(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 interests of brevity, portions of any opinion may not have been summarized).
Argued February 1, 1999 -- Decided June 4, 1999
COLEMAN, J., writing for a unanimous Court.
The issues on this appeal are whether permitting a child victim in a sexual-assault case to testify
before a closed circuit television violated Timothy Smith's constitutional right to confront witnesses, and
whether a videotaped statement made by the child to the police should have been excluded from the trial as
unreliable evidence.
T.I., the alleged victim of the aggravated sexual assault, was eight years old at the time of the offense
on December 30, 1994. The sexual assault occurred while T.I. was spending the night at the apartment of
her aunt, A.T., with whom Smith lived. T.I. testified on closed circuit television because she was too
frightened to testify before Smith or in open court. The trial court held a hearing to determine whether T.I.
should be permitted to testify by closed circuit television. The judge heard testimony from T.I., her mother,
and a counselor working with T.I. through her school. The judge concluded that T.I. was extremely and
abnormally fearful of testifying before Smith and in open court; therefore, it would be traumatic for her to
testify in open court. After the court made its ruling, defense counsel informed the judge that Smith would
be willing to waive his presence in the courtroom while T.I. testified. The judge still held that closed circuit
television testimony was required because T.I. would be too traumatized to testify in open court.
T.I. testified that, while she was sleeping on her stomach on the sofa in her aunt's apartment,
someone pulled down her pajama bottoms and digitally penetrated her from the back and front. T.I.
testified that she was able to see that it was Smith as he was going to the bathroom. T.I. did not tell her
aunt what had happened. She told her mother as soon as she returned home on the evening of December
31,1994.
T.I. was interviewed by Detective Edward Koenig on January 3, 1995. T.I. used an anatomically-correct doll to demonstrate what Smith had done to her. This interview was videotaped. The trial court
conducted a preliminary hearing to determine the admissibility of T.I.'s videotaped statement at trial.
During the videotaped interview, there was a one-minute break to allow Detective Koenig to
determine whether he had overlooked any topics while questioning T.I. The trial court noted that some of
the questions that followed the break were repetitive, but were not unduly suggestive. A copy of the
videotape was admitted into evidence even though it was duplicative of T.I.'s court testimony.
Smith testified and denied the allegations against him.
The jury convicted Smith of first-degree aggravated sexual assault. Smith was sentenced to a prison
term of seventeen years.
The Appellate Division reversed the convictions, reasoning that T.I.'s fear of testifying in open court
was not a sufficient basis to allow the use of closed circuit television under the principles enunciated in
Maryland v. Craig and adopted by this Court in State V. Randall. The Appellate Division also held that it
was reversible error to admit into evidence that portion of the videotaped interview of T.I. that followed the
one-minute break because the "re-interview" was full of suggestive material and was more like cross-examination than the neutral examination required by N.J.R.E. 803(c)(27)
The Supreme Court granted certification.
HELD: The trial court did not err in permitting T.I. to testify on closed circuit television. The videotaped
statement made by the child to the police was sufficiently reliable and, therefore, was admissible at
trial.
1. The trial court made the factual findings required by the statute to determine whether T.I. should be
permitted to testify out of the presence of the jury. The trial court's findings were supported by substantial
credible evidence in the record and should not have been disturbed. (pp. 10-12)
2. The constitutional right to confrontation is not absolute; it is subject to certain exceptions. The protection
of children from undue trauma associated with testifying is an important public policy goal. Craig and
Crandall do not require the result suggested by the Appellate Division. T.I.'s testimony in open court would
have so overwhelmed her that it would undermine the truth-finding function of the trial. The testimony on
closed circuit television was under oath, T.I. was cross-examined, and the jury was able to observe T.I.'s
demeanor. Thus, Smith was not deprived of his right to confrontation. (pp. 12-17)
3. N.J.R.E. 803(c)(27) requires a trial court to make a preliminary finding that an out-of-court statement is
sufficiently reliable to satisfy its trustworthiness. Based on the totality of the circumstances, the videotaped
statement is more than sufficiently reliable. The circumstances surrounding the questioning were unimposing
and were not stilted or biased against Smith. The use of the anatomically-correct doll did not undermine the
reliability of T.I.'s statement. Although some of Detective Koenig's questions were leading, they were not
unduly suggestive or akin to cross-examination. (pp. 12-23)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Appellate
Division to decide the remaining issues raised but not resolved in that court.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and
STEIN join in JUSTICE COLEMAN'S opinion.
