C. was picked up at the bus stop that afternoon by his
mother's cousin, G.K. After getting off of the bus, J.C.
blurted out to G.K. that A.R. had touched him on his "belly
button and pee-pee." G.K. walked J.C. home and notified his
mother of the accusation.
J.C.'s mother reported the incident to the local police,
which referred the matter to the Hudson County Prosecutor's
Office.
The Detective's Videotaped Interview with J.C.
Eighteen days later, on July 21, 2014, Detective David
Abromaitis of the Prosecutor's Office interviewed J.C. The
videotaped interview, which took place in a room at the
1
The trial record does not disclose what, if any, special needs
appellant may have. He has not argued that he lacked the mental
capacity to be culpable for the charged offense.
7 A-2238-14T3
Prosecutor's Office, lasted about fourteen minutes. No other
persons were present, and no "pre-interview" of J.C. was
conducted. During the interview, J.C. repeated his claim that
A.R. had touched his "pee-pee" and other areas of his body while
they were sitting on the bus.
Following the detective's interview of J.C., appellant was
charged in a juvenile delinquency complaint with acts which, if
committed by an adult, would constitute second-degree sexual
assault, N.J.S.A. 2C:14-2(b). The State moved to admit J.C.'s
statements to G.K. and the detective under the tender-years
hearsay exception, N.J.R.E. 803(c)(27).2 The defense filed
opposition, and the assigned Family Part judge conducted a
hearing pursuant to N.J.R.E. 104, as required under the tender-
years exception, to determine the admissibility of the child
victim's statements. In particular, the Rule 104 hearing
focused upon the hearsay exception's admissibility requirement
that "on the basis of the time, content and circumstances of the
statement there is a probability that the statement is
trustworthy[.]" N.J.R.E. 803(c)(27).
2
At our request, counsel have furnished us with the parties'
motion briefs from the trial court, which reveal the positions
they took below.
8 A-2238-14T3
The Rule 104 Hearing
Detective Abromaitis was the State's main witness at the
Rule 104 hearing. He had been employed by the County
Prosecutor's Office for over six years, during which time he had
worked on hundreds of sexual assault investigations. The
detective stated that he had received special training on the
protocol for conducting interviews with child victims.
In tandem with the detective's testimony, the trial judge
was provided with a transcript of J.C.'s recorded interview.
The video was played at the hearing in court in the presence of
both counsel.3
The video reflects that when J.C. walked into the interview
room, the detective asked him, "What's up?", to which J.C.
almost immediately responded, "[A.R.] touched my pee-pee." The
detective then queried "Who?", to which J.C. replied, "[A.R.]
touched my pee-pee . . . he touched my belly button . . . he
touched my belly button [and] everybody all laughed at me."
Later in the interview, the detective asked J.C. where he
was when the touching happened. Initially, J.C. stated that he
did not know. The location was then clarified with the
3
We have viewed the video recording as part of the record on
appeal, as well as the associated transcript, which is not
disputed as to its accuracy.
9 A-2238-14T3
following exchange, through the use of leading questions by the
detective:
Q: Okay . . . can you tell me where you
were when [A.R.] touched you? Were you at
home?
A: Yes I was at home[.]
Q: Or were you somewhere else?
A: Somewhere else (inaudible).
Q: So where were you? When you say
somewhere else, where's somewhere else?
A: I don't know.
Q: Okay . . . were you on the bus?
A: Yes . . . yes.
Q: Yes . . . Okay and where was [A.R.]?
A: He was on the bus with me[.]
Q: He was with you? Okay[.]
A: Yes[.]
When asked by the detective with whom he lives, J.C.
responded that he lives with his mother, his friend, dragons,
and "Chowder and Clarence."4 J.C. stated that A.R. touched him
on his "pee-pee," eye, hand, eyebrows, nose, mouth, and legs.
Using a working doll presented by the detective, J.C.
4
It is undisputed that J.C. does not live with a friend but does
live with his mother and an older brother. J.C.'s references to
"Chowder" and "Clarence" are apparently to cartoon characters.
10 A-2238-14T3
demonstrated where A.R. had touched him on his "pee-pee." The
detective did not ask J.C. at any point during the interview if
he understood the difference between the truth and a lie.
According to the detective, J.C.'s "spontaneous utterings
of the assault" were common in such child victim interviews. On
cross-examination, the detective acknowledged that, although
J.C. had stated that the inappropriate touching occurred while
being seated, J.C. demonstrated with the working doll that the
touching instead had occurred with his pants fully down.
The prosecution also elicited testimony from J.C.'s
mother's cousin, G.K., who had picked J.C. up from the bus stop.
According to G.K., she observed A.R., who she identified in the
courtroom, holding J.C.'s hand after they got off the bus. She
recalled that while walking with her across the street, J.C.
said, "[A.R.] touched [my] belly button and pee-pee." G.K. then
walked J.C. home and notified his mother of the incident.
The defense countered at the Rule 104 hearing with expert
testimony from a forensic psychologist with experience in
techniques used in interviewing child victims. The expert
opined that the detective's interview of J.C. did not comport
with professional standards. According to the expert, the
detective should have made an assessment of J.C.'s ability to
11 A-2238-14T3
"distinguish between the truth and a lie" and the child's
understanding of the "burden to tell the truth."
The defense expert perceived a "red flag" raised by J.C.'s
apparent inability to distinguish fantasy from reality, such as
when J.C. stated in the interview that he lived with cartoon
characters. He found this particularly significant in light of
J.C.'s developmental capacity equivalent to that of a three-
year-old child. The expert also criticized the detective for
"selectively investigating [the child's] statements" by using
leading questions, and by tending to pursue only the child's
inculpatory statements that conformed to a theory of sexual
assault, but not statements which undercut that theory.
The Judge's Findings of Admissibility Under N.J.R.E.
803(c)(27)
After considering these matters, the judge preliminarily
ruled that the statements J.C. made to G.K. after getting off of
the bus and to the detective during the interview were both
admissible under N.J.R.E. 803(c)(27). Tracking the requirements
of that hearsay exception, the judge found that "there is a
probability that [each] statement is trustworthy on the basis of
the time[,] content[,] and circumstances of the statement[s]."
The judge acknowledged that the detective did ask a few
leading questions, but found those questions were not a
12 A-2238-14T3
"decisive determining factor" in the analysis of
trustworthiness. The judge also found that the detective's
failure to delve into J.C.'s ability to understand the
difference between telling the truth and a lie did not
"automatically" render the child's statements untrustworthy.
The judge was unpersuaded by the defense expert's
criticisms of the interview. Instead, the judge concluded that
"the departures, if any, from what would be a strict protocol or
strict standards of questioning . . . did not cause this
[child's] statement to [the detective] to become untrustworthy."
With respect to J.C.'s initial statement to G.K. after
getting off the bus, the judge found significant that the
assertion was "completely spontaneous." Appellant had failed to
show anything "that would render that statement not to be
probably trustworthy in the totality of the circumstances."
As a caveat, the judge did state that his ruling to admit
J.C.'s hearsay statements was expressly "conditioned upon the
alleged victim being available to testify."
The Judge's Findings of J.C.'s Incompetency
Following her opening statement, the prosecutor called J.C.
to the stand. The judge noted that defense counsel had filed a
pretrial motion challenging J.C.'s competency. Consequently,
13 A-2238-14T3
the judge conducted a preliminary examination of J.C. to assess
his competency before the child's trial testimony proceeded.
During the preliminary examination, the judge posed a
series of questions to J.C., supplemented by a few more asked by
the prosecutor. The questions delved into J.C.'s ability to
discern truth from lies, and whether J.C. understood the
importance of telling the truth.
Many of J.C.'s responses to these questions posed in the
courtroom reflected his confusion between reality and fantasy,
and a lack of recognition of his obligation to tell the truth.
For example, J.C. agreed that it would be the "truth" to call a
"red" toy and a "red" tie "green". He also agreed that if he
were told a "dinosaur" was a "chicken," that would also be the
"truth". When asked whether it would be the truth or a lie to
call the courthouse a McDonald's, J.C. ambiguously responded,
"Yes." He stated several times that he did not know what the
truth is, or know the difference between the truth and a lie.
He denied knowing whether he was supposed to tell his mother the
truth or a lie. He also nonsensically referred to the truth as
a "dinosaur" and "chicken butt."
