RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2238-14T3

APPROVED FOR PUBLICATION STATE OF NEW JERSEY IN November 9, 2016 THE INTEREST OF A.R., a minor. APPELLATE DIVISION _________________________________

Argued October 17, 2016 – Decided November 9, 2016

Before Judges Sabatino, Haas and Currier.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FJ-09-0170-15.

Alison Perrone, Designated Counsel, argued the cause for appellant A.R. (Joseph E. Krakora, Public Defender, attorney; Ms. Perrone, on the brief).

Jennifer J. Pinales, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Esther Suarez, Hudson County Prosecutor, attorney; Ms. Pinales, on the brief).

Frank Muroski, Deputy Attorney General, argued the cause for amicus curiae State of New Jersey Attorney General (Christopher S. Porrino, Attorney General, attorney; Ian C. Kennedy, Special Deputy Attorney General/ Acting Assistant Bergen County Prosecutor, of counsel and on the brief).

Lawrence S. Lustberg argued the cause for amicus curiae John J. Gibbons Fellowship in Public Interest and Constitutional Law at Gibbons P.C. (Gibbons P.C., attorneys; Mr. Lustberg and Jake F. Goodman, on the brief). The opinion of the court was delivered by

SABATINO, P.J.A.D.

This appeal concerns the continued validity of what can be

termed the "incompetency proviso" within the tender-years

hearsay exception, N.J.R.E. 803(c)(27). The exception, which

was enacted in 1989 in accordance with the Supreme Court's

proposal in State v. D.R.,

(1988), reads as

follows:

A statement by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal, juvenile, or civil proceeding if (a) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to [N.J.R.E.] 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) either (i) the child testifies at the proceeding, or (ii) the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse; provided that no child whose statement is to be offered in evidence pursuant to this rule shall be disqualified to be a witness in such proceeding by virtue of the requirements of [N.J.R.E.] 601.

[N.J.R.E. 803(c)(27) (emphasis added).]

2 A-2238-14T3 After a bench trial in the Family Part, the appellant

juvenile in this case, A.R., was found to have

committed inappropriate sexual contact with a minor victim, J.C.

On the date in question, both appellant and J.C. rode a school

bus together that was returning them from summer camp.

Appellant was then age fourteen, and J.C. was age seven,

although developmentally comparable to a three-year-old. After

getting off the bus, J.C. allegedly told his mother's cousin

that appellant touched his "pee-pee" during the bus ride. The

child's mother reported this to the police. A detective with

the county prosecutor's office conducted a videotaped interview

of J.C. eighteen days later. During that interview, J.C.

repeated the allegations of genital touching.

At a pretrial Rule 104 hearing, the trial judge ruled that

J.C.'s hearsay statements to the cousin and the detective were

sufficiently trustworthy to be admissible under N.J.R.E.

803(c)(27). However, when the trial commenced, the judge

questioned J.C. about his ability to discern and tell the truth,

and twice concluded from J.C.'s troublesome responses that he

was not competent to testify under the criteria of N.J.R.E. 601.

Nevertheless, because of the incompetency proviso in N.J.R.E.

803(c)(27), the judge allowed the prosecution to present

testimony from J.C.

3 A-2238-14T3 The child repeated on direct examination the sexual

touching allegations. Defense counsel conducted a brief cross-

examination. The judge relied on J.C.'s hearsay statements in

concluding that appellant had committed the sexual touching,

even though no eyewitnesses on the bus had corroborated the

allegations.

On appeal, the juvenile argues, among other things, that

J.C.'s hearsay statements to the detective are "testimonial" as

defined by the United States Supreme Court in Crawford v.

Washington,

,

,

(2004), and its progeny. Appellant contends that he was

deprived of his rights assured under the Confrontation Clauses

of the United States and New Jersey Constitutions of meaningful

cross-examination of those testimonial statements due to J.C.'s

incompetency. Appellant thus asserts that the incompetency

proviso within N.J.R.E. 803(c)(27) must be invalidated as to

such testimonial hearsay statements. Appellant further argues

that his adjudication of delinquency must be set aside for lack

of adequate proof.

The pivotal question under the Confrontation Clause, as set

forth in the Court's controlling precedents since Crawford, is

whether a declarant's hearsay statements are testimonial. The

Court has adopted an objective "primary purpose" test for

4 A-2238-14T3 ascertaining whether hearsay statements made to law enforcement

officers are testimonial. See Davis v. Washington,

,

,

(2006).

Here, the circumstances reflect that the objective "primary

purpose" of the detective's videotaped interview was to elicit

and preserve statements from an identified child victim of

sexual abuse about wrongful acts for potential use as evidence

in a future prosecution. The child's recorded statement, which

was admitted over objection, was consequently testimonial.

The Confrontation Clause guarantees an accused, including a

juvenile in our State such as A.R., the right to confront

testimonial statements through cross-examination. Although

cross-examination was attempted by appellant's trial counsel in

this case, that exercise was inadequate to safeguard her

client's rights, given the trial court's undisputed finding that

this particular child was incompetent as a witness.

As a matter of evidence law, the proviso in N.J.R.E.

803(c)(27) authorizes the admission of certain hearsay

statements from young sexual assault victims who are not

competent witnesses. Nevertheless, the constitutional

imperatives of the Confrontation Clause must override that

5 A-2238-14T3 provisio in the circumstances presented here with respect to the

detective's interview of J.C.

For similar reasons, the child's incompetent testimony at

appellant's bench trial repeating his accusations must likewise

be disregarded. However, J.C.'s spontaneous utterance to his

relative after getting off the bus was not testimonial under the

Confrontation Clause. Hence, as appellant concedes, that

particular statement was admissible as evidence for the

prosecution.

For the amplified reasons that follow, we therefore reverse

the trial judge's admission of this incompetent child's

testimonial statements. We remand the matter for the judge, in

his special capacity as fact-finder, to consider whether the

State's remaining evidence suffices to prove appellant's

commission of the charged offense beyond a reasonable doubt.

I.

This case stems from an alleged incident in which appellant

A.R., a juvenile born in April 2000, had inappropriate sexual

contact on a school bus with J.C., born in June 2007. We

present the factual record in some detail, insofar as it affects

our legal and constitutional analyses.

6 A-2238-14T3 The Alleged Incident on the Bus and J.C.'s Statement to

G.K.

On July 3, 2014, A.R. and J.C. were on a school bus

transporting approximately twenty children with special needs

from a summer day camp. J.C. is diagnosed with autism and ADHD.1

The parties agree that, although chronologically the age of

seven, he developmentally corresponded to a three-year-old at

the time of the alleged incident.

J.C. was picked up at the bus stop that afternoon by his

mother's cousin, G.K. After getting off of the bus, J.C.

blurted out to G.K. that A.R. had touched him on his "belly

button and pee-pee." G.K. walked J.C. home and notified his

mother of the accusation.

J.C.'s mother reported the incident to the local police,

which referred the matter to the Hudson County Prosecutor's

Office.

The Detective's Videotaped Interview with J.C.

Eighteen days later, on July 21, 2014, Detective David

Abromaitis of the Prosecutor's Office interviewed J.C. The

videotaped interview, which took place in a room at the

1 The trial record does not disclose what, if any, special needs appellant may have. He has not argued that he lacked the mental capacity to be culpable for the charged offense.

7 A-2238-14T3 Prosecutor's Office, lasted about fourteen minutes. No other

persons were present, and no "pre-interview" of J.C. was

conducted. During the interview, J.C. repeated his claim that

A.R. had touched his "pee-pee" and other areas of his body while

they were sitting on the bus.