SUPREME COURT OF NEW JERSEY
A-
213 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
TIMOTHY A. SMITH,
Defendant-Respondent.
Argued February 1, 1999 -- Decided June 4, 1999
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
310 N.J. Super. 140 (1998).
Jordana Jakubovic, Deputy Attorney General,
argued the cause for appellant (Peter
Verniero, Attorney General of New Jersey,
attorney).
Paul B . Halligan, Assistant Deputy Public
Defender, argued the cause for respondent
(Ivelisse Torres, Public Defender, attorney).
The opinion of the Court was delivered by
COLEMAN, J.
This appeal involves a conviction for aggravated sexual
assault upon an eight-year-old female. The critical issues
raised are whether permitting the child to testify before the
jury on closed circuit television violated defendant's
constitutional right to confrontation, and whether a videotaped
statement made by the child to the police should have been
excluded from the trial as unreliable evidence. In a published
opinion, the Appellate Division ruled in favor of defendant on
both issues.
310 N.J. Super. 140, 145-46 (1998). We granted the
State's petition for certification,
155 N.J. 587 (1998), and now
reverse on both issues.
T.I., the victim of the alleged aggravated sexual assault,
was eight years old at the time of the offense on December 30,
1994. The offense occurred while T.I. was spending the night
with her aunt, A.T., who lived with defendant at the same
address. T.I. testified on closed circuit television because the
trial court found that she was too frightened to testify before
defendant or in an open courtroom. T.I. testified that the
incident occurred while she was sleeping on a sofa in the living
room at her aunt's apartment. She stated that while she was
sleeping on her stomach, a person pulled down her pajama bottoms
and digitally penetrated her from the back and front. Although
T.I. could not see the perpetrator's face at the time, she saw
that it was defendant as he was going to the bathroom. She also
recognized the individual's voice as that of defendant when he
said to her that he was sorry and that he thought she liked it.
After the incident, T.I. saw the perpetrator go into her aunt's
bedroom. T.I. was able to see by light from a television in her
aunt's bedroom.
T.I. spent the next day at her aunt's apartment without
telling her aunt what had happened the night before. The aunt
dropped T.I. off at T.I.'s mother's house the evening of December
31, 1994. After arriving at home, T.I. told her mother what had
happened. Detective Edward R. Koenig interviewed T.I. on January
3, 1995, and videotaped the interview. A copy of the video tape
was admitted as evidence even though it was duplicative of T.I.'s
court testimony. T.I. used an anatomically-correct doll during
the videotaped interview to demonstrate what defendant had done
to her.
A.I., the child's mother, testified that there was a time
when she and T.I. lived with A.T. During that period, defendant
would visit the home almost daily. When T.I. was taken back to
her home on December 31, 1994, T.I. told her mother what
defendant had done to her. Although A.I. was not asked to repeat
what T.I. said, A.I. stated that based on what T.I. told her,
A.I. contacted the county prosecutor on January 3, 1995. The
trial court immediately explained to the jury why that fresh-complaint evidence was admitted.
Defendant testified on his own behalf and denied the
allegations. He stated that on the night in question he returned
home intoxicated. He testified that after going to the bathroom,
he went to bed without disturbing T.I.