Given these problematic responses, the judge ruled that
J.C. was not competent to testify. But in light of the proviso
within N.J.R.E. 803(c)(27)(c) permitting tender-years hearsay
14 A-2238-14T3
statements despite a child declarant's incompetency, the judge
allowed the prosecutor to proceed with J.C.'s direct
examination.
The prosecutor attempted on direct to focus J.C.'s
attention to the alleged incident on the school bus, but she was
thwarted in that endeavor by J.C. stating several times that he
had actually walked to summer school. At that point, the
prosecutor requested that the judge allow her to recall J.C. to
the stand on another day, because the child had not taken his
medication for several hours.
Defense counsel objected to the State being given a second
attempt to establish J.C.'s competency. The judge overruled the
objection, exercising his discretion to oversee court
proceedings under N.J.R.E. 611. Among other things, the judge
noted that J.C. has "several types of diagnosed mental health
disabilities," and that since the State had not requested J.C.
to testify via a closed-circuit video, there were "too many
people in the courtroom" when J.C. first testified.
The Resumption of the Trial and the Court's Renewed Finding
of J.C.'s Incompetency
The case resumed several days later. J.C. was recalled to
the stand by the prosecutor, who renewed an attempt to establish
the child's competency. However, J.C. again showed difficulty
15 A-2238-14T3
discerning truth from fiction, stating that it would be "right"
to call a spider a flower, and to call a red spider black.
Revealingly, J.C. also answered "no" when he was asked, "if you
tell mommy something that did not happen, would you get in
trouble?"
Despite J.C.'s continued shortcomings as a witness, the
prosecutor pivoted to the substantive allegations of this case.
She asked the child, "Did anything happen this summer on the
school bus?" J.C. replied in the affirmative, elaborating that
"[A.R.] touched me." J.C. added that A.R. had touched his "pee-
pee" and "butt." He then identified A.R. in the courtroom as
the person who had touched him.
Defense counsel conducted a brief cross-examination of J.C.
During that questioning, J.C. reiterated that appellant had
touched his "pee-pee" and "butt," as well as "all over." J.C.
agreed that he sat with the "small kids" near the front of the
bus. J.C. also agreed that there was another child on the bus
who had the same first name as appellant.
At that point, in light of J.C.'s continued problems with
exhibiting a grasp of the basic concepts of truth-telling, the
trial judge reiterated his earlier finding that the child was
not competent to testify. The judge amplified his reasoning as
follows:
16 A-2238-14T3
My decision with regard to the issue of
competency is that the witness was not
competent. And I'm going to state now for
the record my reasons why I'm saying that,
but there are three elements of the issue to
determine the issue of competency.
Number one is that the Court must be
satisfied that the witness, in this case the
child, understands the difference between
right and wrong. I think that some of the
answers that [J.C.] gave do indicate that he
knows the difference between right and
wrong[,] although there were some answers
also that it was not clear that he knew that
difference. I think he answered the
questions truthfully but there were a couple
of answers that he gave -- for example, he
stated that the spider -- and, by the way,
as he was answering questions, he had a toy
spider which was like about more or less
three inches in diameter and the top of the
spider was red but the part underneath the
spider and the legs were grey colored.
There were a couple of times where he gave
answers which were not clear, whether he
knew the difference between the right and
the wrong answer.
For example, the assistant prosecutor
asked if she said that the spider was black,
would that be right, I think he said right
to that, and that's an example of a couple
of times when his answers were not
consistently accurate in reflecting right
versus wrong. However, I do think that most
of the times he did seem to answer the
questions correctly.
Now, the other aspect of the inquiry as
to competency is that the witness must know
that to tell the truth is right. That
aspect, I'm not sure. I was not satisfied
that the witness knows that to tell the
truth is right in the moral sense of the
17 A-2238-14T3
word right. While I think that most of the
answers were truthful, I am not satisfied
that he knew that to tell the truth is right
and many, if not most, of the answers that
he gave that have to do with that did not
reflect an understanding that he knows that
to tell the truth is the right thing.
And thirdly, the witness, in this case
the child, alleged victim, must understand
that he or she will be punished if he or she
lies to the Court. There was no answer -- I
don't -- I think there was only like one or
two questions in that regard and the answers
that the witness gave did not show that he
knew that if he lied, that there would be a
consequence, a negative consequence to him.
So of the three aspects that the Court
must be satisfied of, I think that -- I
think he was for the most part truthful.
However, I'm not satisfied that his answers
indicated that he knew that to tell the
truth was right and certainly not at all
that he understood that he would be punished
or that there would be consequences if he
lied to the Court. So, for those reasons, I
do find that the witness was not competent.
[(Emphasis added).]
After the judge sustained appellant's objection to the
State calling J.C.'s mother as an impromptu witness, the
prosecution rested. The defense then moved for dismissal based
on (1) the fact that the alleged victim lacked competency and
was therefore unavailable; and (2) a claimed insufficiency of
the evidence. The judge rejected both arguments. In doing so,
the judge noted that, although J.C. lacked competency as a
18 A-2238-14T3
witness, he had been "consistent" with respect to his
allegations of improper touching, both in his earlier hearsay
statements and in the courtroom.
The Defense Proofs
The defense called three witnesses: the driver and the
aide who were on the bus on the day in question, and a
transportation liaison employed by the board of education. The
aide testified that she was responsible for seating the "small
kids in the front and the big kids . . . in the back[.]" She
explained that she sits in the middle of the bus, so she can
keep an eye on both the small and big kids and keep them
separated. The aide asserted that she did not notice anyone
pulling another student's pants down on the day in question.
Additionally, no one said anything to her about an incident
occurring that day.
The bus driver similarly testified that he did not notice
anything unusual taking place that day. According to the
driver, A.R. would be considered one of the "[b]ig kids," and
that the students were seated on the bus by height.
Lastly, the transportation liaison testified that there
were two children with appellant's first name on the bus, one
who was enrolled in elementary school and the other in high
school. The liaison agreed that the "whole entire [bus] trip
19 A-2238-14T3
[was] really very short," approximately twenty to thirty
minutes.
The Court's Adjudication of Delinquency
Following summations, the trial judge issued an oral
opinion concluding that the State had met its burden of proof,
and adjudicating A.R. delinquent. In particular, the judge
determined that A.R. had "touched the victim on the victim's
penis underneath his clothes."
As part of his fact-finding, the judge adopted J.C.'s
specific assertion to the detective that, when the touching
occurred, "other children laughed at [him]," even though that
particular claim had not been repeated in J.C.'s courtroom
testimony. The judge rejected the defense's suggestion of
mistaken identity, finding that although "there may have been
another minor on the bus also named [A.] . . . the juvenile in
the courtroom was the one identified by both [G.K.] and by the
victim."
Reflecting again on J.C.'s credibility, the judge repeated
his earlier finding that the boy was "consistent" with his
account, even though he was not competent to testify. On the
whole, the judge determined that J.C.'s testimony about the
incident on the bus was truthful, "given the consistency of
20 A-2238-14T3
everything that the victim said right after the incident and
[his] statement to the detective and in this courtroom."
As a disposition for appellant's offense, the judge placed
him on a two-year period of probation. The two years were
designated to run concurrently with another probationary term
that A.R. was already serving for another juvenile offense. The
judge also required that A.R. be admitted into a program where
he could receive sex offender treatment.
The Appeal and the Amici
A.R. has raised the following issues on appeal:
POINT ONE
THE IMPROPER ADMISSION OF THE CHILD'S
UNRELIABLE OUT-OF-COURT STATEMENT REGARDING
ALLEGED SEXUAL ABUSE DENIED THE JUVENILE THE
RIGHT TO CONFRONT WITNESSES AND THE RIGHT TO
DUE PROCESS OF LAW AND A FAIR ADJUDICATION
PROCEEDING.
POINT TWO
THE COURT ERRED IN BASING THE ADJUDICATION
OF DELINQUENCY UPON THE VICTIM'S TESTIMONY
WHERE THE COURT FOUND THE VICTIM INCOMPETENT
TO TESTIFY.
POINT THREE
BECAUSE J.C. WAS FOUND INCOMPETENT AS A
WITNESS, HE WAS NOT AVAILABLE FOR MEANINGFUL
CROSS EXAMINATION, AND THUS, ADMISSION OF
HIS HEARSAY STATEMENT VIOLATED THE
CONFRONTATION CLAUSE. (Not Raised Below).
