State v. J.R. (076694)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

State v. J.R. (A-50-15) (076694)

Argued October 13, 2016 -- Decided January 9, 2017

Patterson, J., writing for a unanimous Court.

In this appeal, the Court considers whether the State’s expert’s testimony concerning Child Sexual Abuse
Accommodation Syndrome (CSAAS) offered against J.R. conformed to the limitations placed on CSAAS evidence
in prior holdings by this Court and whether, if it did exceed the bounds of proper expert opinion on that subject, the
admission of that testimony was harmless error.

In May 2010, when N.R. was twelve years old, N.R.’s mother learned that N.R. had allegedly been sexually
abused on several occasions over the previous two years by N.R.’s father’s stepfather, J.R., and that N.R. had told
her brothers of the abuse but instructed them not to tell anyone. The mother immediately reported the alleged abuse,
and a criminal investigation was initiated. Interviewed by a detective specializing in sexual offenses against
children, N.R. detailed several episodes of sexual abuse by J.R. and indicated that J.R. had instructed her not to tell
anyone. J.R. was arrested and interviewed. He was charged with first-degree aggravated sexual assault, second-
degree endangering the welfare of a child, second-degree sexual assault, and fourth-degree child abuse.

Prior to J.R.’s jury trial, the court denied a defense motion to exclude the testimony of the State’s proposed
expert witness on CSAAS, Dr. Lynn Taska, but noted that her testimony should be limited in accordance with the
Court’s opinion in State v. W.B., 205 N.J. 588 (2011). Dr. Taska told the jury that she knew nothing about the
specific defendant, victim, or family involved in this case. Her testimony did not address any aspect of the facts of
this case. Instead, she described the five “areas” of behavior attributed to child victims that comprise CSAAS.

N.R., fourteen years old at the time of trial, recounted the incidents that she had alleged in her police
interview. She described for the jury the location of each offense, the manner in which defendant allegedly coerced
her, the nature of defendant’s sexual contact with her, and the aftermath of each incident. She confirmed that she
had told only her brothers about J.R.’s alleged sexual abuse, and instructed them not to tell anyone. N.R.’s parents
and one of her brothers also testified on behalf of the State, and their testimony supported N.R.’s account. J.R.
called several witnesses including N.R.’s oldest brother. J.R. also testified on his own behalf.

The jury convicted J.R. of all charges. He was sentenced to eighteen-years’ imprisonment. J.R. appealed,
challenging the admissibility of Dr. Taska’s testimony and raising several other claims of error. The Appellate
Division found that the expert had exceeded the bounds of permissible CSAAS testimony and reversed defendant’s
conviction. The panel declined to fully address the remaining issues raised by J.R.

The Court granted the State’s petition for certification, limited to the issue of whether the State’s expert
testimony exceeded the permissible scope of admissible CSAAS testimony. 224 N.J. 243 (2016).

HELD: Although Dr. Taska’s testimony was in part proper CSAAS opinion evidence, it exceeded the parameters
imposed on CSAAS testimony. In that respect, the admission of her testimony constituted error. However, the trial
court’s error with respect to Dr. Taska was not clearly capable of producing an unjust result, and does not warrant a new
trial. Accordingly, the Court reverses the judgment of the Appellate Division panel, and remands to the Appellate
Division for consideration of the issues raised by defendant that the panel did not reach.

1. N.J.R.E. 702 governs the admissibility of expert testimony, such as CSAAS testimony, which can help “to dispel
[preconceptions] jurors may have concerning the likelihood of the child’s truthfulness as a result of her delay in having
disclosed the abuse or sought help.” State v. P.H., 178 N.J. 378, 395 (2004). CSAAS testimony must not be admitted
for purposes of demonstrating that the child was—or was not—subjected to sexual abuse. (pp. 17-21)

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2. In State v. J.Q., 130 N.J. 554, 578 (1993), the Court held that a CSAAS expert should not opine on the question
whether the child victims had been sexually abused. That basic rule was refined and expanded in State v. R.B., 183
N.J. 308, 326 (2005), where the CSAAS expert told the jury that two of the behaviors that had been exhibited by the
child are “among the range of behaviors consistent with [CSAAS].” The Court warned that CSAAS testimony
should be used only “to explain . . . why it is not uncommon for sexually abused children, without reference to the
child victim in that case, to delay reporting their abuse and why many children, again without reference to the child
victim in that case, recant allegations of abuse and deny the events at issue.” Id. at 329. The Court further
constrained CSAAS testimony in W.B., supra, 205 N.J. at 613-14, when it declared testimony about the “statistical
credibility of victim-witnesses” inadmissible and commented that “[a]ny CSAAS testimony beyond its permissible,
limited scope cannot be tolerated.” The Court has also underscored the critical importance of the trial court’s
limiting instructions to the jury as to CSAAS testimony. (pp. 21-24)

3. Here, in most respects, Dr. Taska’s testimony was consistent with the Court’s prior holdings. However, in her
discussion of the third aspect of CSAAS, entrapment and accommodation, Dr. Taska described to the jury a range of
behavior expansive enough to encompass the behavior of almost any child, and suggested that adults should believe
children who manifest any of the disparate types of conduct that she described. Describing an array of behaviors as
characteristic of children who are confirmed victims of sexual abuse may improperly suggest to the jury that any
child who exhibits the behavior described has been the victim of sexual abuse. Further, Dr. Taska briefly
commented on the Pennsylvania State University child sexual abuse case to illustrate that media coverage of child
sexual abuse typically results in a sharp increase in reporting. To avoid confusing a jury, a CSAAS expert should
not cite another case—particularly a publicized incident that resulted in a conviction—in his or her testimony.
Finally, Dr. Taska was called as the State’s first witness, which is incompatible with the exclusively rehabilitative
role of CSAAS expert testimony. Dr. Taska’s testimony exceeded the parameters imposed on CSAAS testimony,
and admitting her testimony was error. (pp. 24-29)

4. An error will not lead to reversal unless it is “clearly capable of producing an unjust result.” R. 2:10-2.
Accordingly, the Court considers the portion of Dr. Taska’s testimony that exceeded the bounds of CSAAS evidence
in the broader context of J.R.’s trial. (pp. 29-30)