Following the detective's interview of J.C., appellant was

charged in a juvenile delinquency complaint with acts which, if

committed by an adult, would constitute second-degree sexual

assault, N.J.S.A. 2C:14-2(b). The State moved to admit J.C.'s

statements to G.K. and the detective under the tender-years

hearsay exception, N.J.R.E. 803(c)(27).2 The defense filed

opposition, and the assigned Family Part judge conducted a

hearing pursuant to N.J.R.E. 104, as required under the tender-

years exception, to determine the admissibility of the child

victim's statements. In particular, the Rule 104 hearing

focused upon the hearsay exception's admissibility requirement

that "on the basis of the time, content and circumstances of the

statement there is a probability that the statement is

trustworthy[.]" N.J.R.E. 803(c)(27).

2 At our request, counsel have furnished us with the parties' motion briefs from the trial court, which reveal the positions they took below.

8 A-2238-14T3 The Rule 104 Hearing

Detective Abromaitis was the State's main witness at the

Rule 104 hearing. He had been employed by the County

Prosecutor's Office for over six years, during which time he had

worked on hundreds of sexual assault investigations. The

detective stated that he had received special training on the

protocol for conducting interviews with child victims.

In tandem with the detective's testimony, the trial judge

was provided with a transcript of J.C.'s recorded interview.

The video was played at the hearing in court in the presence of

both counsel.3

The video reflects that when J.C. walked into the interview

room, the detective asked him, "What's up?", to which J.C.

almost immediately responded, "[A.R.] touched my pee-pee." The

detective then queried "Who?", to which J.C. replied, "[A.R.]

touched my pee-pee . . . he touched my belly button . . . he

touched my belly button [and] everybody all laughed at me."

Later in the interview, the detective asked J.C. where he

was when the touching happened. Initially, J.C. stated that he

did not know. The location was then clarified with the

3 We have viewed the video recording as part of the record on appeal, as well as the associated transcript, which is not disputed as to its accuracy.

9 A-2238-14T3 following exchange, through the use of leading questions by the

detective:

Q: Okay . . . can you tell me where you were when [A.R.] touched you? Were you at home?

A: Yes I was at home[.]

Q: Or were you somewhere else?

A: Somewhere else (inaudible).

Q: So where were you? When you say somewhere else, where's somewhere else?

A: I don't know.

Q: Okay . . . were you on the bus?

A: Yes . . . yes.

Q: Yes . . . Okay and where was [A.R.]?

A: He was on the bus with me[.]

Q: He was with you? Okay[.]

A: Yes[.]

When asked by the detective with whom he lives, J.C.

responded that he lives with his mother, his friend, dragons,

and "Chowder and Clarence."4 J.C. stated that A.R. touched him

on his "pee-pee," eye, hand, eyebrows, nose, mouth, and legs.

Using a working doll presented by the detective, J.C.

4 It is undisputed that J.C. does not live with a friend but does live with his mother and an older brother. J.C.'s references to "Chowder" and "Clarence" are apparently to cartoon characters.

10 A-2238-14T3 demonstrated where A.R. had touched him on his "pee-pee." The

detective did not ask J.C. at any point during the interview if

he understood the difference between the truth and a lie.

According to the detective, J.C.'s "spontaneous utterings

of the assault" were common in such child victim interviews. On

cross-examination, the detective acknowledged that, although

J.C. had stated that the inappropriate touching occurred while

being seated, J.C. demonstrated with the working doll that the

touching instead had occurred with his pants fully down.

The prosecution also elicited testimony from J.C.'s

mother's cousin, G.K., who had picked J.C. up from the bus stop.

According to G.K., she observed A.R., who she identified in the

courtroom, holding J.C.'s hand after they got off the bus. She

recalled that while walking with her across the street, J.C.

said, "[A.R.] touched [my] belly button and pee-pee." G.K. then

walked J.C. home and notified his mother of the incident.

The defense countered at the Rule 104 hearing with expert

testimony from a forensic psychologist with experience in

techniques used in interviewing child victims. The expert

opined that the detective's interview of J.C. did not comport

with professional standards. According to the expert, the

detective should have made an assessment of J.C.'s ability to

11 A-2238-14T3 "distinguish between the truth and a lie" and the child's

understanding of the "burden to tell the truth."

The defense expert perceived a "red flag" raised by J.C.'s

apparent inability to distinguish fantasy from reality, such as

when J.C. stated in the interview that he lived with cartoon

characters. He found this particularly significant in light of

J.C.'s developmental capacity equivalent to that of a three-

year-old child. The expert also criticized the detective for

"selectively investigating [the child's] statements" by using

leading questions, and by tending to pursue only the child's

inculpatory statements that conformed to a theory of sexual

assault, but not statements which undercut that theory.

The Judge's Findings of Admissibility Under N.J.R.E. 803(c)(27)

After considering these matters, the judge preliminarily

ruled that the statements J.C. made to G.K. after getting off of

the bus and to the detective during the interview were both

admissible under N.J.R.E. 803(c)(27). Tracking the requirements

of that hearsay exception, the judge found that "there is a

probability that [each] statement is trustworthy on the basis of

the time[,] content[,] and circumstances of the statement[s]."

The judge acknowledged that the detective did ask a few

leading questions, but found those questions were not a

12 A-2238-14T3 "decisive determining factor" in the analysis of

trustworthiness. The judge also found that the detective's

failure to delve into J.C.'s ability to understand the

difference between telling the truth and a lie did not

"automatically" render the child's statements untrustworthy.

The judge was unpersuaded by the defense expert's

criticisms of the interview. Instead, the judge concluded that

"the departures, if any, from what would be a strict protocol or

strict standards of questioning . . . did not cause this

[child's] statement to [the detective] to become untrustworthy."

With respect to J.C.'s initial statement to G.K. after

getting off the bus, the judge found significant that the

assertion was "completely spontaneous." Appellant had failed to

show anything "that would render that statement not to be

probably trustworthy in the totality of the circumstances."

As a caveat, the judge did state that his ruling to admit

J.C.'s hearsay statements was expressly "conditioned upon the

alleged victim being available to testify."

The Judge's Findings of J.C.'s Incompetency

Following her opening statement, the prosecutor called J.C.

to the stand. The judge noted that defense counsel had filed a

pretrial motion challenging J.C.'s competency. Consequently,

13 A-2238-14T3 the judge conducted a preliminary examination of J.C. to assess

his competency before the child's trial testimony proceeded.

During the preliminary examination, the judge posed a

series of questions to J.C., supplemented by a few more asked by

the prosecutor. The questions delved into J.C.'s ability to

discern truth from lies, and whether J.C. understood the

importance of telling the truth.

Many of J.C.'s responses to these questions posed in the

courtroom reflected his confusion between reality and fantasy,

and a lack of recognition of his obligation to tell the truth.

For example, J.C. agreed that it would be the "truth" to call a

"red" toy and a "red" tie "green". He also agreed that if he

were told a "dinosaur" was a "chicken," that would also be the

"truth". When asked whether it would be the truth or a lie to

call the courthouse a McDonald's, J.C. ambiguously responded,

"Yes." He stated several times that he did not know what the

truth is, or know the difference between the truth and a lie.

He denied knowing whether he was supposed to tell his mother the

truth or a lie. He also nonsensically referred to the truth as

a "dinosaur" and "chicken butt."

Given these problematic responses, the judge ruled that

J.C. was not competent to testify. But in light of the proviso

within N.J.R.E. 803(c)(27)(c) permitting tender-years hearsay

14 A-2238-14T3 statements despite a child declarant's incompetency, the judge

allowed the prosecutor to proceed with J.C.'s direct

examination.