The jury convicted defendant of first-degree aggravated
sexual assault. He was sentenced to a custodial term of
seventeen years without a parole disqualifier. On appeal, the
Appellate Division reversed his conviction. Smith, supra, 310
N.J. Super. at 145-47. The panel reasoned that T.I.'s fear of
testifying in the open courtroom was not a sufficient basis to
allow the use of the closed circuit television under the
principles enunciated in Maryland v. Craig,
497 U.S. 836,
110 S.
Ct. 3157,
111 L. Ed.2d 666 (1990), and adopted by this Court in
State v. Crandall,
120 N.J. 649 (1990). Smith, supra, 310 N.J.
Super. at 145. The panel read Craig and Crandall as holding
“that testimony by closed circuit television may only be employed
to protect the infant from a face-to-face confrontation with the
defendant.” Id. at 144-45. Fear of the courtroom alone was
deemed insufficient. Id. at 145.
The panel also held that it was reversible error to admit
into evidence that portion of the videotaped interview of T.I.
that followed a one-minute break. Id. at 146. According to the
panel, the “re-interview” was “replete with suggestive material
and more akin to cross-examination than the neutral examination
[N.J.R.E. 803(c)(27)] requires.” Ibid.
The State argues that under the facts of this case, the
provisions of N.J.S.A. 2A:84A-32.4, and the controlling
decisional law, permitting T.I. to testify on closed circuit
television did not deprive defendant of his constitutional right
of confrontation. Defendant maintains that the Appellate
Division properly limited the availability of closed circuit
television testimony to those instances in which specific
findings have been made that the witness will be traumatized by
the defendant's presence. Defendant insists that the evidence at
trial was ambiguous regarding the determinative cause of T.I.'s
fear and that the trial court improperly refused to permit him to
waive his right to be present so as to enable T.I. to testify
live before the jury.
Our analysis must begin with an examination of the facts
found by the trial court that informed its decision to allow T.I.
to testify on closed circuit television. At the time of trial,
T.I. was nine years old. The trial court conducted a pretrial
hearing to determine whether T.I. should be permitted to testify
on closed circuit television pursuant to N.J.S.A. 2A:84A-32.4.
That hearing was conducted on June 4, 1996.
T.I. testified at the hearing that she feared talking about
the incident and stated that she would not be able to talk about
it if defendant was present. T.I. also indicated that she would
not be able to testify in court in front of a jury even if
defendant was not present.
Next to testify was Jacquelyn Bonanno, a counselor for the
Resolve Community Counseling Center, who had been working with
T.I. through T.I.'s school. Ms. Bonanno testified that in her
opinion, T.I. would be unable to testify either in front of
defendant or in front of a jury. She stated that T.I.
continually indicated that she was frightened and did not want to
go to court. When Ms. Bonanno was asked by the trial judge
whether she thought that testifying would be a traumatic event
for T.I., Ms. Bonanno said yes.
A.I., T.I.'s mother, testified that a week prior to the
hearing T.I. and the assistant prosecutor had come to court to
try to acquaint T.I. with the courtroom. A.I. indicated that
T.I. refused to sit in the witness chair and refused to talk.
A.I. also testified that T.I. was having problems going to school
and interacting with other children.
At the close of the evidentiary hearing, the trial court
made the following factual findings and legal conclusions:
My view of that child is, A, sure, she
is frightened but it's beyond the fear I've
seen in other children who have testified in
similar cases before me in similar courtrooms
as this. I have had other cases involving
children of seven, eight, nine, ten and
they're all afraid to come into court. But
that is overcome in the past at least by them
coming in a day or week before and sitting in
the [witness] seat.
This child is a very frightened little
girl. That fear comes through quite clearly.
It comes through also if [T.I.] doesn't want
to go on about a question, [T.I.] puts her
head down and doesn't say anything and then
you have to ask her another question to draw
her out.
Now clearly from [T.I.] the facts are
quite evident. Although she has no trouble
sleeping, her mother confirms that fact, she
still has a lot of fear of [defendant].