5. Dr. Taska’s discussion of the range of behavior that child victims of sexual abuse may exhibit was brief.
Moreover, the trial court delivered a strong limiting instruction, which tracked the CSAAS Model Charge and
conformed to this Court’s admonitions in P.H. and W.B., immediately before Dr. Taska’s testimony, and again in its
final charge to the jury. Significantly, the critical witness for the State was not Dr. Taska, but N.R. herself.
Although there were no witnesses to the alleged abuse, N.R.’s account was corroborated in important respects by
members of her family, including the brother called as a defense witness. In his testimony, J.R. vehemently denied
N.R.’s allegations of sexual abuse but confirmed N.R.’s account in material respects. Moreover, his credibility was
substantially challenged on cross-examination through inconsistencies between his trial testimony and statements he
made in his police interview, as well as self-incriminating comments he had made during the interview. (pp. 30-33)

6. In light of the testimony of N.R., her family members, and J.R. himself, there is no basis to conclude that Dr.
Taska’s brief venture beyond the bounds of proper CSAAS testimony changed the result of J.R.’s trial. The trial
court’s error with respect to Dr. Taska does not warrant a new trial. (pp. 33-34)

7. The Court declines to consider the argument raised by the Office of the Public Defender, as amicus curiae, that
the Court should reject CSAAS evidence in its entirety on the ground that it is unreliable and therefore inadmissible
under N.J.R.E. 702, because this argument was not asserted by a party. The Court notes that the proper procedure to
present evidence that CSAAS has been rejected by experts on child sexual abuse is a challenge of the admissibility
of the evidence before the trial court in an appropriate case. (pp 34-35)

The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the Appellate
Division so that it may consider the issues that it did not reach in its prior review of this case.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in JUSTICE PATTERSON’s opinion.

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 SUPREME COURT OF NEW JERSEY
A-50 September Term 2015
076694

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

J.R.,

Defendant-Respondent.

Argued October 13, 2016 – Decided January 9, 2017

On certification to the Superior Court,
Appellate Division.

John R. Mulkeen, Assistant Prosecutor,
argued the cause for appellant (Esther
Suarez, Hudson County Prosecutor, attorney).

Jeffrey G. Garrigan argued the cause for
respondent (Cammarata, Nulty & Garrigan,
attorneys).

Sarah E. Ross, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (Christopher S.
Porrino, Attorney General, attorney).

Joshua D. Sanders, Assistant Deputy Public
Defender, argued the cause for amicus curiae
Office of the Public Defender (Joseph E.
Krakora, Public Defender, attorney).

JUSTICE PATTERSON delivered the opinion of the Court.

In this case, we consider a criminal defendant’s challenge

to the State’s expert’s testimony concerning Child Sexual Abuse

Accommodation Syndrome (CSAAS). CSAAS evidence is presented to

1
explain why some child victims of sexual abuse delay reporting

sexual offenses to adults, refrain entirely from reporting the

abuse, or retract their allegations prior to trial. Such

evidence is not admissible to prove that a particular child was

the victim of a sexual offense. CSAAS evidence must be

carefully circumscribed so that it does not improperly bolster

the testimony of the alleged victim, mislead the jury, or

prejudice the defendant’s right to a fair trial.

This appeal arises from defendant J.R.’s conviction for

several sexual offenses against his step-granddaughter, who was

between ten and twelve years old when the alleged offenses took

place. The child did not disclose defendant’s conduct to any

adult; she told only her brothers, one of whom revealed the

allegations to their mother almost two years after the abuse

began.

At defendant’s trial, the State proffered the testimony of

a CSAAS expert to opine that child victims of sexual offenses

sometimes delay reporting sexual abuse and to explain other

aspects of victims’ behavior. The trial court denied

defendant’s motion to bar the testimony. Testifying as the

State’s first witness, the expert properly refrained from

discussing the specific victim in this case. She told the jury,

however, that studies of confirmed child victims of sexual abuse

have reported a broad array of behaviors, ranging from a

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cooperative demeanor and academic success to disruptive and

sadistic conduct, including in that broad description behaviors

exhibited by the alleged victim in this case. The expert also

invoked a highly publicized child sexual abuse scandal in her

testimony.

The State’s witnesses included the victim and members of

her family. Defendant testified on his own behalf. He was

convicted of all charges.

Defendant appealed his conviction, raising the CSAAS

expert’s opinion as his primary issue on appeal. An Appellate

Division panel reversed his conviction on the ground that the

CSAAS expert exceeded the bounds of proper expert opinion on

that subject. The panel remanded for a new trial. We granted

the State’s petition for certification, limited to the question

of whether the trial court properly limited the testimony of the

CSAAS expert.

We concur with the Appellate Division panel that the

expert’s testimony did not entirely conform to the limitations

placed on CSAAS evidence in prior holdings by this Court.

However, we conclude that the error was harmless. In her

compelling testimony, the child victim not only described the

incidents of abuse, but explained her failure to report her

allegations to anyone but her brothers. As to the critical

question of defendant’s access to the child on multiple

3
occasions with no one else present, the victim’s account was

substantially supported by her parents and brothers, and by the

admissions of defendant himself. Moreover, defendant’s

credibility was impeached in important respects when he

testified. Viewed in the context of all of the trial evidence

heard by the jury, the CSAAS expert’s improper statements were

not clearly capable of producing an unjust result and do not

warrant a new trial.

Accordingly, we reverse the judgment of the Appellate

Division panel, and remand to the Appellate Division for

consideration of the issues raised by defendant that the panel

did not reach.

I.

We derive our summary of the facts from the trial record.

In the spring of 2008, N.R. was a ten-year-old fourth

grader. She lived with her mother, C.S., and eleven-year-old

brother, A.R. Her father, G.R., lived in a different

municipality with his twelve-year-old son, G.L.R. C.S. and G.R.

closely cooperated in the parenting of their children. N.R. and

A.R. spent every other weekend with their father and older

brother.

Defendant is G.R.’s stepfather; he married G.R.’s mother

when G.R. was a teenager. Defendant maintained a close

relationship with his stepson and step-grandchildren. Defendant

4
and his wife lived in a series of residences that were either in

the same building as G.R.’s home, or adjacent to it. The three

children were fond of their step-grandfather, whom they called

“Grandpa”; he organized camping trips for the entire family and

outings for the children.

During his children’s weekend visits, G.R. sometimes was

away from home for work or other reasons. Often, the children

stayed at the home of defendant and his wife. On some of the

occasions when the children were present, defendant’s wife was

not at home. At times, the two boys left defendant’s apartment

to play outside, but N.R. was not permitted to accompany them.

The children would occasionally stay overnight, either with

defendant and his wife or with defendant alone.