The prosecutor attempted on direct to focus J.C.'s

attention to the alleged incident on the school bus, but she was

thwarted in that endeavor by J.C. stating several times that he

had actually walked to summer school. At that point, the

prosecutor requested that the judge allow her to recall J.C. to

the stand on another day, because the child had not taken his

medication for several hours.

Defense counsel objected to the State being given a second

attempt to establish J.C.'s competency. The judge overruled the

objection, exercising his discretion to oversee court

proceedings under N.J.R.E. 611. Among other things, the judge

noted that J.C. has "several types of diagnosed mental health

disabilities," and that since the State had not requested J.C.

to testify via a closed-circuit video, there were "too many

people in the courtroom" when J.C. first testified.

The Resumption of the Trial and the Court's Renewed Finding of J.C.'s Incompetency

The case resumed several days later. J.C. was recalled to

the stand by the prosecutor, who renewed an attempt to establish

the child's competency. However, J.C. again showed difficulty

15 A-2238-14T3 discerning truth from fiction, stating that it would be "right"

to call a spider a flower, and to call a red spider black.

Revealingly, J.C. also answered "no" when he was asked, "if you

tell mommy something that did not happen, would you get in

trouble?"

Despite J.C.'s continued shortcomings as a witness, the

prosecutor pivoted to the substantive allegations of this case.

She asked the child, "Did anything happen this summer on the

school bus?" J.C. replied in the affirmative, elaborating that

"[A.R.] touched me." J.C. added that A.R. had touched his "pee-

pee" and "butt." He then identified A.R. in the courtroom as

the person who had touched him.

Defense counsel conducted a brief cross-examination of J.C.

During that questioning, J.C. reiterated that appellant had

touched his "pee-pee" and "butt," as well as "all over." J.C.

agreed that he sat with the "small kids" near the front of the

bus. J.C. also agreed that there was another child on the bus

who had the same first name as appellant.

At that point, in light of J.C.'s continued problems with

exhibiting a grasp of the basic concepts of truth-telling, the

trial judge reiterated his earlier finding that the child was

not competent to testify. The judge amplified his reasoning as

follows:

16 A-2238-14T3 My decision with regard to the issue of competency is that the witness was not competent. And I'm going to state now for the record my reasons why I'm saying that, but there are three elements of the issue to determine the issue of competency.

Number one is that the Court must be satisfied that the witness, in this case the child, understands the difference between right and wrong. I think that some of the answers that [J.C.] gave do indicate that he knows the difference between right and wrong[,] although there were some answers also that it was not clear that he knew that difference. I think he answered the questions truthfully but there were a couple of answers that he gave -- for example, he stated that the spider -- and, by the way, as he was answering questions, he had a toy spider which was like about more or less three inches in diameter and the top of the spider was red but the part underneath the spider and the legs were grey colored. There were a couple of times where he gave answers which were not clear, whether he knew the difference between the right and the wrong answer.

For example, the assistant prosecutor asked if she said that the spider was black, would that be right, I think he said right to that, and that's an example of a couple of times when his answers were not consistently accurate in reflecting right versus wrong. However, I do think that most of the times he did seem to answer the questions correctly.

Now, the other aspect of the inquiry as to competency is that the witness must know that to tell the truth is right. That aspect, I'm not sure. I was not satisfied that the witness knows that to tell the truth is right in the moral sense of the

17 A-2238-14T3 word right. While I think that most of the answers were truthful, I am not satisfied that he knew that to tell the truth is right and many, if not most, of the answers that he gave that have to do with that did not reflect an understanding that he knows that to tell the truth is the right thing.

And thirdly, the witness, in this case the child, alleged victim, must understand that he or she will be punished if he or she lies to the Court. There was no answer -- I don't -- I think there was only like one or two questions in that regard and the answers that the witness gave did not show that he knew that if he lied, that there would be a consequence, a negative consequence to him.

So of the three aspects that the Court must be satisfied of, I think that -- I think he was for the most part truthful. However, I'm not satisfied that his answers indicated that he knew that to tell the truth was right and certainly not at all that he understood that he would be punished or that there would be consequences if he lied to the Court. So, for those reasons, I do find that the witness was not competent.

[(Emphasis added).]

After the judge sustained appellant's objection to the

State calling J.C.'s mother as an impromptu witness, the

prosecution rested. The defense then moved for dismissal based

on (1) the fact that the alleged victim lacked competency and

was therefore unavailable; and (2) a claimed insufficiency of

the evidence. The judge rejected both arguments. In doing so,

the judge noted that, although J.C. lacked competency as a

18 A-2238-14T3 witness, he had been "consistent" with respect to his

allegations of improper touching, both in his earlier hearsay

statements and in the courtroom.

The Defense Proofs

The defense called three witnesses: the driver and the

aide who were on the bus on the day in question, and a

transportation liaison employed by the board of education. The

aide testified that she was responsible for seating the "small

kids in the front and the big kids . . . in the back[.]" She

explained that she sits in the middle of the bus, so she can

keep an eye on both the small and big kids and keep them

separated. The aide asserted that she did not notice anyone

pulling another student's pants down on the day in question.

Additionally, no one said anything to her about an incident

occurring that day.

The bus driver similarly testified that he did not notice

anything unusual taking place that day. According to the

driver, A.R. would be considered one of the "[b]ig kids," and

that the students were seated on the bus by height.

Lastly, the transportation liaison testified that there

were two children with appellant's first name on the bus, one

who was enrolled in elementary school and the other in high

school. The liaison agreed that the "whole entire [bus] trip

19 A-2238-14T3 [was] really very short," approximately twenty to thirty

minutes.

The Court's Adjudication of Delinquency

Following summations, the trial judge issued an oral

opinion concluding that the State had met its burden of proof,

and adjudicating A.R. delinquent. In particular, the judge

determined that A.R. had "touched the victim on the victim's

penis underneath his clothes."

As part of his fact-finding, the judge adopted J.C.'s

specific assertion to the detective that, when the touching

occurred, "other children laughed at [him]," even though that

particular claim had not been repeated in J.C.'s courtroom

testimony. The judge rejected the defense's suggestion of

mistaken identity, finding that although "there may have been

another minor on the bus also named [A.] . . . the juvenile in

the courtroom was the one identified by both [G.K.] and by the

victim."

Reflecting again on J.C.'s credibility, the judge repeated

his earlier finding that the boy was "consistent" with his

account, even though he was not competent to testify. On the

whole, the judge determined that J.C.'s testimony about the

incident on the bus was truthful, "given the consistency of

20 A-2238-14T3 everything that the victim said right after the incident and

[his] statement to the detective and in this courtroom."

As a disposition for appellant's offense, the judge placed

him on a two-year period of probation. The two years were

designated to run concurrently with another probationary term

that A.R. was already serving for another juvenile offense. The

judge also required that A.R. be admitted into a program where

he could receive sex offender treatment.

The Appeal and the Amici

A.R. has raised the following issues on appeal:

POINT ONE

THE IMPROPER ADMISSION OF THE CHILD'S UNRELIABLE OUT-OF-COURT STATEMENT REGARDING ALLEGED SEXUAL ABUSE DENIED THE JUVENILE THE RIGHT TO CONFRONT WITNESSES AND THE RIGHT TO DUE PROCESS OF LAW AND A FAIR ADJUDICATION PROCEEDING.

POINT TWO

THE COURT ERRED IN BASING THE ADJUDICATION OF DELINQUENCY UPON THE VICTIM'S TESTIMONY WHERE THE COURT FOUND THE VICTIM INCOMPETENT TO TESTIFY.

POINT THREE

BECAUSE J.C. WAS FOUND INCOMPETENT AS A WITNESS, HE WAS NOT AVAILABLE FOR MEANINGFUL CROSS EXAMINATION, AND THUS, ADMISSION OF HIS HEARSAY STATEMENT VIOLATED THE CONFRONTATION CLAUSE. (Not Raised Below).