21 A-2238-14T3
POINT FOUR
THE ADJUDICATION OF DELINQUENCY MUST BE
REVERSED BECAUSE THE EVIDENCE DID NOT
ESTABLISH THE JUVENILE'S GUILT OF SEXUAL
ASSAULT BEYOND A REASONABLE DOUBT.
After the parties filed their appellate briefs, we invited
two amici to participate: the Attorney General and the John J.
Gibbons Fellowship in Public Interest and Constitutional Law
(the "Gibbons Fellowship"). We extended those invitations
because of appellant's constitutional challenge to the
incompetency proviso in N.J.R.E. 803(c)(27), and also in light
of the most recent Confrontation Clause jurisprudence emanating
from the United States Supreme Court.5 The amici graciously
accepted our invitations, providing helpful briefs and oral
arguments on the important issues before us.
In its amicus brief and at oral argument, the Attorney
General has agreed with the prosecutor that the incompetency
proviso is constitutional under the Confrontation Clause,
5
The significance of the constitutional issue has been
underscored by the observation in a leading New Jersey treatise
on evidence law, stating that "[i]t is unclear, given the New
Jersey Supreme Court's rejection of Subsection (c)(ii) [of
N.J.R.E. 803(c)(27)] based on Crawford, whether a criminal
defendant's rights under the Confrontation Clause are
sufficiently protected" under the proviso within the rule
deeming incompetent child witnesses to be "available" to
testify. See Biunno, Weissbard & Zegas, Current N.J. Rules of
Evidence, ("Biunno") comment 6 on N.J.R.E. 803(c)(27) (2016).
22 A-2238-14T3
assuming we reach that issue, and has joined with the prosecutor
in urging affirmance of this juvenile disposition. The Gibbons
Fellowship, meanwhile, has argued that J.C.'s hearsay statements
were improperly admitted under N.J.R.E. 803(c)(27) and that,
even if the hearsay is deemed admissible under the evidence
rules, appellant's confrontation rights were violated because
his counsel had no meaningful opportunity to cross-examine this
incompetent child in court. The Gibbons Fellowship has thus
joined with appellant's counsel in urging reversal.
II.
A.
The Genesis of the Tender-Years Exception
The tender-years hearsay exception, presently codified at
N.J.R.E. 803(c)(27), was crafted by our State Supreme Court in
1988 in D.R., supra, 109 N.J. at 348. The Court sought in D.R.
to balance, on the one hand, the difficulties of young child
victims testifying in court about acts of alleged sexual abuse,
and, on the other hand, the interests of criminal defendants and
juveniles in effectively confronting and rebutting such
allegations as part of their right to a fair trial.
In D.R., the defendant was charged with and convicted of
sexually abusing his granddaughter. Id. at 351. The State's
case was primarily based on the defendant's confession, which he
23 A-2238-14T3
later repudiated, and the out-of-court statement of the child
victim, who was age three at the time of trial and found
incompetent to testify. Id. at 353-55. The trial court
determined after a hearing that the child victim had not
adequately shown the ability at her age "to deal with the
concept of lying and telling the truth." Ibid. This court
found on appeal that the victim's out-of-court statements were
not admissible under any of the recognized hearsay exceptions.
See State v. D.R., 214 N.J. Super. 278, 287-88 (App. Div. 1986).
However, we also perceived the need for the adoption of a new
exception to the evidence rules allowing hearsay from child
abuse victims to be admitted in certain circumstances, where
there are "sufficient indicia of reliability to justify
admission[.]" Id. at 296-98.
On review, the Supreme Court reversed our decision and
remanded the case. D.R., supra, 109 N.J. at 352. While the
Court agreed with the need for a special hearsay exception for
child sexual abuse victims, it also found that "such a
fundamental change in the hearsay rule solely by judicial
decision is inconsistent with the procedure set forth in the
Evidence Act [of] 1960, that involves collaboration among all
three branches of government." Ibid. (citing N.J.S.A. 2A:84A-33
to -45).
24 A-2238-14T3
Having acknowledged the other branches' collaborative role
in adopting new evidence rules, the Court in D.R. went on to
discuss at length the policies favoring a "tender-years" hearsay
exception. The Court recognized that significant proof problems
can arise in child sexual abuse prosecutions, because "testimony
by the victim is often the indispensable element of the
prosecution's case." Id. at 358. The Court further recognized
that the courtroom setting is generally "intimidating to
children and often affects adversely their ability to testify
credibly." Id. at 360.
The Court noted that such evidentiary challenges "would be
alleviated by a modification of the hearsay rule that addresses
the admissibility of out-of-court [child] victim statements[.]"
Id. at 351. As the Court recognized, hearsay statements by
young sexual assault victims are often "highly credible because
of [their] content and the surrounding circumstances." Id. at
359. On the other hand, the Court likewise acknowledged "the
substantial constitutional interests of defendants in such
proceedings." Id. at 363.
Mindful of these competing interests of the State and of
defendants, the Court set forth in Appendix A to its opinion in
D.R. an amendment to the Rules of Evidence creating a tender-
years exception. Id. at 378. In shaping that new proposed
25 A-2238-14T3
rule, the Court considered recommendations on the subject
developed by the American Bar Association ("the ABA
Recommendations"), id. at 358-59, a host of law review articles
examining child sexual abuse prosecutions, id. at 359 n.3, and
statutes and case law from other jurisdictions addressing the
subject. Id. at 361-62.
Overall, the Court found "thoroughly persuasive" the
reasoning underlying the ABA Recommendations, the laws of
several other states, and the analysis of many commentators that
supported the adoption of a hearsay exception allowing the
admission, in circumstances where a probability of
trustworthiness is shown, of a young child's out-of-court
statement concerning acts of sexual abuse. Id. at 363. The
Court found such a new hearsay exception, when combined with
methods to allow child victims to testify at trials through
closed-circuit video, "will enable the judicial system to deal
more sensibly and effectively with the difficult problems of
proof inherent in child sex abuse prosecutions." Ibid.
The Incompetency Proviso
One of the key facets of the tender-years exception drafted
by the Court in D.R. is the proviso within the final portion of
N.J.R.E. 803(c)(27), the focus of this appeal. That proviso
recites that "no child whose statement is to be offered in
26 A-2238-14T3
evidence pursuant to this rule shall be disqualified to be a
witness in such proceeding by virtue of the requirements of
[N.J.R.E.] 601."6
The Court recommended this proviso after concluding, as a
matter of policy, that a competency disqualification should not
apply to the proposed hearsay exception. Id. at 369. In this
regard, the Court noted that, as a practical matter, "[a]
finding that a child-victim is incapable of understanding the
duty . . . to tell the truth, and thus incompetent, is difficult
to reconcile with a ruling that admits into evidence, insulated
from cross-examination, the out-of-court statements of the same
child made several months prior to trial." Id. at 370 (internal
citations omitted).
On the whole, the Court in D.R. was persuaded by both the
ABA Recommendations and the "growing trend among states . . .
6
N.J.R.E. 601 provides that:
Every person is competent to be a witness
unless (a) the judge finds that the proposed
witness is incapable of expression
concerning the matter so as to be understood
by the judge and jury either directly or
through interpretation, or (b) the proposed
witness is incapable of understanding the
duty of a witness to tell the truth, or (c)
except as otherwise provided by these rules
or by law.
[(Emphasis added).]
27 A-2238-14T3
[to] abolish[] the presumption that a child's incompetent and
[instead] leave[] to the jury the determination of the weight
and credibility of a child's testimony." Id. at 368. The Court
cited to leading evidence law scholars such as Professors
Wigmore and McCormick, whose treatises favor the admission of
such statements by child witnesses "for what it is worth,"
allowing the weight of their statements to be evaluated by the
trier of fact. Ibid.
Rather than require young victims of alleged sexual assault
to meet the general threshold for competency under N.J.R.E. 601,
the Court instead fashioned a tender-years exception that would
admit the hearsay declarations if they are specifically found by
the court to have sufficient indicia of probable
trustworthiness. Id. at 370.7 As the Court made clear, this
trustworthiness limitation is needed to assure "the equally
significant interests of the defendant, who seeks to exercise
7
This "indicia of trustworthiness" concept derives from the
United States Supreme Court's prior opinion in Idaho v. Wright,
497 U.S. 805, 815, 110 S. Ct. 3139, 3146, 111 L. Ed. 2d 638, 652
(1990). In 2004, in Crawford, supra, the Court repudiated Idaho
v. Wright and the related test of Ohio v. Roberts, 448 U.S. 56,
66-67, 100 S. Ct. 2531, 2539, 65 L. Ed. 2d 597, 607-08 (1980),
under the Confrontation Clause and replaced it with the present
"testimonial" standard. 541 U.S. at 51-53, 124 S. Ct. at 1364-
65, 158 L. Ed. 2d at 192-94. Even so, nothing prevents the
"indicia of trustworthiness" standard from continuing to be used
as a test of admissibility under state evidence rules, subject
to the constraints of the Confrontation Clause.