It comes through through her mother who
testified that the little girl is frightened
of this gentleman and of the person, Miss
Bonanno, who has interviewed the child and
talked to the child and acted as her
counselor and it is clear that she has fear
not only of testifying in this room before 12
or 14 strangers but also of this particular
gentleman.
I have written down the following notes
on [T.I.], some of which were questions by
the State and some of which were mine and
some defense questions. She said quite
clearly in there she could not testify in
person before the jury. That she's scared
when she sees the defendant. That she's not
able to sit in the witness chair. That
because the room is too big and she cannot
talk in court. But she could talk about it
in camera with the link-up we have set up
here.
[The child's mother] testified . . .
that the child has in the last several weeks
manifested more problems. She's afraid of
him. Whenever she sees him, she gets very
angry and fearful and what's very important
is that it's manifesting itself in school and
that's manifesting itself around the area of
the first trial date, which is May 6th
continuing through today's date. That's why
the school brought in the counselor.
To say that's some coincidence is
begging the -- is evading the question it
seems to me. The child is getting more and
more fearful. She is even faking illness not
to go to school.
Now, the fact that the mother thought
the child could testify in court is not
controlling. The expert says that that can't
happen. The child says that can't happen. I
find based upon the testimony that I've heard
quite clearly beyond my mind any doubt,
surely by clear and convincing evidence, that
this child is frightened of your client and
frightened of these surroundings and
frightened beyond the normal.
T.I. was scheduled to testify on closed circuit television
on June 5, 1996. Before that testimony could begin, T.I. became
ill. The assistant prosecutor informed the court that T.I. "has
been throwing up." When defense counsel urged the court to
disregard the prosecutor's statement that the child's illness was
a further indication of her fears of the courtroom, the trial
court stated:
I think it's quite clear that it's
necessary to protect her welfare as a witness
today that she would truly be traumatized if
she was required to appear in court before
the jury and your client.
I believe that based upon my seeing the
child testify yesterday before me and hearing
her therapist testify before in open court.
This is not mere nervousness or excitement or
any reluctance to testify. I have tried
similar cases in the past with other
children. None of them enjoy coming in. But
I've never seen a child more frightened to
come into court than this particular case.
To summarize, the trial court found that T.I. was fearful of
testifying in open court and in the presence of defendant, and
for those reasons, she needed to testify on closed circuit
television.
After the court made its rulings on June 4, 1996, defense
counsel informed the trial court for the first time on June 5,
1996, that defendant was "willing to waive his presence and . . .
sit in another room or outside in the hallway while [T.I.]
testifie[d]." The trial court concluded that the child still
would be too frightened or traumatized to testify.
The statute that outlines when a child may be permitted to
testify out of the presence of the jury provides:
a. In prosecutions for aggravated sexual
assault [and] sexual assault . . . , the
court may, on motion and after conducting a
hearing in camera, order the taking of the
testimony of a witness on closed circuit
television at the trial, out of the view of
the jury, defendant, or spectators upon
making findings as provided in subsection b.
of this section.
b. An order under this section may be
made only if the court finds that the witness
is 16 years of age or younger and that there
is a substantial likelihood that the witness
would suffer severe emotional or mental
distress if required to testify in open
court. The order shall be specific as to
whether the witness will testify outside the
presence of spectators, the defendant, the
jury, or all of them and shall be based on
specific findings relating to the impact of
the presence of each.
[N.J.S.A. 2A:84A-32.4]
It is clear that the trial court made the factual findings
required by the statute, and those findings are supported by
substantial credible evidence in the record. State v. Locurto,
157 N.J. 463, 472 (1999); State v. Johnson,
42 N.J. 146, 161-62
(1964). Those findings should not be disturbed.