21 A-2238-14T3 POINT FOUR

THE ADJUDICATION OF DELINQUENCY MUST BE REVERSED BECAUSE THE EVIDENCE DID NOT ESTABLISH THE JUVENILE'S GUILT OF SEXUAL ASSAULT BEYOND A REASONABLE DOUBT.

After the parties filed their appellate briefs, we invited

two amici to participate: the Attorney General and the John J.

Gibbons Fellowship in Public Interest and Constitutional Law

(the "Gibbons Fellowship"). We extended those invitations

because of appellant's constitutional challenge to the

incompetency proviso in N.J.R.E. 803(c)(27), and also in light

of the most recent Confrontation Clause jurisprudence emanating

from the United States Supreme Court.5 The amici graciously

accepted our invitations, providing helpful briefs and oral

arguments on the important issues before us.

In its amicus brief and at oral argument, the Attorney

General has agreed with the prosecutor that the incompetency

proviso is constitutional under the Confrontation Clause,

5 The significance of the constitutional issue has been underscored by the observation in a leading New Jersey treatise on evidence law, stating that "[i]t is unclear, given the New Jersey Supreme Court's rejection of Subsection (c)(ii) [of N.J.R.E. 803(c)(27)] based on Crawford, whether a criminal defendant's rights under the Confrontation Clause are sufficiently protected" under the proviso within the rule deeming incompetent child witnesses to be "available" to testify. See Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, ("Biunno") comment 6 on N.J.R.E. 803(c)(27) (2016).

22 A-2238-14T3 assuming we reach that issue, and has joined with the prosecutor

in urging affirmance of this juvenile disposition. The Gibbons

Fellowship, meanwhile, has argued that J.C.'s hearsay statements

were improperly admitted under N.J.R.E. 803(c)(27) and that,

even if the hearsay is deemed admissible under the evidence

rules, appellant's confrontation rights were violated because

his counsel had no meaningful opportunity to cross-examine this

incompetent child in court. The Gibbons Fellowship has thus

joined with appellant's counsel in urging reversal.

II.

A.

The Genesis of the Tender-Years Exception

The tender-years hearsay exception, presently codified at

N.J.R.E. 803(c)(27), was crafted by our State Supreme Court in

1988 in

. The Court sought in D.R.

to balance, on the one hand, the difficulties of young child

victims testifying in court about acts of alleged sexual abuse,

and, on the other hand, the interests of criminal defendants and

juveniles in effectively confronting and rebutting such

allegations as part of their right to a fair trial.

In D.R., the defendant was charged with and convicted of

sexually abusing his granddaughter.

. The State's

case was primarily based on the defendant's confession, which he

23 A-2238-14T3 later repudiated, and the out-of-court statement of the child

victim, who was age three at the time of trial and found

incompetent to testify.

. The trial court

determined after a hearing that the child victim had not

adequately shown the ability at her age "to deal with the

concept of lying and telling the truth."

This court

found on appeal that the victim's out-of-court statements were

not admissible under any of the recognized hearsay exceptions.

See State v. D.R.,

(App. Div. 1986).

However, we also perceived the need for the adoption of a new

exception to the evidence rules allowing hearsay from child

abuse victims to be admitted in certain circumstances, where

there are "sufficient indicia of reliability to justify

admission[.]"

.

On review, the Supreme Court reversed our decision and

remanded the case. D.R., supra,

. While the

Court agreed with the need for a special hearsay exception for

child sexual abuse victims, it also found that "such a

fundamental change in the hearsay rule solely by judicial

decision is inconsistent with the procedure set forth in the

Evidence Act [of] 1960, that involves collaboration among all

three branches of government."

(citing N.J.S.A. 2A:84A-33

to -45).

24 A-2238-14T3 Having acknowledged the other branches' collaborative role

in adopting new evidence rules, the Court in D.R. went on to

discuss at length the policies favoring a "tender-years" hearsay

exception. The Court recognized that significant proof problems

can arise in child sexual abuse prosecutions, because "testimony

by the victim is often the indispensable element of the

prosecution's case."

. The Court further recognized

that the courtroom setting is generally "intimidating to

children and often affects adversely their ability to testify

credibly."

.

The Court noted that such evidentiary challenges "would be

alleviated by a modification of the hearsay rule that addresses

the admissibility of out-of-court [child] victim statements[.]"

. As the Court recognized, hearsay statements by

young sexual assault victims are often "highly credible because

of [their] content and the surrounding circumstances."

. On the other hand, the Court likewise acknowledged "the

substantial constitutional interests of defendants in such

proceedings."

.

Mindful of these competing interests of the State and of

defendants, the Court set forth in Appendix A to its opinion in

D.R. an amendment to the Rules of Evidence creating a tender-

years exception.

. In shaping that new proposed

25 A-2238-14T3 rule, the Court considered recommendations on the subject

developed by the American Bar Association ("the ABA

Recommendations"),

, a host of law review articles

examining child sexual abuse prosecutions,

at 359 n.3, and

statutes and case law from other jurisdictions addressing the

subject.

.

Overall, the Court found "thoroughly persuasive" the

reasoning underlying the ABA Recommendations, the laws of

several other states, and the analysis of many commentators that

supported the adoption of a hearsay exception allowing the

admission, in circumstances where a probability of

trustworthiness is shown, of a young child's out-of-court

statement concerning acts of sexual abuse.

. The

Court found such a new hearsay exception, when combined with

methods to allow child victims to testify at trials through

closed-circuit video, "will enable the judicial system to deal

more sensibly and effectively with the difficult problems of

proof inherent in child sex abuse prosecutions."

The Incompetency Proviso

One of the key facets of the tender-years exception drafted

by the Court in D.R. is the proviso within the final portion of

N.J.R.E. 803(c)(27), the focus of this appeal. That proviso

recites that "no child whose statement is to be offered in

26 A-2238-14T3 evidence pursuant to this rule shall be disqualified to be a

witness in such proceeding by virtue of the requirements of

[N.J.R.E.] 601."6

The Court recommended this proviso after concluding, as a

matter of policy, that a competency disqualification should not

apply to the proposed hearsay exception.

. In this

regard, the Court noted that, as a practical matter, "[a]

finding that a child-victim is incapable of understanding the

duty . . . to tell the truth, and thus incompetent, is difficult

to reconcile with a ruling that admits into evidence, insulated

from cross-examination, the out-of-court statements of the same

child made several months prior to trial."

(internal

citations omitted).

On the whole, the Court in D.R. was persuaded by both the

ABA Recommendations and the "growing trend among states . . .

6 N.J.R.E. 601 provides that:

Every person is competent to be a witness unless (a) the judge finds that the proposed witness is incapable of expression concerning the matter so as to be understood by the judge and jury either directly or through interpretation, or (b) the proposed witness is incapable of understanding the duty of a witness to tell the truth, or (c) except as otherwise provided by these rules or by law.

[(Emphasis added).]

27 A-2238-14T3 [to] abolish[] the presumption that a child's incompetent and

[instead] leave[] to the jury the determination of the weight

and credibility of a child's testimony."

. The Court

cited to leading evidence law scholars such as Professors

Wigmore and McCormick, whose treatises favor the admission of

such statements by child witnesses "for what it is worth,"

allowing the weight of their statements to be evaluated by the

trier of fact.

Rather than require young victims of alleged sexual assault

to meet the general threshold for competency under N.J.R.E. 601,

the Court instead fashioned a tender-years exception that would

admit the hearsay declarations if they are specifically found by

the court to have sufficient indicia of probable

trustworthiness.