According to N.R. and her brothers, during a ride in the

back of defendant’s truck in either 2008 or 2009, N.R. told A.R.

and G.L.R. that “Grandpa” was “touching” her. She was adamant

that her brothers refrain from telling anyone what she had

confided in them. According to the three children, A.R. and

G.L.R. counseled N.R. to make up excuses to avoid being with

defendant. However, N.R. and her brother A.R. continued to

visit their father on their regular schedule and spend time with

defendant as they did before N.R. disclosed the alleged abuse to

her brothers; her parents did not notice a change in her

demeanor when in defendant’s presence. According to her

5
parents, N.R. sometimes isolated herself in her room and she

struggled academically during that time period.1

In early 2010, shortly after N.R.’s twelfth birthday, her

parents briefly reconciled. C.S. told N.R. that she and G.R.

were going out on a date, and that defendant would babysit for

her, without her brothers present. According to both parents,

N.R. refused to stay with defendant. C.S. recalled, however,

that she and G.R. compelled N.R. to go to defendant’s home.

According to her mother and brother, when N.R. returned from

that visit, she went straight to her room. Her brother A.R.

testified that she later told him that “Grandpa” had “touched

her again.”

N.R.’s allegations were finally disclosed to her parents on

May 11, 2010. That morning, as N.R. and A.R. waited at a

relative’s home for their school bus, A.R. sent his mother a

text message stating that his sister “is having sex with

Grandpa.” C.S. immediately contacted the children’s father and

their school. Within hours, the parents met with their

children, school officials, and law enforcement. The New Jersey

Division of Child Protection and Permanency (Division) was

contacted, and the County Prosecutor’s Office initiated a

criminal investigation.

1 By the time the case was tried several years later, N.R. was
an honor student.
6
 Interviewed by a detective specializing in sexual offenses

against children, N.R. recounted several incidents. She said

that defendant first assaulted her when she hid from her

brothers in defendant’s apartment during a game of hide-and-

seek. N.R. claimed that defendant shut the door, blocking it

with a fan, kissed her, undressed her, touched her chest,

digitally penetrated her, and touched her vagina with his penis,

without engaging in intercourse. She detailed several

subsequent episodes of sexual abuse by defendant, involving

digital penetration, genital-oral contact, and contact between

defendant’s penis and her vagina. According to N.R., these

incidents occurred in defendant’s apartment, in a second

apartment to which he moved, on a cot located in his work truck,

in a second truck in which he stored materials, and on a meat

cutting board in the back of a restaurant that he owned.

When the investigator asked during the interview what

defendant had said to her after one of the incidents, N.R. was

silent for two minutes. She then wrote on an easel that

defendant had instructed her not to tell anyone, and that he had

asked her whether she “liked it.”

Defendant was arrested. He waived his rights under Miranda

v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694

(1966), and was interviewed by detectives. Defendant denied all

of N.R.’s allegations. He stated that N.R. had never stayed

7
overnight in his home and insisted that only the two boys had

stayed overnight in his apartment. After police officers told

defendant that they had spoken with witnesses, defendant pressed

the detectives on whether the witnesses had said that they saw

him “doing something to her.” He commented, “[s]econd of all

nobody was there besides [N.R.] with me alone.”

II.

Defendant was charged with first-degree aggravated sexual

assault, N.J.S.A. 2C:14-2(a); second-degree endangering the

welfare of a child, N.J.S.A. 2C:24-4(a); second-degree sexual

assault, N.J.S.A. 2C:14-2(b); and fourth-degree child abuse,

N.J.S.A. 9:6-1 and 9:6-3.

Prior to defendant’s trial, the trial court denied a

defense motion to exclude the testimony of the State’s proposed

expert witness on CSAAS, Dr. Lynn Taska.2 In light of the

State’s assurance that the expert would not be questioned about

N.R.’s individual characteristics or asked to opine whether

defendant had sexually abused N.R., the court held that the

testimony was admissible. It noted, however, that the expert’s

testimony should be limited in accordance with this Court’s

opinion in State v. W.B., 205 N.J. 588 (2011). The trial court

2 It does not appear that either party requested that Dr. Taska
testify at a pretrial hearing pursuant to N.J.R.E. 104, and no
pretrial evidentiary hearing was held.
8
advised counsel that the model charge on CSAAS testimony, Model

Jury Charge (Criminal), “Child Sexual Abuse Accommodation

Syndrome” (May 2011) (CSAAS Model Charge), would be used to

guide the jury to properly interpret Dr. Taska’s testimony.

Defendant was tried before a jury over nine trial days.

Prior to the testimony of Dr. Taska, who was the State’s first

witness, the trial court instructed the jury with respect to the

limitations of CSAAS, based on the CSAAS Model Charge.

After she was qualified as an expert witness on the subject

of CSAAS, Dr. Taska told the jury that she knew nothing about

the specific defendant, victim, or family involved in this case.

Her testimony did not address any aspect of the facts of this

case. Instead, the expert generally described the five “areas”

of behavior attributed to child victims that comprise CSAAS:

“secrecy,” “helplessness,” “entrapment and accommodation,”

“delayed and unconvincing disclosure,” and “retraction and

recantation.”

Explaining the first component of CSAAS, secrecy, Dr. Taska

described offenders’ use of threats and coercion to maintain a

victim’s silence, and opined that child victims of abuse often

deny abuse notwithstanding the presence of medical evidence or

the statement of a third party who has witnessed the offense.

She noted, “when there’s a lot of attention, like recently with

this Penn State case and Jerry Sandusky, there’s an increase in

9
disclosure. Here in New Jersey, there’s many more reports to

[the Division] lately as a result of that case.”

Dr. Taska testified that the second area, helplessness,

denotes the tendency among child victims to “play dead” or

“freeze” when confronted by a sexual abuser.

Addressing the third area, entrapment and accommodation,

Dr. Taska described a range of behaviors that are sometimes

exhibited in child victims of sexual abuse. Although Dr. Taska

stated that she was unaware of the facts of this case, the broad

panoply of potential reactions that she described included

compliant behavior and occasional self-isolation, which N.R.

exhibited during the period of the alleged abuse.

Dr. Taska stated that the fourth area, delayed and

unconvincing disclosure, describes the behavior of children who

delay reporting abuse for years, who disclose sexual abuse by an

indirect manner such as in a diary, or who never disclose at

all, due to fear of an investigation, a trial, or “get[ting]

someone in trouble.”