Although the trial court conducted the evidentiary hearing
required by N.J.S.A. 2A:84A-32.4 and found that the statutory
preconditions for allowing testimony on closed circuit television
had been satisfied, defendant nonetheless contends that his
constitutional right to confrontation was violated. The
Confrontation Clause of the Sixth Amendment of the United States
Constitution provides: “In all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the
witnesses against him.” The Confrontation Clause is applicable
to the states through the Fourteenth Amendment. Pointer v.
Texas,
380 U.S. 400,
85 S. Ct. 1065,
13 L. Ed.2d 923 (1965).
In Mattox v. United States, the first case interpreting the
Confrontation Clause, the United States Supreme Court noted:
The primary object of the [Confrontation
Clause] was to prevent depositions or ex
parte affidavits . . . being used
against the prisoner in lieu of a
personal examination and cross-examination of the witness, in which the
accused has an opportunity, not only of
testing the recollection and sifting the
conscience of the witness, but of
compelling him to stand face to face
with the jury in order that they may
look at him, and judge by his demeanor
upon the stand and the manner in which
he gives his testimony whether he is
worthy of belief.
[Mattox v. United States,
156 U.S. 237, 242-43,
15 S. Ct. 337, 339,
39 L. Ed. 409 (1895)]
Although the constitutional right to confrontation is firmly
entrenched in American jurisprudence, the right is not absolute.
Craig, supra, 497 U.S. at 844, 110 S. Ct. at 3163, 111 L. Ed.
2d
at 677. Both the United States Supreme Court and this Court have
held that the right is subject to certain exceptions of
consequence. Id. at 857, 110 S. Ct. at 3170, 111 L. Ed.
2d at
686 (using closed circuit television testimony does not violate
Confrontation Clause where child witness fears defendant); Idaho
v. Wright,
497 U.S. 805,
110 S. Ct. 3139,
111 L. Ed.2d 638
(1990) (admitting hearsay statements into evidence does not
violate Confrontation Clause when statements have sufficient
indicia of reliability); Coy v. Iowa,
487 U.S. 1012,
108 S. Ct. 2798,
101 L. Ed.2d 857 (1988) (holding an exception to
Confrontation Clause must further important public policy);
Pennsylvania v. Ritchie,
480 U.S. 39,
107 S. Ct. 989,
94 L. Ed.2d 40 (1987) (determining that Confrontation Clause does not
compel pre-trial discovery); Bourjaily v. United States,
483 U.S. 171,
107 S. Ct. 2775,
97 L. Ed.2d 144 (1987) (holding co-conspirator hearsay exception does not violate Confrontation
Clause); United States v. Inadi,
475 U.S. 387,
106 S. Ct. 1121,
89 L. Ed.2d 390 (1986) (same); Ohio v. Roberts,
448 U.S. 56,
100 S. Ct. 2531,
65 L. Ed.2d 597 (1980) (stating demonstration of
unavailability of witness is not necessary prerequisite to
admission of certain hearsay to avoid violation of Confrontation
Clause); California v. Green,
399 U.S. 149,
90 S. Ct. 1930,
26 L.
Ed.2d 489 (1970) (holding prior statement subject to cross-examination when made does not violate Confrontation Clause);
Crandall, supra,
120 N.J. 649 (holding child's closed circuit
television testimony does not violate Confrontation Clause where
child witness fears defendant).
The basic elements of confrontation are physical presence,
oath, cross-examination, and observation of demeanor by the trier
of fact. Craig, supra, 497 U.S. at 846, 110 S. Ct. at 3163, 111
L. Ed.
2d at 678. However, “[t]he central concern 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.” Id. at 845, 110 S. Ct. at 3163, 111 L. Ed.
2d at 678.
The trial court determined that T.I.'s abnormal fear of
testifying both in the presence of defendant and the jury
required the use of closed circuit television. In reversing, the
Appellate Division interpreted Craig and Crandall as establishing
“that testimony by closed circuit television may only be employed
to protect the infant from a face-to-face confrontation with the
defendant.” Smith, supra, 310 N.J. Super. at 144-45 (citing
Craig, supra, 497 U.S. at 856, 110 S. Ct. at 3169, 111 L. Ed.