.7 As the Court made clear, this

trustworthiness limitation is needed to assure "the equally

significant interests of the defendant, who seeks to exercise

7 This "indicia of trustworthiness" concept derives from the United States Supreme Court's prior opinion in Idaho v. Wright,

,

,

(1990). In 2004, in

the Court repudiated Idaho v. Wright and the related test of Ohio v. Roberts,

,

,

(1980), under the Confrontation Clause and replaced it with the present "testimonial" standard.

,

- 65,

. Even so, nothing prevents the "indicia of trustworthiness" standard from continuing to be used as a test of admissibility under state evidence rules, subject to the constraints of the Confrontation Clause.

28 A-2238-14T3 the basic rights of confrontation and cross-examination so

essential to the jury's duty to assess the credibility of

witnesses." Id. at 369.

The Court did temper its approach in D.R. with a caveat

that, if the child of tender years is available to appear at

trial, he or she "should testify . . . in order to afford the

jury an opportunity to assess the child's credibility and to

afford the defendant the right of confrontation and cross-

examination." Id. at 371. In addition, the Court expressly

indicated that it was not considering "the recognition of any

other rights that may be asserted by a defendant in a sexual

abuse prosecution relating to a child victim's out-of-court

statements." Ibid. at n.10 (emphasis added).

Codification and Application of the Exception

Implementing the decision in D.R., the tender-years hearsay

exception was adopted in 1989, and numerically codified at that

time as Evidence Rule 63(33). See also Biunno & Guarini, New

Jersey Rules of Evidence: 1990 Edition 658-59. The language of

Rule 63(33), as enacted, mirrored the Court's proposed language.

See D.R., supra,

.

As part of the comprehensive renumbering and revision of

the entire body of Evidence Rules in 1993, Rule 63(33) was

replaced by N.J.R.E. 803(c)(27). The operative terms of the

29 A-2238-14T3 rule remained substantially the same.8 See N.J.R.E. 803(c)(27);

see also Amendatory Report of the Supreme Court's Committee on

Evidence (May 17, 1993). The only other change in the Rule

occurred in 2005 to eliminate gender-based language. See

Biunno, supra, comment 1 on N.J.R.E. 803(c)(27).

Since the time of the adoption of the tender-years

exception, it has frequently been used in sex crime prosecutions

involving young child victims. Sometimes the courts have found

the child's hearsay admissible under the criteria of the Rule.

See, e.g., State v. T.E.,

, 36 (App. Div.),

certif. denied,

(2001); State v. Delgado,

(App. Div. 2000). In other instances, our

courts have excluded the child's hearsay statement, or have

required a stronger foundation to justify its admission. See,

e.g., State v. D.G.,

(1999) (remanding for

further proceedings as to a child's statements to a relative,

and also excluding the child's statements made during a

subsequent "re-interview"); State v. R.M.,

,

8 During the late 1990s, an amendment to N.J.R.E. 803(c)(27) was proposed, but ultimately rejected, that would have changed the age of the child from a bright-line cutoff of age twelve to a child of "tender age" only. The failed amendment would have also deemed out-of-court statements inadmissible if the child was available to testify competently. See Report of the Supreme Court Committee on the Rules of Evidence 19-22 (1998).

30 A-2238-14T3 516-18 (App. Div. 1991) (remanding for further hearing on the

trustworthiness of a child's statement that a trial court had

excluded under the Rule).

B.

Confrontation Clause Jurisprudence Since Crawford

The application of N.J.R.E. 803(c)(27) has been

substantially affected by the momentous decision of the United

States Supreme Court in

and the series of post-

Crawford decisions construing the Confrontation Clause.9

The Confrontation Clause guarantees an accused the right

"to be confronted with the witnesses against him." U.S. Const.

amend. VI. The recognized objective of the Confrontation Clause

is "to ensure the reliability of the evidence against a criminal

defendant by subjecting it to rigorous testing in the context of

an adversary proceeding before the trier of fact." State v.

Castagna,

(2006) (quoting Maryland v. Craig,

,

,

(1990)). This goal is ordinarily achieved by the opportunity to

9 To date, the cognate language of the Confrontation Clause within the New Jersey Constitution, N.J. Const., art. I, ¶ 10, has been construed coextensively with the federal counterpart. See, e.g., State v. Roach,

(2014); State v. Cabbell,

, 328 n.11 (2011). We therefore apply the same analysis to both appellant's federal and state confrontation arguments.

31 A-2238-14T3 cross-examine witnesses effectively, which is an "essential and

fundamental requirement" of a fair trial. Pointer v. Texas,

,

,

(1965); see also Delaware v. Fensterer,

,

,

(1985); see also State v.

Chun,

(2008).

It is well settled that juveniles charged with offenses

that would be crimes if they had been committed by adults, such

as appellant here, have equivalent rights to a fair trial. See,

e.g., In re Winship,

,

,

(1970). Those rights have been held to

include the right of confrontation. See State ex rel. J.A.,

(2008) (holding that the admission of testimonial

hearsay statements violated a juvenile's "Sixth Amendment right

to confront the witnesses against him").

In Crawford, supra,

,

,

, the Supreme Court construed the historical

intent of the framers of the Confrontation Clause. Sharply

breaking with several of its prior precedents, the Court held

that the Clause bars the admission of "[t]estimonial statements

of witnesses absent from trial" admitted to prove the truth of

the matter asserted, except "where the declarant is unavailable,

32 A-2238-14T3 and only where the defendant has had a prior opportunity to

cross-examine."

Since issuing its seminal opinion in Crawford in 2004, the

Court has further refined these concepts, including the meaning

of the pivotal notion of a "testimonial" statement. In Davis,

supra,

,

,

, the Court delineated what has become known as the "primary

purpose" test for deciding whether or not a declarant's hearsay

statement is testimonial for purposes of Confrontation Clause

analysis. The eight-justice majority in Davis explained that

standard as follows:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

[Ibid. (emphasis added).]

Subsequently, in Michigan v. Bryant,

,

,

(2011), a divided Court further

illuminated the primary purpose test. The majority in Bryant,

except for Justice Thomas in concurrence, concluded that a

33 A-2238-14T3 mortally-wounded shooting victim's statements on the street to

police officers were non-testimonial because the primary purpose

of the conversation was to deal with the ongoing emergency of

the recent shooting and a missing firearm.

,

,

. The

dissenting Justices, meanwhile, concluded that the interview's

primary purpose was to generate evidence for a future

prosecution.

,

,

. The majority in Bryant did clarify that

the "primary purpose" of an officer's conversation with a

declarant is to be evaluated on an objective basis, rather than

turning upon the personal subjective intentions of either the

declarant or the police officers who interviewed him.

,

,

.

Most recently, in Ohio v. Clark, ___ U.S. ___,

,

(2015), the Supreme Court classified as

non-testimonial various hearsay statements that a three-year-old

boy made to his preschool teachers after they had noticed his

eyes looked bloodshot. The boy stated to the teachers that the

defendant, his mother's boyfriend, had injured him.

With the exception of Justice Thomas, who concurred in the

result based on his own personal interpretation of the

Confrontation Clause, all other eight Justices in Ohio v. Clark

34 A-2238-14T3 concluded that the primary purpose of the child's conversation

with his teachers was not "to gather evidence for [the

defendant's] prosecution."

___ U.S. at ___,

,

(Alito, J., majority opinion). See

also

___ U.S. at ___,

,

(Scalia, J., concurring) (noting that the primary purpose

of the child's conversation was "not to invoke the coercive

machinery of the State against [the defendant]"). The Court's

majority opinion underscored that the "first objective" of the

discussion was to protect the child, that it was "informal and

spontaneous," and that it took place "in the informal setting of

the preschool lunchroom and classroom."