Finally, Dr. Taska discussed the fifth component, the

“occasional” incidence of retraction and recantation among child

victims.3

3 In addition to Dr. Taska, the State presented the testimony of
a second expert, a pediatrician whose physical examination of
N.R. revealed no physical findings confirming sexual abuse.
Defendant’s challenge to the expert testimony as containing
10
 N.R., fourteen years old at the time of trial, testified on

behalf of the State. At length and in detail, she recounted the

incidents that she had alleged in her police interview. She

described for the jury the location of each offense, the manner

in which defendant allegedly coerced her, the nature of

defendant’s sexual contact with her, and the aftermath of each

incident. In addition to the incidents she had described in the

interview, N.R., while testifying, recalled one instance in

which defendant “tried to put [his penis] inside [of her] where

the tampon goes,” but she was in pain and resisted. She said

that he apologized and assured her that he would never do that

again.

N.R. stated that she had not been given access to the

record of her interview in preparation for her testimony. She

testified that despite the abuse, she continued with her

schedule of visits to her father and his family, and acted

normally, “because I was scared” and “because I didn’t want them

to know.” She confirmed that she had told only her brothers

about defendant’s alleged sexual abuse, and instructed them not

to tell anyone.

inadmissible hearsay was briefly addressed by the Appellate
Division; that challenge is outside the scope of our limited
grant of certification, and we do not address it.
11
 N.R.’s account was supported by the testimony of her

parents, who described her behavior during the relevant period

and her refusal to be left with defendant on the occasion in

early 2010. N.R.’s testimony was also buttressed by her brother

A.R., who provided “fresh complaint” testimony about her

disclosure of the alleged abuse to him and their brother G.L.R.

Defendant called as witnesses a detective and a hospital

employee who had interviewed N.R., two character witnesses, and

his sister, who stated that N.R. behaved normally in defendant’s

presence and was affectionate with defendant. He also presented

the testimony of N.R.’s oldest brother, G.L.R., who stated that

there was material with sexual content in his father’s apartment

but confirmed that N.R. was not given access to it. G.L.R.

substantially corroborated A.R.’s fresh-complaint testimony

about N.R.’s reporting of the abuse to her brothers. He told

the jury that “once in a while” N.R. was left alone with

defendant.

Defendant testified on his own behalf. Contrary to his

statement to police, defendant conceded that N.R. and her

brothers had stayed overnight in his apartment on many

occasions. He admitted that, on at least one overnight visit,

N.R. slept with him in his bed when his wife was not at home; he

said that he kept the bedroom door open on that occasion and

12
that when he awoke, N.R.’s brothers were asleep on the floor

next to defendant’s bed.

In its final jury charge, the trial court instructed the

jury, in accordance with the CSAAS Model Charge, that Dr.

Taska’s CSAAS testimony could be considered only for the limited

purpose of helping to explain why a sexually abused child may

keep silent and delay reporting, and not as proof that abuse

either occurred or did not occur in this case.

The jury convicted defendant of all charges. The trial

court denied defendant’s motion for a new trial. After merger

of two of the offenses, the trial court sentenced defendant to

an eighteen-year term of incarceration, subject to an eighty-

five percent parole disqualifier under N.J.S.A. 2C:43-7.2, for

first-degree aggravated sexual assault, and a concurrent eight-

year term for second-degree sexual assault.

Defendant appealed his conviction and sentence. He

asserted that the trial court had committed three errors with

respect to Dr. Taska’s CSAAS testimony: admitting opinion

evidence that was irrelevant and therefore inadmissible;

permitting Dr. Taska to exceed the bounds of CSAAS testimony;

and giving the jury inadequate limiting instructions regarding

CSAAS. Defendant also contended that the trial court committed

other errors in evidentiary rulings, permitted prosecutorial

misconduct, and improperly denied defendant’s motion for a

13
mistrial. In addition, defendant claimed that his counsel

provided ineffective assistance at trial, and that his sentence

was excessive.

The Appellate Division reversed defendant’s conviction. It

found that the trial court had properly permitted Dr. Taska to

provide expert opinion about CSAAS. The panel found, however,

that the expert testimony exceeded the boundaries of permissible

CSAAS testimony by describing the wide range of behavior

exhibited by child victims of sexual abuse, and by suggesting

that children who engage in such behavior should be believed by

adults when they report abuse. It concluded that the error was

not harmless, because the jury could have inferred from Dr.

Taska’s testimony that N.R.’s poor grades and isolation in her

room signaled that she had been subjected to sexual abuse. The

panel specifically identified Dr. Taska’s remark about “the Penn

State case and Jerry Sandusky” as an improper reference that

should be avoided on retrial. The panel briefly commented on

several of the remaining issues raised by defendant to provide

guidance for retrial but declined to fully address them.

We granted the State’s petition for certification, limited

to the issue of whether the State’s expert testimony exceeded

the permissible scope of admissible CSAAS testimony. 224 N.J.

243 (2016). We denied defendant’s cross-petition, in which he

sought to preserve for review the issues not reached by the

14
Appellate Division. 224 N.J. 245 (2016). We granted amicus

curiae status to the Attorney General and the Office of the

Public Defender (OPD).

III.

The State argues that the Appellate Division panel

improperly restricted CSAAS expert testimony in child abuse

cases. The State contends that Dr. Taska’s general discussion

of a range of behavior manifested in child victims, without

reference to N.R. and her family, was appropriate, and the fact

that N.R. exhibited some aspects of the behaviors described by

the expert does not render the opinion improper. It contests

the Appellate Division’s conclusion that any error in the

admission of CSAAS testimony was harmful. The State notes that

N.R.’s account of the alleged abuse did not change throughout

the investigation and trial, and that defendant’s testimony was

riddled with inconsistencies, particularly with respect to the

important issue of his access to the child.

Defendant counters that, in a series of decisions, this

Court has unequivocally limited the scope of CSAAS testimony to

a single purpose: to explain to the jury, without reference to

the child victim in the case, why it is not uncommon for

sexually abused children to delay reporting the abuse, and why

some child victims recant their allegations. He contends that

Dr. Taska’s testimony ventured beyond the boundaries drawn by

15
the Court because it encouraged the jury to accept the evidence

of behavior associated with sexual abuse as substantive evidence

of defendant’s guilt and suggested that N.R.’s testimony should

be believed. Defendant asserts that the trial court’s admission

of the expert evidence was not harmless because he did not

confess that he committed sexual abuse and because the State’s

case relied almost entirely on N.R.’s testimony.