2d
at 685; Crandall, supra, 120 N.J. at 655.) The court held that
because defendant was willing to waive his presence, use of
closed circuit television was a “clear violation of the
principles pronounced in Craig and Crandall,” requiring a
reversal of the conviction. Id. at 145.
We disagree that either Craig or Crandall required a
reversal in this case. To the contrary, the Craig and Crandall
decisions provide the logical framework and reasoned foundation
on which an affirmance of the trial court's rulings should have
been premised.
The protection of children from undue trauma associated with
testifying is an important public policy goal. Coy, supra, 487
U.S. at 1025, 108 S. Ct. at 2805, 101 L. Ed.
2d at 869 (O'Connor,
J., concurring). Clearly, that is the public policy sought to be
advanced by N.J.S.A. 2A:84A-32.4. With the caveat of Mattox
firmly in mind, the Craig Court held that considerations of
public policy can trump the preference for face-to-face
confrontation in a case in which a child witness will be unduly
traumatized by the presence of the defendant. Craig, supra, 497
U.S. at 853, 110 S. Ct. at 3167, 111 L. Ed.
2d at 683. Here, as
in Craig, “where face-to-face confrontation causes significant
emotional distress in a child witness, there is evidence that
such confrontation would in fact disserve the Confrontation
Clause's truth-seeking goal.” Id. at 857, 110 S. Ct. at 3169,
111 L. Ed.
2d at 686. The record before us establishes that
face-to-face confrontation between T.I. and defendant, and/or
between T.I. and the jury, “may so overwhelm the child as to
prevent the possibility of effective testimony, thereby
undermining the truth-finding function of the trial itself.”
Coy, supra, 487 U.S. at 1032, 108 S. Ct. at 2809, 101 L. Ed.
2d
at 874 (Blackmun, J., dissenting). The trial court's factual
findings and well-reasoned opinion were intended to preclude that
from occurring.
We reject the Appellate Division's attempt to limit
application of N.J.S.A. 2A:84A-32.4 to only those instances in
which the child's incapacitating fear is derived solely from the
presence of the defendant. Here, there is no clear way to
differentiate among the origins of T.I.'s fears. Whether her
fear was attributable to defendant, or resulted from a
combination of testifying in the courtroom in the presence of
defendant cannot be discerned. Defendant did not agree to waive
his presence until attempts had been made to prepare the victim
to testify in defendant's presence. By the time he offered to
waive his presence on June 5, 1996, the traumatic effect had
already undermined the truth-seeking function of the trial. A
week before trial, the child demonstrated her fears when a
courtroom rehearsal was attempted. Such fears by a nine-year-old
sexual assault victim should not be allowed to subvert the truth
which in turn frustrates the underlying truth-seeking principles
of the Confrontation Clause.
The more reasoned approach is to look at the result of the
fear, not simply its origin. If the effect of the child's fear
is to prevent the proper functioning of the truth-finding
process, whether that fear derives from the presence of the
defendant alone, or a combination of the presence of the
defendant and the jury, or from the courtroom, should not lead to
a different result under N.J.S.A. 2A:84A-32.4 or the
Confrontation Clause. Moreover, in a typical busy courthouse, it
is impractical to seek a smaller courtroom in an attempt to
possibly reduce the child-victim's fear, particularly when the
child is so afraid that the attempt is not likely to succeed.