28 A-2238-14T3
the basic rights of confrontation and cross-examination so
essential to the jury's duty to assess the credibility of
witnesses." Id. at 369.
The Court did temper its approach in D.R. with a caveat
that, if the child of tender years is available to appear at
trial, he or she "should testify . . . in order to afford the
jury an opportunity to assess the child's credibility and to
afford the defendant the right of confrontation and cross-
examination." Id. at 371. In addition, the Court expressly
indicated that it was not considering "the recognition of any
other rights that may be asserted by a defendant in a sexual
abuse prosecution relating to a child victim's out-of-court
statements." Ibid. at n.10 (emphasis added).
Codification and Application of the Exception
Implementing the decision in D.R., the tender-years hearsay
exception was adopted in 1989, and numerically codified at that
time as Evidence Rule 63(33). See also Biunno & Guarini, New
Jersey Rules of Evidence: 1990 Edition 658-59. The language of
Rule 63(33), as enacted, mirrored the Court's proposed language.
See D.R., supra, 109 N.J. at 378.
As part of the comprehensive renumbering and revision of
the entire body of Evidence Rules in 1993, Rule 63(33) was
replaced by N.J.R.E. 803(c)(27). The operative terms of the
29 A-2238-14T3
rule remained substantially the same.8 See N.J.R.E. 803(c)(27);
see also Amendatory Report of the Supreme Court's Committee on
Evidence (May 17, 1993). The only other change in the Rule
occurred in 2005 to eliminate gender-based language. See
Biunno, supra, comment 1 on N.J.R.E. 803(c)(27).
Since the time of the adoption of the tender-years
exception, it has frequently been used in sex crime prosecutions
involving young child victims. Sometimes the courts have found
the child's hearsay admissible under the criteria of the Rule.
See, e.g., State v. T.E., 342 N.J. Super. 14, 36 (App. Div.),
certif. denied, 170 N.J. 86 (2001); State v. Delgado, 327 N.J.
Super. 137, 147-48 (App. Div. 2000). In other instances, our
courts have excluded the child's hearsay statement, or have
required a stronger foundation to justify its admission. See,
e.g., State v. D.G., 157 N.J. 112, 125-27 (1999) (remanding for
further proceedings as to a child's statements to a relative,
and also excluding the child's statements made during a
subsequent "re-interview"); State v. R.M., 245 N.J. Super. 504,
8
During the late 1990s, an amendment to N.J.R.E. 803(c)(27) was
proposed, but ultimately rejected, that would have changed the
age of the child from a bright-line cutoff of age twelve to a
child of "tender age" only. The failed amendment would have
also deemed out-of-court statements inadmissible if the child
was available to testify competently. See Report of the Supreme
Court Committee on the Rules of Evidence 19-22 (1998).
30 A-2238-14T3
516-18 (App. Div. 1991) (remanding for further hearing on the
trustworthiness of a child's statement that a trial court had
excluded under the Rule).
B.
Confrontation Clause Jurisprudence Since Crawford
The application of N.J.R.E. 803(c)(27) has been
substantially affected by the momentous decision of the United
States Supreme Court in Crawford, supra, and the series of post-
Crawford decisions construing the Confrontation Clause.9
The Confrontation Clause guarantees an accused the right
"to be confronted with the witnesses against him." U.S. Const.
amend. VI. The recognized objective of the Confrontation Clause
is "to ensure the reliability of the evidence against a criminal
defendant by subjecting it to rigorous testing in the context of
an adversary proceeding before the trier of fact." State v.
Castagna, 187 N.J. 293, 309 (2006) (quoting Maryland v. Craig,
497 U.S. 836, 845, 110 S. Ct. 3157, 3163, 111 L. Ed. 2d 666, 678
(1990)). This goal is ordinarily achieved by the opportunity to
9
To date, the cognate language of the Confrontation Clause
within the New Jersey Constitution, N.J. Const., art. I, ¶ 10,
has been construed coextensively with the federal counterpart.
See, e.g., State v. Roach, 219 N.J. 58, 74 (2014); State v.
Cabbell, 207 N.J. 311, 328 n.11 (2011). We therefore apply the
same analysis to both appellant's federal and state
confrontation arguments.
31 A-2238-14T3
cross-examine witnesses effectively, which is an "essential and
fundamental requirement" of a fair trial. Pointer v. Texas, 380
U.S. 400, 405, 85 S. Ct. 1065, 1068, 13 L. Ed. 2d 923, 927
(1965); see also Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.
Ct. 292, 294, 88 L. Ed. 2d 15, 19 (1985); see also State v.
Chun, 194 N.J. 54, 139 (2008).
It is well settled that juveniles charged with offenses
that would be crimes if they had been committed by adults, such
as appellant here, have equivalent rights to a fair trial. See,
e.g., In re Winship, 397 U.S. 358, 365, 90 S. Ct. 1068, 1073, 25
L. Ed. 2d 368, 376 (1970). Those rights have been held to
include the right of confrontation. See State ex rel. J.A., 195
N.J. 324, 329 (2008) (holding that the admission of testimonial
hearsay statements violated a juvenile's "Sixth Amendment right
to confront the witnesses against him").
In Crawford, supra, 541 U.S. at 59, 124 S. Ct. at 1369, 158
L. Ed. 2d at 197, the Supreme Court construed the historical
intent of the framers of the Confrontation Clause. Sharply
breaking with several of its prior precedents, the Court held
that the Clause bars the admission of "[t]estimonial statements
of witnesses absent from trial" admitted to prove the truth of
the matter asserted, except "where the declarant is unavailable,
32 A-2238-14T3
and only where the defendant has had a prior opportunity to
cross-examine." Ibid.
Since issuing its seminal opinion in Crawford in 2004, the
Court has further refined these concepts, including the meaning
of the pivotal notion of a "testimonial" statement. In Davis,
supra, 547 U.S. at 822, 126 S. Ct. at 2273-74, 165 L. Ed. 2d at
237, the Court delineated what has become known as the "primary
purpose" test for deciding whether or not a declarant's hearsay
statement is testimonial for purposes of Confrontation Clause
analysis. The eight-justice majority in Davis explained that
standard as follows:
Statements are nontestimonial when made in
the course of police interrogation under
circumstances objectively indicating that
the primary purpose of the interrogation is
to enable police assistance to meet an
ongoing emergency. They are testimonial when
the circumstances objectively indicate that
there is no such ongoing emergency, and that
the primary purpose of the interrogation is
to establish or prove past events
potentially relevant to later criminal
prosecution.
[Ibid. (emphasis added).]
Subsequently, in Michigan v. Bryant, 562 U.S. 344, 131 S.
Ct. 1143, 179 L. Ed. 2d 93 (2011), a divided Court further
illuminated the primary purpose test. The majority in Bryant,
except for Justice Thomas in concurrence, concluded that a
33 A-2238-14T3
mortally-wounded shooting victim's statements on the street to
police officers were non-testimonial because the primary purpose
of the conversation was to deal with the ongoing emergency of
the recent shooting and a missing firearm. Id., 562 U.S. at
370-78, 131 S. Ct. at 1162-67, 179 L. Ed. 2d at 104-09. The
dissenting Justices, meanwhile, concluded that the interview's
primary purpose was to generate evidence for a future
prosecution. Id., 562 U.S. at 380-96, 131 S. Ct. at 1168-77, 179
L. Ed. 2d at 120-31. The majority in Bryant did clarify that
the "primary purpose" of an officer's conversation with a
declarant is to be evaluated on an objective basis, rather than
turning upon the personal subjective intentions of either the
declarant or the police officers who interviewed him. Id., 562
U.S. at 370-71, 131 S. Ct. at 1162-63, 179 L. Ed. 2d at 114-16.
Most recently, in Ohio v. Clark, ___ U.S. ___, 135 S. Ct.