The Attorney General argues that CSAAS testimony serves a

key forensic function: it is rehabilitative evidence that

explains why many children delay reporting sexual abuse, or

recant allegations that they previously made. The Attorney

General asserts that CSAAS evidence is properly presented to

dispel jurors’ preconceived notions that a child’s delayed

reporting suggests that his or her allegations are fabricated.

The Attorney General notes that Dr. Taska did not attempt to

“connect the dots” between her general testimony and defendant’s

case, and contends that her testimony was accordingly proper.

Raising a contention not made by defendant, the OPD urges

the Court to reject CSAAS expert testimony in its entirety by

holding that it is inadmissible, in all prosecutions for child

sexual abuse, under N.J.R.E. 702. The OPD contends that any

legitimate purpose for CSAAS evidence would be served by a jury

instruction explaining to jurors why child victims of sexual

abuse may delay reporting the abuse.

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 IV.

A.

The sole issue before the Court -- whether the trial court

properly limited the State’s expert evidence regarding CSAAS --

is governed by N.J.R.E. 702. That Rule permits a qualified

expert to offer an opinion “[i]f scientific, technical, or other

specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue.”

N.J.R.E. 702. For an opinion to be admissible under N.J.R.E.

702, the expert must utilize a technique or analysis with “a

sufficient scientific basis to produce uniform and reasonably

reliable results so as to contribute materially to the

ascertainment of the truth.” State v. Kelly, 97 N.J. 178, 210

(1984); see Hisenaj v. Kuehner, 194 N.J. 6, 17 (2008); State v.

Torres, 183 N.J. 554, 568 (2005). The party seeking to present

expert testimony must demonstrate that it “would ‘enhance the

knowledge and understanding of lay jurors with respect to other

testimony of a special nature normally outside of the usual lay

sphere.’” Kelly, supra, 97 N.J. at 209 (quoting State v.

Griffin, 120 N.J. Super. 13, 20 (App. Div.), certif. denied, 62

N.J. 73 (1972)).

If a party challenges an expert opinion pursuant to

N.J.R.E. 702, the “trial court should conduct a hearing under

[N.J.R.E. 104] concerning the admissibility of the proposed

17
expert testimony.” Torres, supra, 183 N.J. at 567 (citing State

v. Harvey, 151 N.J. 117, 167 (1997), cert. denied, 528 U.S.

1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000)). In that

setting, the proponent of the expert testimony may demonstrate

that the expert’s methodology meets the benchmark of N.J.R.E.

702, and the opposing party may challenge the reliability of the

expert’s opinion. A hearing pursuant to N.J.R.E. 104 “is a

favored means to create a record for appellate review of a

disputed decision.” Ibid.

Although “the trial court is in a better position to shape

the record and make credibility determinations,” an “appellate

court need not be as deferential to the trial court’s ruling on

the admissibility of expert scientific evidence as it should be

with the admissibility of other forms of evidence.” Ibid.

(citing Harvey, supra, 151 N.J. at 167).

In accordance with the N.J.R.E. 702 framework and the

applicable standard of appellate review, this Court has

addressed the role of CSAAS testimony in several decisions. As

the Court has noted, CSAAS was first discussed in a 1983 study

by Roland C. Summit, M.D., undertaken “to provide a vehicle for

a more sensitive, more therapeutic response to legitimate

victims of child sexual abuse and to invite more active, more

effective clinical advocacy for the child within the family and

within the systems of child protection and criminal justice.”

18
State v. J.Q., 130 N.J. 554, 567-68 (1993) (quoting Roland C.

Summit, The Child Sexual Abuse Accommodation Syndrome, 7 Child

Abuse & Neglect 177, 179-80 (1983) (Summit Study)); see State v.

P.H., 178 N.J. 378, 395-96 (2004). In the Summit Study,

researchers identified five categories of behavior that

countered “the most common assumptions of adults.” J.Q., supra,

130 N.J. at 568 (quoting Summit Study at 181). Those categories

include two preconditions to abuse, secrecy -- often enforced by

the abuser’s threats -- and helplessness, and three “sequential

contingencies” of the abuse: entrapment and accommodation;

delayed, conflicted, and unconvincing disclosure; and

retraction. Id. at 568-71 (citing Summit Study at 181-88).

As this Court has observed,

the behavioral studies of CSAAS are designed
not to provide certain evidence of guilt or
innocence but rather to insure that all
agencies, including the clinician, the
offender, the family, and the criminal justice
system, offer “the child a right to parity
with adults in the struggle for credibility
and advocacy.”

[Id. at 571 (quoting Summit Study at 191).]

In the courtroom, CSAAS testimony “helps to dispel

preconceived, but not necessarily valid, conceptions jurors may

have concerning the likelihood of the child’s truthfulness as a

result of her delay in having disclosed the abuse or sought

help.” P.H., supra, 178 N.J. at 395.

19
 The Court has repeatedly emphasized that CSAAS is not a

diagnostic tool as used by experts in psychiatry or psychology,

and that in the setting of a criminal trial, CSAAS must not be

admitted to demonstrate that the child was -- or was not --

subjected to sexual abuse. W.B., supra, 205 N.J. at 610; State

v. Schnabel, 196 N.J. 116, 133-34 (2008); State v. R.B., 183

N.J. 308, 327 (2005); P.H., supra, 178 N.J. at 395-96; J.Q.,

supra, 130 N.J. at 578-82. Instead, “CSAAS expert testimony may

serve a ‘useful forensic function’ when used in a rehabilitative

manner to explain why many sexually abused children delay in

reporting their abuse, or later recant allegations of abuse.”

P.H., supra, 178 N.J. at 395 (quoting J.Q., supra, 130 N.J. at

579).

Given an expert witness’s singular status in the courtroom,

“[t]he uncritical acceptance of expert testimony can becloud the

issues.” State v. R.W., 104 N.J. 14, 30 (1986). The trial

court is charged to ensure that the expert does not usurp the

jury’s function to determine guilt or innocence, or opine on the

credibility of witnesses. State v. McLean, 205 N.J. 438, 453-57

(2011); see State v. Vandeweaghe, 177 N.J. 229, 239 (2003);

State v. Jamerson, 153 N.J. 318, 340-41 (1998). The trial

court’s careful oversight is particularly important when the

State proffers an expert on CSAAS in a prosecution for the

sexual abuse of a child. The line between the discrete

20
rehabilitative purpose of CSAAS testimony and an improper

inference as to the defendant’s guilt is fine indeed; as we have

noted, courts defining the scope of this evidence are on

“clearly hazardous ground.” R.B., supra, 183 N.J. at 328

(discussing J.Q., supra, 130 N.J. 554).