___ U.S. at ___,

,

. Consequently, the

child's hearsay statements to his teachers were constitutionally

admissible at trial against the defendant, even though the child

had been found incompetent to testify.

___ U.S. at ___,

,

.

C.

Post-Crawford's Impact in New Jersey

The Supreme Court's jurisprudence in Crawford and its

progeny has had a substantial impact upon criminal and juvenile

prosecutions in our State. See, e.g., State v. Michaels,

(2014) (tracing what our Supreme Court termed the

35 A-2238-14T3 "turmoil over confrontation rights" spawned by Crawford and the

cases applying it).

For example, in

, our

Supreme Court reversed a juvenile's delinquency adjudication for

robbery because the trial court had improperly admitted and

relied upon an unavailable eyewitness's hearsay statement to the

police about observing the robbery and the robber's flight.

Applying the "primary purpose" test of Davis, the Court ruled

that there was no "ongoing emergency" to justify the hearsay's

admission, and that the primary purpose of the eyewitness's

statements to the police was to establish or prove past events

germane to a potential future prosecution.

.

By contrast, in State v. Buda,

(2008), a case

factually similar to what later arose in Ohio v. Clark, a 4-3

majority of our Court held that a battered child's statements to

his mother in the car, and later during his hospital admission

to a Division of Youth and Family Services ("DYFS") worker,

detailing physical abuse by the defendant, were not testimonial.

Hence, the admission of that hearsay did not violate the

defendant's confrontation rights.

In Buda, the Court majority ruled that the primary purpose

of the hearsay conversations was not to gather evidence for a

future prosecution.

. With respect to the DYFS

36 A-2238-14T3 worker's interview, the majority was persuaded that the worker

was merely "gathering data in order to assure a child's future

well-being."

.10 However, the majority in Buda

cautioned that a child's statements about a defendant's wrongful

acts might be testimonial if the DYFS worker functioned during

such an interview "predominantly as an agent/proxy or an

operative for law enforcement in the collection of evidence of

past crimes for use in a later criminal prosecution."

.

The Cross-Examination Right

Our State Supreme Court has also carefully applied a key

corollary principle of Crawford, which instructs that the

Confrontation Clause does not prohibit the use of a declarant's

prior testimonial statements, so long as "the [declarant]

appears for cross-examination at trial[.]"

n.9,

n.9,

n.9. The Court has construed that appearance requirement to

connote a right to cross-examine the declarant.

10 Justice Albin and two other justices dissented in Buda as to the child's hearsay statements to the DYFS worker, finding that the dual primary purposes of that interview included an objective "to elicit information about a possible crime." Id. at 318 (Albin, J., dissenting).

37 A-2238-14T3 For instance, in State v. Nyhammer,

(2009),

the Court upheld the trial court's admission of a videotaped

police interview of a nine-year-old child who accused the

defendant, her uncle, of sexual assault. The Court readily

found that, based on Crawford, "there is no question that [the

child's] videotape statement – given to a law enforcement

officer investigating a crime – constitute[d] testimonial

hearsay for Sixth Amendment purposes."

. However,

the Court also found that the defendant in Nyhammer had not been

denied his rights of confrontation because his counsel had

received the opportunity to attempt to cross-examine the child

when she took the stand at trial.

.

Even though the child victim in Nyhammer had been unable on

direct examination by the prosecutor to repeat the "core

accusations" detailing the defendant's assaultive conduct, the

Court found that defendant's counsel had made a tactical

decision to refrain from cross-examining the child about those

allegations.

. The Court reasoned that "[h]aving

chosen that strategic course . . . defendant cannot now claim

that he was denied the opportunity for cross-examination."

.

In contrast to the situation in Nyhammer, our Court in

, reversed the defendants'

38 A-2238-14T3 convictions in a homicide case, in which the trial court had

admitted hearsay statements against them made by an eyewitness

when he was interviewed by the police. As in Nyhammer, the

Court readily determined that a right of confrontation applied.

In fact, the State did not dispute in Cabbell that one of the

witness's statements during the police interview was

"testimonial."

. The sole Sixth Amendment issue in

Cabbell was whether the defendants' confrontation rights had

been honored because their counsel had been provided with a

chance to cross-examine the eyewitness at a Rule 104 preliminary

hearing before the trial judge.

The Court majority ruled in Cabbell that defense counsel's

cross-examination of the declarant at the hearing before trial

was insufficient to comply with the Constitution, and that the

defendants had been deprived of their rights of confrontation

because the witness was never produced before the jury, despite

defense counsel's request that she so appear at that later

proceeding.

. The trial judge had denied the request

because the witness had been resistant to testifying.

. The majority stressed that a trial court "has no authority

to deny defendants their constitutional right of confrontation

merely because it believes that cross-examination will be of

little use."

.

39 A-2238-14T3 On the other hand, the majority in Cabbell further noted

that a defendant has no carte blanche right to cross-examine a

witness "in whatever way, and to whatever extent, the defense

might wish."

(quoting

,

,

). Instead, a defendant

only must be given the "opportunity to engage in 'otherwise

appropriate cross-examination,'" with no guarantee that the

cross-examination will be effective.

(quoting Delaware v.

Van Arsdall,

,

,

(1986).

Crawford Applied to the Tender-Years Rule

The Court instructively applied these Confrontation Clause

principles in a tender-years context in State v. Coder,

(2009). The defendant in that case was convicted of

committing sexual assault of a three-year-old child.

. The assault occurred while the defendant and the victim

were in the basement of her apartment building, along with the

child's eleven-year-old friend.

. The friend who

witnessed the assault immediately ran upstairs and notified the

victim's mother.

. The mother then spoke with her

frightened daughter, who told her that the defendant had touched

her vagina and buttocks.

The State moved before trial to

admit the daughter's hearsay statement to her mother, relying

40 A-2238-14T3 upon N.J.R.E. 803(c)(27).

. At an ensuing Rule 104

hearing, the daughter, then age four, was unable to recall or

speak about the incident.

The daughter did not testify

at the defendant's trial, but her hearsay statement was admitted

over objection.

.

The Supreme Court held in Coder that, because of her

inability to render a courtroom account of the incident for the

jury, the child victim was "unavailable" to testify.

. Hence, in order to admit the victim's hearsay, the State

was required to present under N.J.R.E. 803(c)(27)(c)(ii) other

"admissible evidence corroborating the act of sexual abuse[.]"

. Because the older child who had witnessed the

incident provided such corroboration, the Court found the

victim's hearsay admissible under the tender-years exception.

.

Notably, the Court found no violation of the defendant's

right of confrontation under the Crawford doctrine in Coder

because the victim's statements to her mother were not

testimonial.

. Finding the situation comparable to

the child victim's statement to his mother in

, the Court observed that the daughter's account to

her mother about what had happened to her a few minutes earlier

"lack[ed] any indicia that [it] resulted from law enforcement

41 A-2238-14T3 efforts 'to establish or prove past events potentially relevant

to later criminal prosecution.'"

(emphasis added) (citing

,

, 161 L. Ed. 2d

at 237).

A year later, the Court again applied these post-Crawford

principles to the tender-years exception in State v. P.S.,

(2010). There, the trial court admitted into

evidence under N.J.R.E. 803(c)(27) hearsay statements that an

eleven-year-old child had made to a child interview specialist

in a county prosecutor's office. The child told the interviewer

that the defendant had sexually assaulted her on three occasions

several years earlier.

. Because the video equipment

used to record that interview had malfunctioned, the State

instead presented the contents of the child's statements through

the trial testimony of the interviewer.

. The

Supreme Court in P.S. agreed that the child's statements, as

recollected by the interviewer and as buttressed by her written

report, supported the trial court's finding that the statements

were sufficiently trustworthy to satisfy the requirements of

N.J.R.E. 803(c)(27).