2173, 192 L. Ed. 2d 306 (2015), the Supreme Court classified as
non-testimonial various hearsay statements that a three-year-old
boy made to his preschool teachers after they had noticed his
eyes looked bloodshot. The boy stated to the teachers that the
defendant, his mother's boyfriend, had injured him.
With the exception of Justice Thomas, who concurred in the
result based on his own personal interpretation of the
Confrontation Clause, all other eight Justices in Ohio v. Clark
34 A-2238-14T3
concluded that the primary purpose of the child's conversation
with his teachers was not "to gather evidence for [the
defendant's] prosecution." Id., ___ U.S. at ___, 135 S. Ct. at
2181, 192 L. Ed. 2d at 316 (Alito, J., majority opinion). See
also id., ___ U.S. at ___, 135 S. Ct. at 2184, 192 L. Ed. 2d at
318-19 (Scalia, J., concurring) (noting that the primary purpose
of the child's conversation was "not to invoke the coercive
machinery of the State against [the defendant]"). The Court's
majority opinion underscored that the "first objective" of the
discussion was to protect the child, that it was "informal and
spontaneous," and that it took place "in the informal setting of
the preschool lunchroom and classroom." Id., ___ U.S. at ___,
135 S. Ct. at 2181, 192 L. Ed. 2d at 316. Consequently, the
child's hearsay statements to his teachers were constitutionally
admissible at trial against the defendant, even though the child
had been found incompetent to testify. Id., ___ U.S. at ___, 135
S. Ct. at 2178, 192 L. Ed. 2d at 312-13.
C.
Post-Crawford's Impact in New Jersey
The Supreme Court's jurisprudence in Crawford and its
progeny has had a substantial impact upon criminal and juvenile
prosecutions in our State. See, e.g., State v. Michaels, 219
N.J. 1, 15-32 (2014) (tracing what our Supreme Court termed the
35 A-2238-14T3
"turmoil over confrontation rights" spawned by Crawford and the
cases applying it).
For example, in J.A., supra, 195 N.J. at 348-51, our
Supreme Court reversed a juvenile's delinquency adjudication for
robbery because the trial court had improperly admitted and
relied upon an unavailable eyewitness's hearsay statement to the
police about observing the robbery and the robber's flight.
Applying the "primary purpose" test of Davis, the Court ruled
that there was no "ongoing emergency" to justify the hearsay's
admission, and that the primary purpose of the eyewitness's
statements to the police was to establish or prove past events
germane to a potential future prosecution. Id. at 350.
By contrast, in State v. Buda, 195 N.J. 278 (2008), a case
factually similar to what later arose in Ohio v. Clark, a 4-3
majority of our Court held that a battered child's statements to
his mother in the car, and later during his hospital admission
to a Division of Youth and Family Services ("DYFS") worker,
detailing physical abuse by the defendant, were not testimonial.
Hence, the admission of that hearsay did not violate the
defendant's confrontation rights.
In Buda, the Court majority ruled that the primary purpose
of the hearsay conversations was not to gather evidence for a
future prosecution. Id. at 304-08. With respect to the DYFS
36 A-2238-14T3
worker's interview, the majority was persuaded that the worker
was merely "gathering data in order to assure a child's future
well-being." Id. at 308.10 However, the majority in Buda
cautioned that a child's statements about a defendant's wrongful
acts might be testimonial if the DYFS worker functioned during
such an interview "predominantly as an agent/proxy or an
operative for law enforcement in the collection of evidence of
past crimes for use in a later criminal prosecution." Id. at
307.
The Cross-Examination Right
Our State Supreme Court has also carefully applied a key
corollary principle of Crawford, which instructs that the
Confrontation Clause does not prohibit the use of a declarant's
prior testimonial statements, so long as "the [declarant]
appears for cross-examination at trial[.]" Crawford, supra, 541
U.S. at 59 n.9, 124 S. Ct. at 1369 n.9, 158 L. Ed. 2d at 198
n.9. The Court has construed that appearance requirement to
connote a right to cross-examine the declarant.
10
Justice Albin and two other justices dissented in Buda as to
the child's hearsay statements to the DYFS worker, finding that
the dual primary purposes of that interview included an
objective "to elicit information about a possible crime." Id.
at 318 (Albin, J., dissenting).
37 A-2238-14T3
For instance, in State v. Nyhammer, 197 N.J. 383 (2009),
the Court upheld the trial court's admission of a videotaped
police interview of a nine-year-old child who accused the
defendant, her uncle, of sexual assault. The Court readily
found that, based on Crawford, "there is no question that [the
child's] videotape statement – given to a law enforcement
officer investigating a crime – constitute[d] testimonial
hearsay for Sixth Amendment purposes." Id. at 412. However,
the Court also found that the defendant in Nyhammer had not been
denied his rights of confrontation because his counsel had
received the opportunity to attempt to cross-examine the child
when she took the stand at trial. Id. at 412-13.
Even though the child victim in Nyhammer had been unable on
direct examination by the prosecutor to repeat the "core
accusations" detailing the defendant's assaultive conduct, the
Court found that defendant's counsel had made a tactical
decision to refrain from cross-examining the child about those
allegations. Id. at 413-14. The Court reasoned that "[h]aving
chosen that strategic course . . . defendant cannot now claim
that he was denied the opportunity for cross-examination." Id.
at 414.
In contrast to the situation in Nyhammer, our Court in
Cabbell, supra, 207 N.J. at 311, reversed the defendants'
38 A-2238-14T3
convictions in a homicide case, in which the trial court had
admitted hearsay statements against them made by an eyewitness
when he was interviewed by the police. As in Nyhammer, the
Court readily determined that a right of confrontation applied.
In fact, the State did not dispute in Cabbell that one of the
witness's statements during the police interview was
"testimonial." Id. at 330. The sole Sixth Amendment issue in
Cabbell was whether the defendants' confrontation rights had
been honored because their counsel had been provided with a
chance to cross-examine the eyewitness at a Rule 104 preliminary
hearing before the trial judge. Ibid.
The Court majority ruled in Cabbell that defense counsel's
cross-examination of the declarant at the hearing before trial
was insufficient to comply with the Constitution, and that the
defendants had been deprived of their rights of confrontation
because the witness was never produced before the jury, despite
defense counsel's request that she so appear at that later
proceeding. Id. at 331. The trial judge had denied the request
because the witness had been resistant to testifying. Id. at
322. The majority stressed that a trial court "has no authority
to deny defendants their constitutional right of confrontation
merely because it believes that cross-examination will be of
little use." Id. at 333.
39 A-2238-14T3
On the other hand, the majority in Cabbell further noted
that a defendant has no carte blanche right to cross-examine a
witness "in whatever way, and to whatever extent, the defense
might wish." Ibid. (quoting Fensterer, supra, 474 U.S. at 20,
106 S. Ct. at 294, 88 L. Ed. 2d at 19). Instead, a defendant
only must be given the "opportunity to engage in 'otherwise
appropriate cross-examination,'" with no guarantee that the
cross-examination will be effective. Ibid. (quoting Delaware v.
Van Arsdall, 475 U.S. 673, 680, 106 S. Ct. 1431, 1436, 89 L. Ed.
2d 674, 684 (1986).
Crawford Applied to the Tender-Years Rule
The Court instructively applied these Confrontation Clause
principles in a tender-years context in State v. Coder, 198 N.J.
451 (2009). The defendant in that case was convicted of
committing sexual assault of a three-year-old child. Id. at
460. The assault occurred while the defendant and the victim
were in the basement of her apartment building, along with the
child's eleven-year-old friend. Id. at 456. The friend who
witnessed the assault immediately ran upstairs and notified the
victim's mother. Id. at 457. The mother then spoke with her
frightened daughter, who told her that the defendant had touched
her vagina and buttocks. Ibid. The State moved before trial to
admit the daughter's hearsay statement to her mother, relying
40 A-2238-14T3
upon N.J.R.E. 803(c)(27). Id. at 458. At an ensuing Rule 104
hearing, the daughter, then age four, was unable to recall or
speak about the incident. Ibid. The daughter did not testify
at the defendant's trial, but her hearsay statement was admitted
over objection. Id. at 459.
The Supreme Court held in Coder that, because of her
inability to render a courtroom account of the incident for the
jury, the child victim was "unavailable" to testify. Id. at
467. Hence, in order to admit the victim's hearsay, the State
was required to present under N.J.R.E. 803(c)(27)(c)(ii) other
"admissible evidence corroborating the act of sexual abuse[.]"