Accordingly, our case law has substantially restricted the

State’s use of CSAAS testimony. In J.Q., supra, this Court held

that a CSAAS expert should not opine on the question whether the

child victims had been sexually abused. 130 N.J. at 578. That

basic rule was refined and expanded in R.B. There, Dr. Taska,

testifying for the State as a CSAAS expert, was not asked to

testify about whether the defendant was guilty or innocent, or

to opine on the truth of the alleged victim’s allegations.

R.B., supra, 183 N.J. at 327-28. Instead, without expressly

connecting her testimony to the child victim’s conduct, the

expert referred to two of the behaviors that had been exhibited

by the child -- the torture of animals and the setting of fires

-- and told the jury that both categories of conduct are “among

the range of behaviors consistent with [CSAAS].” Id. at 326.

Because the expert’s comment on the behaviors associated

with CSAAS “was fleeting, was made without connecting those

elements to [the victim], and was made in the context of

substantial other evidence of guilt,” the Court did not reverse

the defendant’s conviction in R.B. Id. at 327, 334. The Court

21
observed, however, that “the CSAAS expert should not describe

the attributes exhibited as part of that syndrome due to the

risk that the jury may track the attributes of the syndrome to

the particular child in the case.” Id. at 327. It noted that

the testimony at issue in R.B. came “perilously close to the

setting we condemned in [J.Q.], where . . . the CSAAS expert

testified not only to ‘the various aspects of CSAAS’ but also

‘related them to the behavior she had observed in [the child

victims].’” Ibid. (second alteration in original) (quoting

J.Q., supra, 130 N.J. at 559). The Court warned that,

[i]n the future, prosecutors and trial courts
must insure that the scope of a CSAAS expert’s
testimony is carefully circumscribed and does
not exceed its proper bounds: solely to
explain to the jury why it is not uncommon for
sexually abused children, without reference to
the child victim in that case, to delay
reporting their abuse and why many children,
again without reference to the child victim in
that case, recant allegations of abuse and
deny the events at issue.

[Id. at 329.]

The Court further constrained CSAAS testimony in W.B.

There, the State’s redirect examinations of its CSAAS witness

focused on the statistical improbability that a child who

accuses an adult of sexual abuse is lying. W.B., supra, 205

N.J. at 612-13. The Court declared the CSAAS expert testimony

about the “statistical credibility of victim-witnesses”

inadmissible. Id. at 613. It observed that statistical

22
evidence “quantifying the number or percentage of abuse victims

who lie deprives the jury of its right and duty” to make an

individualized determination as to the credibility of the

victim. Id. at 613-14. The Court commented that “[a]ny CSAAS

testimony beyond its permissible, limited scope cannot be

tolerated.” Id. at 614.

As it has set narrow parameters for CSAAS testimony, the

Court has also underscored the critical importance of the trial

court’s limiting instructions to the jury. As directed in P.H.,

supra, 178 N.J. at 399-400, and W.B., supra, 205 N.J. at 621,

the CSAAS model jury charge instructs jurors that they may or

may not conclude that the child victim’s testimony is untruthful

because of his or her silence or delayed disclosure. CSAAS

Model Charge.4 Consistent with the Court’s decisions in both

4 In P.H., supra, the Court suggested prefatory language for the
Model Charge, and referred the matter to the Model Charge
Committee “for their consideration and suggestions for
refinement.” 178 N.J. at 400. Following the suggestion of the
Court in P.H., the Model Charge on CSAAS was amended to include
an opening paragraph to explain that a juror may not
“automatically” conclude that a child witness is untruthful
because the child remained silent or took time to come
forward. The Model Charge was considered again in W.B. There,
the Court directed the Model Charge Committee to consider
whether the word “automatically,” as used in the phrase, “you
may not automatically conclude that [complaining witness’s]
testimony is untruthful based only on [his or her]
silence/delayed disclosure,” should be deleted as urged by the
defendant in that case, and replaced by the language, “[you] may
or may not conclude that” the testimony is untruthful, or “words
of like effect.” W.B., supra, 205 N.J. at 621-22. Following
W.B., the Model Charge was amended to read in part, “[y]ou may
23
cases, the Model Charge advises jurors that CSAAS is “not a

diagnostic device and cannot determine whether or not abuse

occurred,” or that the alleged victim “was or was not truthful.”

Ibid. It directs jurors to consider CSAAS expert testimony only

for a limited purpose: to “explain [] certain behavior of an

alleged victim of child sexual abuse.” Ibid.

This Court’s prior jurisprudence regarding CSAAS thus

recognizes the expert testimony’s potential value to

rehabilitate a child witness, whose silence in the face of

sexual abuse might otherwise be viewed as a signal that the

abuse never occurred. Our case law acknowledges, however, the

significant risk that jurors may misconstrue the expert’s

observations to be proof of the child’s credibility and the

defendant’s guilt; it thus imposes strict limits on the

evidence. The Court’s decisions urge trial courts and counsel

to proceed with caution and care in the presentation of CSAAS

testimony before a jury. See W.B., supra, 205 N.J. at 612-13;

R.B., supra, 183 N.J. at 327-29; J.Q., supra, 130 N.J. at 577-

81.

B.

or may not conclude that [the child witness’] testimony is
untruthful based only on his/her [silence/delayed
disclosure].” CSAAS Model Charge. That is the form of the
charge given in the present case.
24
 We apply the governing standard set forth in the Court’s

prior jurisprudence to the disputed testimony in this case.

In most respects, Dr. Taska’s testimony was consistent with

this Court’s prior holdings. Dr. Taska was not asked to opine

on the guilt or innocence of the defendant and did not do so.

See R.B., supra, 183 N.J. at 327-28 (noting that “vice

identified in [J.Q.] was the expert’s ultimate conclusion” as to

defendant’s guilt); J.Q., supra, 130 N.J. at 578 (same). The

expert testified that she was uninformed about the specific

defendant, victim, and family at issue in this case, consistent

with the Court’s admonitions in R.B., supra, 183 N.J. at 326-29,

and W.B., supra, 205 N.J. at 614-15. She did not present

statistical data on the percentage of children who fabricate

allegations of sexual assault, as disapproved in W.B., supra,

205 N.J. at 612-14.

Dr. Taska’s testimony in this case, however, did not

entirely conform to the limited role for CSAAS opinion evidence

that our case law has authorized. In her discussion of the

third aspect of CSAAS, entrapment and accommodation, Dr. Taska

told the jury that child victims of sexual abuse manifest a

broad spectrum of behavior as a result of the abuse:

One of the ways kids survive is by trying to
control the environment. There are many kids
who adapt by being really good -- really
other-oriented. They try to please this other

25
 person in order to control whether or not
things are going to happen.