Here, as in Craig, the testimony on closed circuit
television was under oath, an extensive cross-examination was
conducted, and the jury and defendant made observations of T.I.'s
demeanor that “adequately ensure[d] that the testimony [was] both
reliable and subject to rigorous adversarial testing in a manner
functionally equivalent to that accorded live, in-person
testimony.” Craig, supra, 497 U.S. at 851, 110 S. Ct. at 3166,
111 L. Ed.
2d at 682. It must be remembered that “the ultimate
purpose of the Confrontation Clause is not to protect eye-to-eye
contact between the jury and witness” but instead “to further the
truth-seeking process of the trial by ensuring that the jury can
observe the demeanor of the witness.” Crandall, supra, 120 N.J.
at 658. Under the facts and circumstances of this case, it
cannot be said that the use of closed circuit television deprived
defendant of his right to confrontation. Consequently, we hold
that the trial court did not err in permitting T.I. to testify on
closed circuit television.
The State also argues that the videotaped statement given by
T.I. was properly admitted as evidence. Pursuant to New Jersey
Rule of Evidence 104, the trial court conducted a preliminary
hearing to determine the admissibility of that statement. During
that hearing Detective Edward R. Koenig, an experienced detective
in the Union County Prosecutor's Office, Child Abuse Unit,
testified that the videotape encompassed his entire conversation
with T.I., except for his introduction to her. The videotape
reveals that during the interview, the detective asked T.I. a
number of questions about the incident, using an anatomically-correct doll to permit T.I. to demonstrate the assault. A break
was taken during the interview to allow Detective Koenig to
confer with a “spotting” detective to determine whether he had
overlooked any topics while questioning T.I. The break lasted
approximately one minute and was not recorded on the videotape.
The detective then continued with follow-up questions for T.I.
The trial court observed that although some of the questions that
followed the break were repetitive, they were not unduly
suggestive. Nonetheless, the court waited until after hearing
T.I.'s trial testimony before deciding whether to admit the
videotape as evidence. After hearing T.I.'s trial testimony, the
trial court concluded that the videotape was admissible, finding
it trustworthy and reliable.
The Appellate Division agreed with the trial court's
determination regarding that portion of the interview that
preceded the one-minute break. Smith, supra, 310 N.J. Super. at
146. However, the panel held that subsequent to the one-minute
break, the “'re-interview' was replete with suggestive material
and more akin to cross-examination.” Ibid. According to the
panel, “[s]uggestive questions may not imperil voluntariness, but
a lack of spontaneity creates doubts as to reliability." Id. at
146-47. It found reversible error in admitting the entire
videotape.
T.I.'s videotaped statement was admitted as evidence
pursuant to New Jersey Rule of Evidence 803(c)(27). The genesis
of the tender years exception to the hearsay rule, N.J.R.E.
803(c)(27), can be traced to the Court's decision in State v.
D.R.,
109 N.J. 348 (1988), which recognized the difficult
problems of proof associated with child-victim testimony in
sexual abuse prosecutions. In State v. D.R., we observed that
“testimony by the victim is often the indispensable element of
the prosecution's case.” Id. at 358. As in many cases, the
Court noted, acts of child sexual abuse are perpetrated by an
individual close to the victim, unwitnessed, and leave no visible
physical evidence. Ibid. We also noted that testimony by the
child is often “highly credible” as the offensiveness and
invasive nature of the attack can be blunted by the child's lack
of sexual orientation, thereby producing an uninhibited ability
of the child to recount the assaultive acts. Id. at 359.
Consistent with State v. D.R., Idaho v. Wright held that
before a young victim's incriminating hearsay statements can be
presented as evidence, the statements must bear sufficient
indicia of reliability. Wright, supra, 497 U.S. at 816, 110 S.
Ct. at 3147, 111 L. Ed.
2d at 653. More recently, we reaffirmed
that New Jersey Rule of Evidence 803(c)(27) requires a trial
court to make a preliminary finding that an out-of-court
statement is sufficiently reliable based on the "time, content
and circumstances of the statement and then decide what is the
probability that the statement is trustworthy.” State v. D.G.,
157 N.J. 112, 128 (1999). That rule was meticulously followed in
this case.