Id. at 466-68. Because the older child who had witnessed the
incident provided such corroboration, the Court found the
victim's hearsay admissible under the tender-years exception.
Id. at 468.
Notably, the Court found no violation of the defendant's
right of confrontation under the Crawford doctrine in Coder
because the victim's statements to her mother were not
testimonial. Id. at 469. Finding the situation comparable to
the child victim's statement to his mother in Buda, supra, 195
N.J. at 304, the Court observed that the daughter's account to
her mother about what had happened to her a few minutes earlier
"lack[ed] any indicia that [it] resulted from law enforcement
41 A-2238-14T3
efforts 'to establish or prove past events potentially relevant
to later criminal prosecution.'" Ibid. (emphasis added) (citing
Davis, supra, 547 U.S. at 822, 126 S. Ct. at 2274, 161 L. Ed. 2d
at 237).
A year later, the Court again applied these post-Crawford
principles to the tender-years exception in State v. P.S., 202
N.J. 232, 249 (2010). There, the trial court admitted into
evidence under N.J.R.E. 803(c)(27) hearsay statements that an
eleven-year-old child had made to a child interview specialist
in a county prosecutor's office. The child told the interviewer
that the defendant had sexually assaulted her on three occasions
several years earlier. Id. at 241. Because the video equipment
used to record that interview had malfunctioned, the State
instead presented the contents of the child's statements through
the trial testimony of the interviewer. Id. at 245. The
Supreme Court in P.S. agreed that the child's statements, as
recollected by the interviewer and as buttressed by her written
report, supported the trial court's finding that the statements
were sufficiently trustworthy to satisfy the requirements of
N.J.R.E. 803(c)(27). Id. at 254.
P.S. then addressed the constitutional issues of
confrontation, applying Crawford's "new rule," which the Court
described as having "entirely changed the Confrontation Clause
42 A-2238-14T3
landscape." Id. at 249. Although its discussion of the issue
was not extensive, the Court declared that the admissibility of
a child's tender-years hearsay statement, if it is testimonial,
must now be conditioned upon three requirements: (1) the
State's prior notice to defense counsel; (2) a pretrial judicial
finding of trustworthiness; and, most importantly for our
present purposes, (3) a defendant's "opportunity to cross-
examine the child at trial[.]" Ibid. (citations omitted).
That third requirement specified in P.S. negates the
State's option under N.J.R.E. 803(c)(27)(c)(ii) to avoid
producing a child who has made testimonial statements for cross-
examination at trial by offering "admissible evidence
corroborating the act of sexual abuse." P.S. signifies that the
State in such testimonial situations can no longer
constitutionally rely upon subsection (ii) of N.J.R.E.
803(c)(27)(c). Instead, to comply with Crawford, the State must
resort to subsection (i), which requires the child to "testif[y]
at the proceeding."11
11
See also Biunno, supra, comment 6 on N.J.R.E. 803(c)(27)
(observing that P.S. resolved the "considerable doubt" about the
constitutionality of subsection (c)(ii) in the wake of Crawford,
now requiring that since "a testimonial statement of an absent
witness is subject to the Confrontation Clause," to admit such
testimonial statement by a child victim, the child "must be
available to testify at trial").
43 A-2238-14T3
P.S. did not address, however, the specific issue of
confrontation presented here, i.e. whether the tender-years
hearsay statements of a child who has been found incompetent to
testify as a witness nonetheless can be admitted against an
accused over objection.
III.
A.
We now consider the heart of the matter. Specifically, we
address whether appellant's constitutional rights of
confrontation were violated by the trial court admitting, over
objection,12 the incriminating statements of J.C., a
12
Although it was not contended in the State's responding brief
submitted by the prosecutor, the Attorney General as amicus
argues that we should not reach the Confrontation Clause issue
because appellant allegedly waived the issue by not expressly
invoking the Clause in his arguments to the trial court. We
decline to adopt that waiver argument for several reasons.
First, an amicus on appeal generally should not present new
issues that were not raised by the parties. State v. Lazo, 209
N.J. 9, 25 (2012). Second, although appellant's trial counsel
did not assert the words "Confrontation Clause" or "Crawford" in
her motion briefs and arguments, there is no doubt that she
objected to the admission of J.C.'s out-of-court statements, and
repeatedly complained about her inability to confront and cross-
examine J.C. effectively because of the child's incompetency.
The clear thrust of trial counsel's continuing objection
implicated a claimed denial of a right of confrontation. Cf.
State v. Bass, 224 N.J. 285, 312 (2016). Third, it is unlikely
that the trial record here would have been materially different
had defense counsel explicitly argued that J.C.'s hearsay
statements were "testimonial" under Crawford. In fact, as we
discuss, infra, the prosecutor specifically asked the detective
(continued)
44 A-2238-14T3
developmentally-disabled child whom the trial court twice found
incompetent to testify. For the reasons that follow, we agree
that the trial court deprived appellant of those vital rights in
certain respects.
Although courts generally prefer to steer away from
constitutional questions if their resolution is not essential to
a case, the confrontation issues posed by appellant here are
appropriate for decision. For one thing, appellant concedes in
his brief that the hearsay statements of J.C. were admissible as
a matter of state evidence law under N.J.R.E. 803(c)(27).13
(continued)
on redirect examination what his purpose was in interviewing
J.C. Fourth, appellant's trial counsel could not have been
expected to anticipate the United States Supreme Court's opinion
in Ohio v. Clark, the Court's most recent clarification of
Confrontation Clause doctrine. Fifth, the present appeal
provides a well-briefed suitable opportunity to resolve an
important unsettled question of constitutional significance
about the validity of the incompetency proviso in N.J.R.E.
803(c)(27).
13
The Gibbons Fellowship does not join in that concession and
instead argues that, as a matter of statutory interpretation,
the incompetency proviso in N.J.R.E. 803(c)(27)(c) only applies
to subsection (ii) of the Rule and not to subsection (i) when
the child victim testifies in court. We need not reach that
argument raised by solely this amicus, for the same reasons that
we need not reach the waiver argument raised for the first time
by the amicus Attorney General. See Lazo, supra, 209 N.J. at
25. In any event, we note in passing that the Gibbons
Fellowship's suggested construction of the proviso appears to
clash with the overall design and objectives of the evidence
rule set forth by the Court in D.R., supra. The argument for
(continued)
45 A-2238-14T3
Appellant instead focuses his arguments for exclusion on
constitutional grounds of the denial of confrontation and due
process. Moreover, the Court has made very clear that the
admissibility of hearsay under state evidence rules, even if
they are firmly rooted in the law and in practice, can be
trumped by Confrontation Clause principles. See Crawford,
supra, 541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203.
In appraising the constitutionality of the tender-years
exception's incompetency proviso, we remain mindful of the
general presumption of constitutionality that applies to all
legislation, including our evidence rules. "A statute is
presumed to be constitutional and will not be declared void
unless it is clearly repugnant to the Constitution." Newark
Superior Officers Ass'n v. City of Newark, 98 N.J. 212, 222
(1985); see also State v. Buckner, 437 N.J. Super. 8, 24 (App.
Div. 2014), aff'd, 223 N.J. 1 (2015). For the reasons we now
discuss, we conclude that appellant has met his heavy burden to
prove such constitutional infirmity of the incompetency proviso,
(continued)
limiting the proviso to subsection (ii) also does not mesh with
the punctuation used within the rule, as the proviso appears
immediately after both subsections (i) and (ii) and is preceded
by a semicolon rather than by a comma. Further, the unpublished
opinion cited by the Gibbons Fellowship as support for its
construction is not binding. R. 1:36-3.
46 A-2238-14T3
at least when the proviso is applied to a child's hearsay
statements made in a testimonial setting.
B.
The record in this case strongly supports appellant's
contention that J.C.'s statements during his recorded interview
with Detective Abromaitis were, as a matter of constitutional
law, testimonial in nature. The manifest, and perhaps singular,
"primary purpose" of the interview session was to gather facts
about a past sexual offense that could be used in a future
prosecution.
When specifically asked by the prosecutor on redirect
examination what was the purpose of the interview, the detective
responded, "We were informed that [J.C.] had made a disclosure
that . . . a boy named [A.] touched his penis on the school bus
on the way home from school." Although the State now suggests
that perhaps the police interview was primarily conducted to
assure that A.R. would not ride the bus again with J.C. or other
potential child victims, that hypothesized alternative purpose
notably was not mentioned in the detective's response. Indeed,
the school district presumably was able to keep A.R. away from
other children on its own without being commanded to do so by
law enforcement.