And these kids are very obedient. They look
very responsible, well-adjusted, they do well
in school in general, and this leads people
then to not believe them if they tell, but
this is a normal thing that happens in real
cases of sexual abuse. And that -- so that’s
one form of adaptation.

We have everything in between, all the way
down to the kids who’s acting out, telling
lies, setting fires, torturing small animals,
acting out from him or herself sexually.
Those kids, when they tell, also are not
believed, but their behavior is often an
acting out way of coping with what’s happening
in their lives.

In between that we have everything. You know,
a kid who is self-injuring, a kid who’s using
drugs and alcohol, a kid who’s use --
disassociating.

In one important respect, Dr. Taska’s comments were less

prejudicial than the testimony that this Court disapproved in

R.B.: in defendant’s trial, Dr. Taska did not focus on specific

idiosyncratic behaviors that had been observed in the child

victim at issue, as she did in R.B. Cf. R.B., supra, 183 N.J.

at 327. Here, however, Dr. Taska described to the jury a

complete range of behavior that might appear in children --

including well-adjusted, considerate and successful children,

destructive and sadistic children, and everything “[i]n

between.” She then attributed this array of potential conduct -

- expansive enough to encompass the behavior of almost any child

26
-- to victims of child sexual assault, and suggested that adults

should believe children who manifest any of the disparate types

of conduct that she described. That testimony raises the

concern repeatedly expressed by the Court: that a CSAAS expert,

expressly or implicitly, might relate the behavior observed in

some child sexual assault victims to the demeanor and conduct of

the victim in a given case. Clearly, in discussing entrapment

and accommodation, an expert may provide a definition of that

component of CSAAS. The expert, however, should avoid

describing an array of behaviors as characteristic of children

who are confirmed victims of child sexual abuse; such testimony

may improperly suggest to the jury that any child who exhibits

the behavior described has been the victim of sexual abuse.

Further, in the context of her discussion of the secrecy

component of CSAAS, Dr. Taska briefly commented on the

Pennsylvania State University child sexual abuse case, in which

a member of the University’s football coaching staff was

convicted of sexual assault, among other offenses, against

children. The expert used that highly-publicized case to

illustrate that media coverage of child sexual abuse typically

results in a sharp increase in reporting. To avoid confusing a

jury, a CSAAS expert should not cite another case --

particularly a publicized incident that resulted in a conviction

-- in his or her testimony. The expert’s opinion should be

27
streamlined to address the five components of CSAAS for its

rehabilitative purpose, and nothing more.

Finally, we note that Dr. Taska was called as the State’s

first witness, prior to the testimony of N.R., her parents, and

her brother, A.R. We recognize that the timing of an expert

witness’s appearance may be dictated by that witness’s

scheduling conflicts or other considerations. A trial court,

however, has discretion to “exercise reasonable control over the

mode and order of interrogating witnesses and presenting

evidence” to “(1) make the interrogation and presentation

effective for the ascertainment of the truth, (2) avoid needless

consumption of time, and (3) protect witnesses from harassment

or undue embarrassment.” N.J.R.E. 611(a). As a general rule, a

CSAAS witness should not be called as the State’s initial

witness, prior to the testimony of the child victim. That

primary position in the sequence of witnesses may mislead the

jury about the import of the expert’s opinion, and undermine its

proper function: to counter the inference that the victim’s

allegations of sexual abuse are fabricated because they were

delayed. A CSAAS expert’s appearance as the State’s initial

witness is incompatible with the exclusively rehabilitative role

of the evidence.

Accordingly, although Dr. Taska’s testimony was in part

proper CSAAS opinion evidence, it exceeded the parameters

28
imposed on CSAAS testimony. In that respect, the admission of

her testimony constituted error.

C.

We next determine whether Dr. Taska’s testimony deprived

defendant of a fair trial. An error will not lead to reversal

unless it is “clearly capable of producing an unjust

result.” R. 2:10-2. Thus, even though an alleged error was

brought to the trial judge’s attention, it will not be grounds

for reversal if it was “harmless error.” State v. Macon, 57

N.J. 325, 337-38 (1971).

An evidentiary error will not be found “harmless” if there

is a reasonable doubt as to whether the error contributed to the

verdict. State v. McLaughlin, 205 N.J. 185, 211-12 (2011)

(citing Macon, supra, 57 N.J. at 338). The prospect that the

error gave rise to an unjust result “must be real [and]

sufficient to raise a reasonable doubt as to whether [it] led

the jury to a verdict it otherwise might not have reached.”

State v. Lazo, 209 N.J. 9, 26 (2012) (second alteration in

original) (quoting R.B., supra, 183 N.J. at 330). As the Court

noted in W.B., supra, “[c]onvictions after a fair trial, based

on strong evidence proving guilt beyond a reasonable doubt,

should not be reversed because of a technical or evidentiary

error that cannot have truly prejudiced the defendant or

affected the end result.” 205 N.J. at 614.

29
 Accordingly, we consider the portion of Dr. Taska’s

testimony that exceeded the bounds of CSAAS evidence in the

broader context of defendant’s trial. The State called Dr.

Taska as its first witness, but her testimony followed defense

counsel’s attack on N.R.’s credibility because of her delayed

reporting of her allegations of abuse. Dr. Taska’s presentation

to the jury was not extensive, and her discussion of the range

of behavior that child victims of sexual abuse may exhibit was

brief. As in R.B., Dr. Taska “never attempted either to

‘connect the dots’ between [the victim’s] behavior and [CSAAS]

or tender an opinion as to whether [the victim] in fact was

abused.” R.B., supra, 183 N.J. at 328.

Moreover, the trial court delivered a strong limiting

instruction, which tracked the CSAAS Model Charge and conformed

to this Court’s admonitions in P.H. and W.B., immediately before

Dr. Taska’s testimony, and again in its final charge to the

jury. Prior to the expert’s testimony, the trial court warned

the jury:

You may not consider Dr. Taska’s testimony as
offering proof that child sexual abuse
occurred in this case. [CSAAS] is not a
diagnostic device and cannot determine whether
or not abuse occurs -- occurred, rather. It
relates only to a pattern of behavior of the
victim[,] which may be present in some child
sexes -- sexual abuse cases.