.

P.S. then addressed the constitutional issues of

confrontation, applying Crawford's "new rule," which the Court

described as having "entirely changed the Confrontation Clause

42 A-2238-14T3 landscape."

. Although its discussion of the issue

was not extensive, the Court declared that the admissibility of

a child's tender-years hearsay statement, if it is testimonial,

must now be conditioned upon three requirements: (1) the

State's prior notice to defense counsel; (2) a pretrial judicial

finding of trustworthiness; and, most importantly for our

present purposes, (3) a defendant's "opportunity to cross-

examine the child at trial[.]"

(citations omitted).

That third requirement specified in P.S. negates the

State's option under N.J.R.E. 803(c)(27)(c)(ii) to avoid

producing a child who has made testimonial statements for cross-

examination at trial by offering "admissible evidence

corroborating the act of sexual abuse." P.S. signifies that the

State in such testimonial situations can no longer

constitutionally rely upon subsection (ii) of N.J.R.E.

803(c)(27)(c). Instead, to comply with Crawford, the State must

resort to subsection (i), which requires the child to "testif[y]

at the proceeding."11

11 See also Biunno, supra, comment 6 on N.J.R.E. 803(c)(27) (observing that P.S. resolved the "considerable doubt" about the constitutionality of subsection (c)(ii) in the wake of Crawford, now requiring that since "a testimonial statement of an absent witness is subject to the Confrontation Clause," to admit such testimonial statement by a child victim, the child "must be available to testify at trial").

43 A-2238-14T3 P.S. did not address, however, the specific issue of

confrontation presented here, i.e. whether the tender-years

hearsay statements of a child who has been found incompetent to

testify as a witness nonetheless can be admitted against an

accused over objection.

III.

A.

We now consider the heart of the matter. Specifically, we

address whether appellant's constitutional rights of

confrontation were violated by the trial court admitting, over

objection,12 the incriminating statements of J.C., a

12 Although it was not contended in the State's responding brief submitted by the prosecutor, the Attorney General as amicus argues that we should not reach the Confrontation Clause issue because appellant allegedly waived the issue by not expressly invoking the Clause in his arguments to the trial court. We decline to adopt that waiver argument for several reasons. First, an amicus on appeal generally should not present new issues that were not raised by the parties. State v. Lazo,

(2012). Second, although appellant's trial counsel did not assert the words "Confrontation Clause" or "Crawford" in her motion briefs and arguments, there is no doubt that she objected to the admission of J.C.'s out-of-court statements, and repeatedly complained about her inability to confront and cross- examine J.C. effectively because of the child's incompetency. The clear thrust of trial counsel's continuing objection implicated a claimed denial of a right of confrontation. Cf. State v. Bass,

(2016). Third, it is unlikely that the trial record here would have been materially different had defense counsel explicitly argued that J.C.'s hearsay statements were "testimonial" under Crawford. In fact, as we discuss, infra, the prosecutor specifically asked the detective (continued)

44 A-2238-14T3 developmentally-disabled child whom the trial court twice found

incompetent to testify. For the reasons that follow, we agree

that the trial court deprived appellant of those vital rights in

certain respects.

Although courts generally prefer to steer away from

constitutional questions if their resolution is not essential to

a case, the confrontation issues posed by appellant here are

appropriate for decision. For one thing, appellant concedes in

his brief that the hearsay statements of J.C. were admissible as

a matter of state evidence law under N.J.R.E. 803(c)(27).13

(continued) on redirect examination what his purpose was in interviewing J.C. Fourth, appellant's trial counsel could not have been expected to anticipate the United States Supreme Court's opinion in Ohio v. Clark, the Court's most recent clarification of Confrontation Clause doctrine. Fifth, the present appeal provides a well-briefed suitable opportunity to resolve an important unsettled question of constitutional significance about the validity of the incompetency proviso in N.J.R.E. 803(c)(27). 13 The Gibbons Fellowship does not join in that concession and instead argues that, as a matter of statutory interpretation, the incompetency proviso in N.J.R.E. 803(c)(27)(c) only applies to subsection (ii) of the Rule and not to subsection (i) when the child victim testifies in court. We need not reach that argument raised by solely this amicus, for the same reasons that we need not reach the waiver argument raised for the first time by the amicus Attorney General. See

. In any event, we note in passing that the Gibbons Fellowship's suggested construction of the proviso appears to clash with the overall design and objectives of the evidence rule set forth by the Court in D.R., supra. The argument for (continued)

45 A-2238-14T3 Appellant instead focuses his arguments for exclusion on

constitutional grounds of the denial of confrontation and due

process. Moreover, the Court has made very clear that the

admissibility of hearsay under state evidence rules, even if

they are firmly rooted in the law and in practice, can be

trumped by Confrontation Clause principles. See

,

,

.

In appraising the constitutionality of the tender-years

exception's incompetency proviso, we remain mindful of the

general presumption of constitutionality that applies to all

legislation, including our evidence rules. "A statute is

presumed to be constitutional and will not be declared void

unless it is clearly repugnant to the Constitution." Newark

Superior Officers Ass'n v. City of Newark,

(1985); see also State v. Buckner,

(App.

Div. 2014), aff'd,

(2015). For the reasons we now

discuss, we conclude that appellant has met his heavy burden to

prove such constitutional infirmity of the incompetency proviso,

(continued) limiting the proviso to subsection (ii) also does not mesh with the punctuation used within the rule, as the proviso appears immediately after both subsections (i) and (ii) and is preceded by a semicolon rather than by a comma. Further, the unpublished opinion cited by the Gibbons Fellowship as support for its construction is not binding. R. 1:36-3.

46 A-2238-14T3 at least when the proviso is applied to a child's hearsay

statements made in a testimonial setting.

B.

The record in this case strongly supports appellant's

contention that J.C.'s statements during his recorded interview

with Detective Abromaitis were, as a matter of constitutional

law, testimonial in nature. The manifest, and perhaps singular,

"primary purpose" of the interview session was to gather facts

about a past sexual offense that could be used in a future

prosecution.

When specifically asked by the prosecutor on redirect

examination what was the purpose of the interview, the detective

responded, "We were informed that [J.C.] had made a disclosure

that . . . a boy named [A.] touched his penis on the school bus

on the way home from school." Although the State now suggests

that perhaps the police interview was primarily conducted to

assure that A.R. would not ride the bus again with J.C. or other

potential child victims, that hypothesized alternative purpose

notably was not mentioned in the detective's response. Indeed,

the school district presumably was able to keep A.R. away from

other children on its own without being commanded to do so by

law enforcement.

47 A-2238-14T3 The detective's role as an interviewer at the prosecutor's

office, some eighteen days after the incident, is fundamentally

different from the DYFS worker who responded to the report of

abuse at the hospital in Buda. The context here is instead akin

to the law enforcement interviews of the children in Nyhammer,

Cabbell, and P.S., all of which were deemed testimonial in

nature.

We are cognizant that the majority opinion of Justice Alito

in Ohio v.

as well as the concurring opinion of

Justice Scalia in that case, discuss historical sources

concerning the common law practice of admitting hearsay

statements by young children in criminal cases. Those

historical sources cited by the Justices indicate that, prior to

the 1789 adoption of the United States Constitution, courts

often allowed hearsay statements of young child victims to be

admitted at criminal trials, despite the fact that such children

were not generally considered "competent" to testify because of

their age.

___ U.S. at ___,

,

.

We appreciate this historical context, which Justice Alito

characterized as support that "fortifie[d]" the Court's

conclusion that the child's statements in Ohio v. Clark were not

testimonial.