47 A-2238-14T3
The detective's role as an interviewer at the prosecutor's
office, some eighteen days after the incident, is fundamentally
different from the DYFS worker who responded to the report of
abuse at the hospital in Buda. The context here is instead akin
to the law enforcement interviews of the children in Nyhammer,
Cabbell, and P.S., all of which were deemed testimonial in
nature.
We are cognizant that the majority opinion of Justice Alito
in Ohio v. Clark, supra, as well as the concurring opinion of
Justice Scalia in that case, discuss historical sources
concerning the common law practice of admitting hearsay
statements by young children in criminal cases. Those
historical sources cited by the Justices indicate that, prior to
the 1789 adoption of the United States Constitution, courts
often allowed hearsay statements of young child victims to be
admitted at criminal trials, despite the fact that such children
were not generally considered "competent" to testify because of
their age. Id., ___ U.S. at ___, 135 S. Ct. at 2182, 192 L. Ed.
2d at 316-17.
We appreciate this historical context, which Justice Alito
characterized as support that "fortifie[d]" the Court's
conclusion that the child's statements in Ohio v. Clark were not
testimonial. Id., ___ U.S. at ___, 135 S. Ct. at 2181-82, 192
48 A-2238-14T3
L. Ed. 2d at 316. Notably, however, the majority in Ohio v.
Clark stopped short of declaring that statements by young
children can never be testimonial. Nor did the Court hold that
the statements of such young children to law enforcement
officials, in particular, cannot have the objective primary
purpose of aiding a future prosecution.
In fact, the majority opinion in Ohio v. Clark repeatedly
contrasted the child's statements to his teachers in that case
with statements made to law enforcement personnel. Id., ___
U.S. at ___, 135 S. Ct. at 2182, 192 L. Ed. 2d at 317. Justice
Alito specifically noted that the teachers' interactions with
the child were "nothing like the formalized station-house
questioning in Crawford or the police interrogation and battery
affidavit in Hammon[ v. Indiana.]" Id., ___ U.S. at ___, 135 S.
Ct. at 2181, 192 L. Ed. 2d at 316.14 Justice Alito further
elaborated on this point, contrasting the child's statements to
his teachers with statements that are given by children to an
investigatory police officer:
Finally, although we decline to adopt a rule
that statements to individuals who are not
14
Hammon is a consolidated case with Davis, in which the Court
held that the police interrogation of a victim of domestic
violence, after responding to the victim's residence and after
the emergency had subsided, was a testimonial context. Id., 547
U.S. at 829-31, 126 S. Ct. at 2278, 165 L. Ed. 2d at 241-42.
49 A-2238-14T3
law enforcement officers are categorically
outside the Sixth Amendment, the fact that
[the victim] was speaking to his teachers
remains highly relevant. Courts must
evaluate challenged statements in context,
and part of that context is the questioner's
identity. Statements made to someone who is
not principally charged with uncovering and
prosecuting criminal behavior are
significantly less likely to be testimonial
that statements given to law enforcement
officers. It is common sense that the
relationship between a student and his
teacher is very different from that between
a citizen and the police. We do not ignore
that reality. In light of these
circumstances, the Sixth Amendment did not
prohibit the State from introducing [the
victim]'s statements at trial.
[Id., ___ U.S. at ___, 135 S. Ct. at 2182,
192 L. Ed. 2d at 317 (emphasis added)
(internal citations omitted).]
Similarly, Justice Scalia's concurrence in Ohio v. Clark,
joined by Justice Ginsberg, pointed out that "[t]he statements
here [by the child to his teachers] would not be testimonial
under the usual test applicable to internal police
interrogation." Id., ___ U.S. at ___, 135 S. Ct. at 2183-84,
192 L. Ed. 2d at 318 (Scalia, J., concurring) (emphasis added).15
15
We need not consider Justice Thomas's separate opinion, and
his individualized analysis of whether the child's out-of-court
declarations were provided in a context of sufficient
"solemnity" to qualify as testimonial. Id., ___ U.S. at ___,
135 S. Ct. at 2186, 192 L. Ed. 2d at 321 (Thomas, J.,
concurring).
50 A-2238-14T3
The concurrence also underscored that the child was being "asked
questions by his teachers at school," a place "far from the
surroundings adequate to impress upon a declarant the importance
of what he is testifying to." Id., ___ U.S. at ___, 135 S. Ct.
at 2184, 192 L. Ed. 2d at 319 (Scalia, J., concurring) (emphasis
added).
Here, in contrast with the situation in Ohio v. Clark, the
interview room at the prosecutor's office where J.C. was
questioned by the detective—although structured in an atmosphere
intended to be friendly to a child—objectively was a setting
created with the obvious goal of eliciting, recording, and
preserving a statement that might be used at a future trial, if
J.C. repeated his earlier incriminating accusations during the
session.16 The use of anatomical dolls, diagrams, and video
recording for the detective's questioning all are indicative of
such a primary purpose.
16
The Supreme Court of Iowa has likewise recently noted the
comments expressed within the Court's opinions in Ohio v. Clark
signal a constitutional distinction between statements made by
young children during police interviews, and statements made to
other persons not acting in a law enforcement capacity. See In
the Interest of J.C., 877 N.W.2d 447 (Iowa 2016). Notably, the
Iowa Justices in J.C. unanimously agreed that hearsay statements
made by a young child to a "forensic interviewer" during a
recorded interview at the behest of law enforcement officials
comprised "testimonial" statements that triggered a right of
confrontation. Id. at 458.
51 A-2238-14T3
Our conclusion treating J.C.'s recorded statements to
Detective Abromaitis as testimonial is consistent with the
instructive Confrontation Clause analysis performed by the
Indiana Court of Appeals in Purvis v. State, 829 N.E.2d 572
(Ind. Ct. App. 2005). The defendant in Purvis was convicted of
child molestation, based in part upon incriminating statements
made by the ten-year-old victim. Id. at 575. The victim first
made the allegations to his mother and her boyfriend, and then
repeated the allegations to a police officer less than two hours
later. Id. at 576-77.
Applying the "primary purpose" test, the Indiana appellate
court in Purvis held that the child's statements to his mother
and boyfriend were not testimonial because they were not
elicited "for the purpose of preparing to prosecute anyone but
rather to gain information about what happened, find out if [the
child] was harmed, and remedy any harm that had befallen him."
Id. at 579. By contrast, the child's later statements to the
police officer were deemed by the Indiana court to be
testimonial, even though the police interview was not an
"interrogation" in the formal sense of that term. Id. at 580.
The court in Purvis found it significant that, at the time
of the officer's questioning, he knew of the child's allegations
against the defendant and knew that he was investigating a child
52 A-2238-14T3
molestation. Ibid. The court also underscored that the officer
had "repeated his questioning to [the child] multiple times for
the purpose of obtaining evidence to be used to prosecute [the
defendant]." Ibid. Given this context, Purvis concluded that
"[t]here can be no question that the information [the child]
provided to [the officer] could be used in any potential
prosecution, and a primary purpose of the questioning was to
obtain information that could be used in [such] a prosecution."
Ibid. The court was therefore satisfied that, under the
"specific circumstances" presented, the child's interview with
the police officer was testimonial, and thus triggered the
defendant's rights of confrontation. Ibid.
Other state courts have reached similar conclusions. See,
e.g. Bobadilla v. Carlson, 570 F.Supp. 2d 1098, 1111 (D. Minn.
2008) (finding that "[t]o hold that a young child's statement
during a police interrogation is 'nontestimonial' because of the
age of the declarant would require carving out an exception to
Crawford's repeated and categorical assertion that statements
taken in the course of police interrogations are
'testimonial'"); State v. Grace, 111 P.3d 28, 38 (Haw. Ct. App.
2005) (similarly finding a police interview of a child to be
"testimonial"); State v. Snowden, 867 A.2d 314 (Md. Ct. App.
2005) (same); State v. Mack, 101 P.3d 349 (Or. 2004) (same).
53 A-2238-14T3
Notably, other than pointing to the historical discussion in
Ohio v. Clark, neither the prosecutor nor the Attorney General's
brief have cited to us a reported case from another jurisdiction
that has treated a recorded interview conducted by law
enforcement officials with a child victim of alleged sexual
assault as non-testimonial.