You may not consider expert testimony about
[CSAAS] as proving whether abuse occurred or

30
 did not occur. Similarly, you may not
consider that testimony as proving in and of
itself, that [N.R.], the alleged victim here,
was or was not truthful.

The trial court’s charge unequivocally informed the jury

that CSAAS is not a diagnostic device, directed the jury not to

consider the testimony as proof that sexual abuse had occurred

in this case or that N.R. was truthful, and stated that the

expert opinion related only to a pattern of behavior that may

appear in some victims of sexual abuse.

Significantly, the critical witness for the State was not

Dr. Taska, but N.R. herself. The record before this Court

reveals that N.R. told the jury, in simple, non-confrontational

language, why she was alone with defendant when the alleged acts

of sexual abuse occurred, and explained the setting of each

encounter. With minimal prompting by the prosecutor, using

terms appropriate to her age, N.R. recounted each alleged

instance of abuse and its aftermath. Although N.R. testified

that she did not review her statement to police, two years

earlier, in preparation for trial, her trial testimony was

fundamentally consistent with that statement, and defense

counsel had few discrepancies to explore on cross-examination.

N.R. did not leave the jury to speculate about the reason

why she delayed reporting the abuse to an adult and spoke only

to her slightly older brothers about it. She testified that she

31
did not disclose the abuse to an adult because she was afraid of

defendant, who instructed her not to tell anyone, and that she

told her brothers about the incidents in the hope that they

would try to protect her.

Although there were no witnesses to the alleged abuse,

N.R.’s account was corroborated in important respects by members

of her family. Her parents and brothers -- including her oldest

brother, G.L.R., who was called as a defense witness --

supported N.R.’s contention that defendant had access to N.R.,

on multiple occasions, with no one else present. Both brothers

concurred with her account of her disclosure of the alleged

abuse to them, and her plea that they not tell anyone what she

had told them. N.R.’s parents and brothers testified

consistently about A.R.’s disclosure to his mother and the

investigation that followed. The family members acknowledged

that defendant was affectionately greeted by all three children,

including N.R., and that he took them on outings. They

recounted, however, N.R.’s unsuccessful attempt in early 2010 to

avoid staying alone with defendant. In short, the testimony of

four family members was essentially consistent with N.R.’s

testimony on the critical questions of defendant’s access to her

and her “fresh complaint” of the alleged abuse.

In his testimony, defendant vehemently denied N.R.’s

allegations of sexual abuse. Defendant confirmed N.R.’s account

32
in material respects, however. Moreover, defendant’s

credibility was substantially challenged on cross-examination.

In his police interview, defendant denied that N.R. ever stayed

overnight at the home he shared with his wife, insisting that

only her brothers made overnight visits to his home. In his

trial testimony, defendant conceded that N.R. had stayed

overnight in his apartment; he insisted that he did not remember

stating otherwise to police officers. He admitted that, on

occasion, N.R. had wanted to leave his apartment and go outside

with her brothers, but was not permitted to do so, and stayed

with him alone.

Defendant was also confronted with self-incriminating

comments that he had made in his police interview, in which he

noted that “nobody was there” except him and N.R., and pressed

officers to tell him whether N.R. had been examined by a doctor.

He admitted that he had commented to the officers, “I have the

mind and capability to lie and remember many things. Sure,

about lies and whatever. I can go to Court. Right? And you

tell maybe 95 percent of whatever I say over here exactly in

Court.” Before the jury, defendant had no explanation for that

statement.

In light of the testimony of N.R., her family members, and

defendant himself, there is no basis to conclude that Dr.

Taska’s brief venture beyond the bounds of proper CSAAS

33
testimony changed the result of defendant’s trial. N.R.,

substantially supported by her parents and brothers, directly

confronted the question at the heart of CSAAS testimony: why

she did not immediately report the alleged abuse to an adult.

The jury heard N.R.’s explanation for her disclosure to her

brothers and her insistence that they not share her secret with

her parents. N.R.’s testimony was challenged in a skillful

cross-examination, but the jury evidently found her credible.

Moreover, defendant’s credibility was effectively impeached on

the core issue of his access to N.R.

In short, when the evidence is considered in its entirety,

it is clear that the trial court’s error with respect to Dr.

Taska was not clearly capable of producing an unjust result, and

does not warrant a new trial.

V.

Amicus curiae the OPD seeks relief that is distinct from

that requested by defendant and beyond the limited grant of

certification in this case. The OPD contends that almost all of

the hypotheses underlying CSAAS testimony have been rejected by

the scientific community over several decades, and that CSAAS

constitutes “junk science” that has no place in a courtroom. It

seeks the rejection of CSAAS evidence in its entirety on the

ground that it is unreliable and therefore inadmissible under

N.J.R.E. 702. The OPD would limit discussion of CSAAS in a

34
sexual assault prosecution to a brief jury instruction on the

reasons for which victims of abuse sometimes delay disclosure.

This Court does not consider arguments that have not been

asserted by a party, and are raised for the first time by an

amicus curiae. See Bethlehem Twp. Bd. of Educ. v. Bethlehem

Twp. Educ. Ass’n, 91 N.J. 38, 48-49 (1982) (“[A]s a general rule

an amicus curiae must accept the case before the court as

presented by the parties and cannot raise issues not raised by

the parties.”); Fed. Pac. Elec. Co. v. N.J. Dep’t of Env’tl

Prot., 334 N.J. Super. 323, 345 (App. Div. 2000) (holding that

amici curiae “must accept the issues as framed and presented by

the parties”); accord Townsend v. Pierre, 221 N.J. 36, 54 n.5

(2015). Consequently, we do not consider the OPD’s challenge to

CSAAS evidence based on developments in the relevant field.

In the event that the OPD wishes to present evidence that

CSAAS has been rejected by experts on child sexual abuse, and to

argue that it should therefore be excluded in accordance with

N.J.R.E. 702, the proper procedure is a challenge to the

admissibility of the evidence before the trial court in an

appropriate case. In such a challenge, the trial court will be

in a position to hold a pretrial hearing pursuant to N.J.R.E.

104, consider the scientific evidence presented by both sides,

and generate an appropriate record for appellate review.

VI.

35
 The judgment of the Appellate Division is reversed, and the

matter is remanded to the Appellate Division so that it may

consider the issues that it did not reach in its prior review of

this case.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE PATTERSON’s
opinion.

36