The trial court waited until after the child had given her
trial testimony to enable it to make a comparison before making
its ruling. In so doing, the trial court was able to compare key
factors such as the spontaneity and consistency of the child's
responses to questions and the language or terminology used by
the child. See State v. Michaels,
136 N.J. 299, 318 (1994). The
eight-year-old child here was videotaped only three days after
the incident. Although T.I. was obviously uncomfortable and
reticent in answering the detective's questions, her answers were
consistent and she used unadulterated terminology in recounting
the events of the assault. T.I. exhibited a clear understanding
of the difference between telling the truth and telling a lie,
and no evidence was produced that would indicate that T.I. had
any motive to fabricate the charges. To the contrary, her
statement was made despite the very real fear of alienating her
aunt, A.T., defendant's fiancee.
In addition, Detective Koenig testified that other than
introducing himself to T.I., there was no other discussion
between himself and T.I. concerning the facts of the assault
apart from that which was videotaped. The circumstances
surrounding the questioning were unimposing and in no way unduly
stilted or biased against defendant. Furthermore, we do not
perceive the use of the anatomically-correct doll as undermining
the reliability of T.I.'s statement.
Although some of the questions asked by Detective Koenig
could be deemed to be slightly leading in nature, we disagree
with the Appellate Division that the questions were unduly
suggestive “and akin to cross-examination.” Indeed, the use of
leading questions to facilitate an examination of child witnesses
who are hesitant, evasive or reluctant is not improper. In re
R.R.,
79 N.J. 97, 114-15 (1979); In re B.G.,
289 N.J. Super. 361,
370-71 (App. Div.), certif. denied,
145 N.J. 374 (1996); United
States v. Nabors,
762 F.2d 642, 650-51 (8th Cir. 1985); United
States v. Littlewind,
551 F.2d 244, 245 (8th Cir. 1977).
The facts in the present case are to be distinguished from
those in State v. D.G., which failed to establish sufficient
reliability. There, the eight-year-old victim was persistently
questioned on videotape by a detective from the Cape May County
Prosecutor's office. The seven minutes of questioning that
occurred while the detective spoke with the child's aunt and
asked her to reassure the little girl that it was permissible to
tell the truth, went too far. The totality of what transpired
during the seven-minute break persuaded the Court that the
detective's questioning was not “a neutral interview designed to
provide [the child] with a fair opportunity to describe what
happened.” State v. D.G., supra, 157 N.J. at 131. The
combination of the detective's questioning and the seven-minute
gap in the interview, during which time the detective and the
witness's aunt spoke to the child and encouraged her to tell the
truth, combined “to call into question the validity of the second
part of the interview.” Id. at 133. In both cases, the ultimate
issue is whether the hearsay is sufficiently reliable and that
answer is highly fact-sensitive.
Based on the totality of the circumstances in the present
case, the videotaped statement of T.I. is more than sufficiently
reliable to satisfy the trustworthiness required by New Jersey
Rule of Evidence 803(c)(27). We caution, however, that the
trial courts in a proper case must serve as gatekeepers when
repetitive corroborating hearsay evidence is proffered pursuant
to New Jersey Rule of Evidence 803(c)(27). Consequently, "a
trial court should be cognizant of its right under N.J.R.E. 403,
to exclude evidence if it finds in its discretion, that the
prejudicial value of that evidence substantially outweighs its
probative value." State v. D.G., supra, 157 N.J. at 128.
The judgment of the Appellate Division is reversed. The
matter is remanded to the Appellate Division to decide the
remaining issues raised but not resolved in that court.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, and STEIN join in JUSTICE COLEMAN's opinion.
NO. A-213 SEPTEMBER TERM 1997
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
TIMOTHY A. SMITH,
Defendant-Respondent.
DECIDED June 4, 1999
Chief Justice Poritz PRESIDING
OPINION BY Justice Coleman
CONCURRING OPINION BY
DISSENTING OPINIONS BY