Phillips v. Gelpke

*597Justice RIVERA-SOTO,

concurring in the result.

Plaintiff Melissa Phillips testified that, while still a child between the ages of three and eight, she was the victim of several sexual assaults by her uncle, defendant John Gelpke. She explained that some of her memories of those childhood assaults were triggered by a dream she had at age eleven and that, thereafter, she recalled further instances of sexual abuse as flashbacks. Defendant sought to bar that testimony, claiming that plaintiff was required to tender expert testimony supporting her delayed recall as a condition precedent to admissibility, a theory of admissibility rejected by the trial court but embraced by the Appellate Division.

The majority concludes that plaintiff was entitled to advance her “case of[ ] T forgot and then I remembered,’ ” ante, 190 N.J. 583, 921 A.2d at 1068 (2007), and that no expert testimony was required to advance that cause. In the majority’s terms, “the question is whether there is something peculiar about plaintiffs recall of earlier events, which is beyond the ken of the average juror or is so esoteric that it requires explanation through an expert’s testimony.” Id. at 591, 921 A.2d at 1074. The majority concludes that “it was the jury’s responsibility to consider plaintiffs story of recollection and to determine whether it was credible, even though unadorned by expert validation that she could recollect as she says she did.” Id. at 592, 921 A.2d at 1074.

I reach that end but through different, more traditional means. Thus, I concur with the majority’s result.1 The concept of recall, on which the majority relies, is but an element of overall witness competence. Thus, in my view, this appeal requires that we focus on the intersection between the competence of a witness to testify and the need, if any, for expert testimony to support the witness’s recall of an event. From the perspective of a witness’s compe*598tence, when a witness testifies as to events that trigger the witness’s recollection of a past event, that triggering event addresses the weight of the witness’s testimony, and not its admissibility. Stated differently, when, as here, a claim is filed timely, a temporarily forgotten memory does not constitute a recovered memory that requires expert testimony in order to be admissible. 2

The operative concept here is not the element of recall, but the core concept of competence. The overarching rule in respect of testimony concerning factual events is plainly stated: “[e]very person is competent to be a witness[.]” N.J.R.E. 601 (emphasis supplied). We recently explained that

Rule 601 reflects “the basic policy of our law that every person is qualified and compellable to be a witness and to give relevant and competent evidence at a trial.” State v. Briley, 53 N.J. 498, 506, 251 A.2d 442 (1969) (citation omitted). Stated differently, our “system of justice ... has established as a general rule that all persons should be qualified to testify, and that disqualification should be the exception!)]” Germann v. Matriss, 55 N.J. 193, 217, 260 A.2d 825 (1970). As a result, Rule 601 focuses on whether “a prospective witness [has] the ability to understand questions and to frame and express intelligent answers____” [State in Interest of] R.R., 79 N.J. 97, 114, 398 A.2d 76 (1979) (citation and internal quotation marks omitted).
[State v. G.C., 188 N.J. 118, 133, 902 A.2d 1174 (2006).]

The analysis, therefore, is simple — “[i]n order to be competent to testify, a witness should have sufficient capacity to observe, recollect and communicate with respect to the matters about which he is called to testify, and to understand the nature and obligations of an oath[,]” State v. G.C., supra, 188 N.J. at 181, 902 A.2d 1174 (citations and internal quotation marks omitted) — and those four elements of competence have been codified in our Rules of Evidence. See N.J.R.E. 602 (perception), N.J.R.E. 601(a) (recollection), N.J.R.E. 601(a) (communication), and N.J.R.E. 601(b), 603 (obligation for truthfulness).3

*599Against that primary backdrop, there is no meaningful or recognized difference between recall — plaintiff’s theory of “I forgot and then I remembered” — and core principles of competence. Reduced to its essence, then, the import of this ease addresses witness competence, and not any particular theory of recall. Once competence is established, as it was here, “[t]he extent to which ... testimony [is] to be believed [is] for the jury.” State v. Carter, 91 N.J. 86, 124, 449 A.2d 1280 (1982). Specifically, “questions concerning the [witness’s] recall are now relevant only insofar as they bear upon the weight which the factfinder places upon testimony that has in fact been given.” State in Interest of R.R., 79 N.J. 97, 116, 398 A.2d 76 (1979).

In the end, this case developed as it should have. Plaintiff testified as to how and why she recalled the events of sexual abuse that occurred when she was between the ages of three and eight. That testimony, which explained her memory of the events and how those memories came to her, implicates solely a quintessential element of witness competence: plaintiffs memory or recall. There is nothing in plaintiffs recall of the acts of sexual abuse she alleged against defendant that is beyond the ken of the average juror or is so esoteric as to require expert testimony. Defendant, ironically, was advantaged by his successful in limine motion because plaintiff was barred from presenting any expert proofs to explain why her memories were triggered by a dream and then returned to her only in bits-and-pieees. Further, defendant, by way of impeachment, presented expert proofs challenging plaintiffs competence in respect of her recall and, hence, her credibility. The jury, based on all of the evidence presented to it, *600performed its function and assessed plaintiff’s credibility. That, in a nutshell, is precisely how proofs in our system of trials are to be developed. No error — much less reversible error — is present in this record on this point.

The better, more traditional rule of law that commands those conclusions is founded on plaintiffs competence as a witness and not on some idiosyncratic theory of recall. Viewed thusly, plaintiff clearly was competent as a witness; whatever shortcomings her recall of the events may have had were properly addressed by reference to the weight to be given to that testimony, and not to its admissibility.

Therefore, although I reject the majority’s analysis as foreign and untethered to traditional evidence law concepts, I nonetheless concur in the result.

For reversal and remandment — Chief Justice ZAZZALI, and Justices LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO, and HOENS — 7.

Opposed — None.

I also concur with the majority’s analysis rejecting the Appellate Division's decision below, Phillips v. Gelpke, 382 N.J.Super. 505, 889 A.2d 1108 (App.Div. 2006), and hence need not address it. See ante, at 593-96, 921 A.2d at 1074-77.

I also concur in the majority’s distinction between the quantum of proofs required to admit delayed recall testimony based on whether the underlying claim is timely or time-barred. Ante, at 591-96, 921 A.2d at 1073-77.

As the majority acknowledges, different rules apply in respect of the admission of or need for expert opinion testimony. Specifically, we permit "scientific. *599technical, or other specialized knowledge [if it] will assist the trier of fact to understand the evidence or to determine a fact in issue[.]” N.J.R.E. 702. Thus, we have underscored that " ‘[t]he test of need for expert testimony is whether the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the party was reasonable.''' Scully v. Fitzgerald, 179 N.J. 114, 127, 843 A.2d 1110 (2004) (quoting Butler v. Acme Markets, Inc., 89 N.J. 270, 283, 445 A.2d 1141 (1982)). See ante, at 590-91, 921 A.2d at 1073.