We thus hold that the statements made here by J.C. to
Detective Abromaitis were testimonial. The hearsay statements
could not be admitted against appellant at trial without his
counsel having a constitutionally-sufficient opportunity for
cross-examination. The same is true of J.C.'s testimony at the
trial itself, which is obviously, and literally by definition,
testimonial.
We note, however, that appellant has not challenged the
admissibility of J.C.'s alleged statements to his mother's
cousin G.K. Those hearsay statements to a relative, assuming
they occurred as described, are fundamentally different in
character, akin to the non-testimonial statements that the child
victims made to their mothers in Buda and Coder.
IV.
As the last step of our analysis, we must consider whether
appellant's trial counsel was afforded a meaningful and adequate
opportunity at trial to cross-examine J.C. about his testimonial
54 A-2238-14T3
accusations. We conclude that appellant's counsel was
effectively deprived of that important right, given the trial
court's twice-repeated findings of the child's incompetency.
As our Supreme Court recognized in Nyhammer and Cabbell,
the right of cross-examination entails more than the physical
presence of a witness in a courtroom. If a hearsay declarant
has previously communicated out-of-court testimonial statements,
those statements are offered for their truth by a prosecutor
against an accused at trial, and the declarant cannot speak or
refuses to speak on the witness stand, then the right of
confrontation cannot be fulfilled. A defense attorney must be
afforded a fair opportunity to question the declarant and
attempt to impeach his or her demeanor, memory, perception, and
overall credibility.
These fundamental objectives cannot be achieved by a
defense lawyer posing questions to an incompetent witness such
as J.C., who has been judicially found incapable of reliably
distinguishing between truth and fiction, and who does not
understand the paramount need to tell the truth about matters of
grave importance in a prosecution. See, e.g., State v. Bueso,
225 N.J. 193, 207 (2016) (explaining the competency standards
for testimony by young children). Indeed, the Indiana court in
Purvis correctly followed such logic in excluding the child's
55 A-2238-14T3
statements to the police officer because the child was found
incompetent to testify, being "unable to understand the nature
and obligation of an oath." Purvis, supra, 829 N.E.2d at 581.17
We adopt the same conclusion here. Although appellant's
trial counsel did attempt to question J.C. on cross about the
underlying events, the incompetent child's testimony, such as it
was, leaves us with no assurance that his answers on the witness
stand had any dependable probative value. The child's responses
to counsel could not be relied upon, any more than his
assertions to the judge that a dinosaur could be a chicken, that
a red toy was green, and that he lived with cartoon characters
and dragons.
This is not a situation like Nyhammer where defense counsel
tactically refrained from confronting a reluctant child witness.
Here, the child was not reluctant, but instead seemingly willing
to agree with a number of preposterous facts suggested to him on
17
We agree with Purvis that a child can be deemed incompetent to
testify in court for purposes of state evidence rules, but
nevertheless be considered, for purposes of the Confrontation
Clause, to have uttered hearsay statements to a law enforcement
official in an objectively "testimonial" setting. We reject the
Attorney General's argument that the two concepts are
necessarily incompatible. As used by the Court in Crawford and
its progeny, the objective concept of "testimonial" is
essentially situational, whereas the notion of an individual's
competency to testify in court is essentially an assessment of
the personal characteristics of that individual. See N.J.R.E.
601.
56 A-2238-14T3
the witness stand. At the very least, he was repeatedly
confused. We are loathe to allow appellant's finding of the
commission of a serious sexual offense, with its potential long-
term consequences, based on this incompetent child's testimonial
assertions.
In reaching this conclusion, we do not second-guess the
trial court's perception that J.C.'s specific assertions about
the alleged incident on the bus had the ring of truth. Even so,
we cannot with confidence conclude that those assertions, even
if they are accepted at face value to be trustworthy, were
meaningfully subjected to the important customary rigors of
cross-examination. In fact, it may have been unseemly and
perhaps even harmful to the child for defense counsel to have
undertaken a pointed cross-examination designed to emphasize the
child's already-exhibited failings as a reliable communicator in
the witness box. The judge's repeated findings of J.C.'s
incompetency, which the State does not challenge, are amply
supported. Indeed, his incompetency is clearly apparent from
the record.
We therefore conclude that appellant in this case was
denied a fair opportunity to confront and cross-examine J.C.
regarding previous statements he made in a testimonial setting.
57 A-2238-14T3
Hence, A.R.'s delinquency adjudication must be reconsidered
because of the court's reliance on those testimonial assertions.
V.
The foregoing analysis leaves us to address appellant's
final point that the evidence was insufficient here to support a
finding of delinquency beyond a reasonable doubt. In
considering that argument, we are obligated to view the
competent evidence on the record indulgently, giving all
favorable inferences to the State. See State v. Elders, 192
N.J. 224, 243-44 (2007) (citing State v. Johnson, 42 N.J. 146,
164 (1964)).
Since we have excluded both J.C.'s courtroom testimony and
his recorded police interview, the State's remaining evidence
consists of: (1) J.C.'s non-testimonial spontaneous utterance to
G.K. at the bus stop; (2) G.K.'s observation of appellant
holding J.C.'s hand after they got off the bus; and (3) G.K.'s
in-court identification of appellant as the child that she saw
with J.C.
The State's case is bolstered, at least to some limited
extent, by the alleged inconsistency in the testimony of the bus
driver and the bus aide about exactly where the aide had been
seated on the trip and whether or not she had been in a position
to observe any interaction on the bus between appellant and J.C.
58 A-2238-14T3
Conversely, the State's case is weakened by the lack of any
eyewitnesses on the bus who saw the alleged touching, or who
heard the alleged laughter of children after it occurred.
We are reluctant to cast aside the trial judge's first-hand
assessment that what J.C. allegedly said to G.K. was credible.
Indeed, as we have noted, appellant does not contest the judge's
finding of trustworthiness regarding that particular statement
for purposes of admissibility under the hearsay exception. Nor
are we willing to discard the judge's observation that G.K.
herself was "believable." To the contrary, we generally owe the
trier of fact considerable deference on such credibility
findings. See, e.g., State v. Locurto, 157 N.J. 463, 471
(citing Johnson, supra, 42 N.J. at 161-62).
Our ruling that J.C.'s incompetence deprived appellant of
the chance to meaningfully cross-examine him in court about his
testimonial accounts does not necessarily compel a finding that
J.C.'s separate, non-testimonial spontaneous utterance to his
mother's cousin was incredible. Indeed, the young child's
excited utterances in Buda, which our Supreme Court deemed non-
testimonial, were treated as competent proof, despite the
child's non-appearance for cross-examination at trial. Supra,
195 N.J. at 308. The same was true of the child's non-
testimonial hearsay in Coder, supra, 198 N.J. at 469.
59 A-2238-14T3
Our Supreme Court has yet to hold that a person's
incompetency to testify in a courtroom signifies that his or her
admissible out-of-court assertions must be per se disregarded.
Moreover, the Supreme Court in D.R. specifically rejected ABA
Recommendation 4.3, which had suggested the inclusion of a
corroboration requirement when a child of tender years does not
testify. See D.R., supra, 109 N.J. at 365.
Because this case was tried as a non-jury juvenile matter,
we have a distinct procedural advantage of an opportunity to
remand this difficult decision about the weight of the remaining
evidence to the trial judge in the first instance. We shall
take advantage of that opportunity.
On remand, the judge shall reconsider the case – this time
ignoring the child's recorded interview and in-court statements
– and assess only the strength of the State's remaining proofs,
bearing, of course, in mind appellant's competing arguments for
acquittal. If, on further reflection, the trial judge finds
that the remaining proofs are inadequate to meet the State's
burden, he shall enter a judgment of acquittal. Conversely, if
the judge remains persuaded that the burden was met, he shall
state his reasons as fully as practicable and re-issue a final
60 A-2238-14T3
judgment of delinquency, which appellant is free to have
reviewed in a new appeal.18
Reversed in part as to the evidential admission of the
child's testimonial statements, and remanded in part. We do not
retain jurisdiction. The remand shall be completed within
ninety days. In the meantime, appellant's delinquency
adjudication and any outstanding portions of his sentencing
disposition shall remain in force, subject to the decision on
remand.
18
In light of the possibility of appellant's acquittal by the
trial court on remand, we need not address at this time his
contentions that the original delinquency finding violated his
due process rights, aside from his right of confrontation.
61 A-2238-14T3