___ U.S. at ___,

, 192

48 A-2238-14T3 L. Ed. 2d at 316. Notably, however, the majority in Ohio v.

Clark stopped short of declaring that statements by young

children can never be testimonial. Nor did the Court hold that

the statements of such young children to law enforcement

officials, in particular, cannot have the objective primary

purpose of aiding a future prosecution.

In fact, the majority opinion in Ohio v. Clark repeatedly

contrasted the child's statements to his teachers in that case

with statements made to law enforcement personnel.

___

U.S. at ___,

,

. Justice

Alito specifically noted that the teachers' interactions with

the child were "nothing like the formalized station-house

questioning in Crawford or the police interrogation and battery

affidavit in Hammon[ v. Indiana.]"

___ U.S. at ___,

,

.14 Justice Alito further

elaborated on this point, contrasting the child's statements to

his teachers with statements that are given by children to an

investigatory police officer:

Finally, although we decline to adopt a rule that statements to individuals who are not

14 Hammon is a consolidated case with Davis, in which the Court held that the police interrogation of a victim of domestic violence, after responding to the victim's residence and after the emergency had subsided, was a testimonial context.

,

,

.

49 A-2238-14T3 law enforcement officers are categorically outside the Sixth Amendment, the fact that [the victim] was speaking to his teachers remains highly relevant. Courts must evaluate challenged statements in context, and part of that context is the questioner's identity. Statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial that statements given to law enforcement officers. It is common sense that the relationship between a student and his teacher is very different from that between a citizen and the police. We do not ignore that reality. In light of these circumstances, the Sixth Amendment did not prohibit the State from introducing [the victim]'s statements at trial.

[Id., ___ U.S. at ___,

,

(emphasis added) (internal citations omitted).]

Similarly, Justice Scalia's concurrence in Ohio v. Clark,

joined by Justice Ginsberg, pointed out that "[t]he statements

here [by the child to his teachers] would not be testimonial

under the usual test applicable to internal police

interrogation."

___ U.S. at ___,

,

(Scalia, J., concurring) (emphasis added).15

15 We need not consider Justice Thomas's separate opinion, and his individualized analysis of whether the child's out-of-court declarations were provided in a context of sufficient "solemnity" to qualify as testimonial.

___ U.S. at ___,

,

(Thomas, J., concurring).

50 A-2238-14T3 The concurrence also underscored that the child was being "asked

questions by his teachers at school," a place "far from the

surroundings adequate to impress upon a declarant the importance

of what he is testifying to."

___ U.S. at ___,

,

(Scalia, J., concurring) (emphasis

added).

Here, in contrast with the situation in Ohio v. Clark, the

interview room at the prosecutor's office where J.C. was

questioned by the detective—although structured in an atmosphere

intended to be friendly to a child—objectively was a setting

created with the obvious goal of eliciting, recording, and

preserving a statement that might be used at a future trial, if

J.C. repeated his earlier incriminating accusations during the

session.16 The use of anatomical dolls, diagrams, and video

recording for the detective's questioning all are indicative of

such a primary purpose.

16 The Supreme Court of Iowa has likewise recently noted the comments expressed within the Court's opinions in Ohio v. Clark signal a constitutional distinction between statements made by young children during police interviews, and statements made to other persons not acting in a law enforcement capacity. See In the Interest of J.C.,

(Iowa 2016). Notably, the Iowa Justices in J.C. unanimously agreed that hearsay statements made by a young child to a "forensic interviewer" during a recorded interview at the behest of law enforcement officials comprised "testimonial" statements that triggered a right of confrontation.

.

51 A-2238-14T3 Our conclusion treating J.C.'s recorded statements to

Detective Abromaitis as testimonial is consistent with the

instructive Confrontation Clause analysis performed by the

Indiana Court of Appeals in Purvis v. State,

(Ind. Ct. App. 2005). The defendant in Purvis was convicted of

child molestation, based in part upon incriminating statements

made by the ten-year-old victim.

. The victim first

made the allegations to his mother and her boyfriend, and then

repeated the allegations to a police officer less than two hours

later.

.

Applying the "primary purpose" test, the Indiana appellate

court in Purvis held that the child's statements to his mother

and boyfriend were not testimonial because they were not

elicited "for the purpose of preparing to prosecute anyone but

rather to gain information about what happened, find out if [the

child] was harmed, and remedy any harm that had befallen him."

. By contrast, the child's later statements to the

police officer were deemed by the Indiana court to be

testimonial, even though the police interview was not an

"interrogation" in the formal sense of that term.

.

The court in Purvis found it significant that, at the time

of the officer's questioning, he knew of the child's allegations

against the defendant and knew that he was investigating a child

52 A-2238-14T3 molestation.

The court also underscored that the officer

had "repeated his questioning to [the child] multiple times for

the purpose of obtaining evidence to be used to prosecute [the

defendant]."

Given this context, Purvis concluded that

"[t]here can be no question that the information [the child]

provided to [the officer] could be used in any potential

prosecution, and a primary purpose of the questioning was to

obtain information that could be used in [such] a prosecution."

The court was therefore satisfied that, under the

"specific circumstances" presented, the child's interview with

the police officer was testimonial, and thus triggered the

defendant's rights of confrontation.

Other state courts have reached similar conclusions. See,

e.g. Bobadilla v. Carlson,

(D. Minn.

2008) (finding that "[t]o hold that a young child's statement

during a police interrogation is 'nontestimonial' because of the

age of the declarant would require carving out an exception to

Crawford's repeated and categorical assertion that statements

taken in the course of police interrogations are

'testimonial'"); State v. Grace,

(Haw. Ct. App.

2005) (similarly finding a police interview of a child to be

"testimonial"); State v. Snowden,

(Md. Ct. App.

2005) (same); State v. Mack,

(Or. 2004) (same).

53 A-2238-14T3 Notably, other than pointing to the historical discussion in

Ohio v. Clark, neither the prosecutor nor the Attorney General's

brief have cited to us a reported case from another jurisdiction

that has treated a recorded interview conducted by law

enforcement officials with a child victim of alleged sexual

assault as non-testimonial.

We thus hold that the statements made here by J.C. to

Detective Abromaitis were testimonial. The hearsay statements

could not be admitted against appellant at trial without his

counsel having a constitutionally-sufficient opportunity for

cross-examination. The same is true of J.C.'s testimony at the

trial itself, which is obviously, and literally by definition,

testimonial.

We note, however, that appellant has not challenged the

admissibility of J.C.'s alleged statements to his mother's

cousin G.K. Those hearsay statements to a relative, assuming

they occurred as described, are fundamentally different in

character, akin to the non-testimonial statements that the child

victims made to their mothers in Buda and Coder.

IV.

As the last step of our analysis, we must consider whether

appellant's trial counsel was afforded a meaningful and adequate

opportunity at trial to cross-examine J.C. about his testimonial

54 A-2238-14T3 accusations. We conclude that appellant's counsel was

effectively deprived of that important right, given the trial

court's twice-repeated findings of the child's incompetency.

As our Supreme Court recognized in Nyhammer and Cabbell,

the right of cross-examination entails more than the physical

presence of a witness in a courtroom. If a hearsay declarant

has previously communicated out-of-court testimonial statements,

those statements are offered for their truth by a prosecutor

against an accused at trial, and the declarant cannot speak or

refuses to speak on the witness stand, then the right of

confrontation cannot be fulfilled. A defense attorney must be

afforded a fair opportunity to question the declarant and

attempt to impeach his or her demeanor, memory, perception, and

overall credibility.

These fundamental objectives cannot be achieved by a

defense lawyer posing questions to an incompetent witness such

as J.C., who has been judicially found incapable of reliably

distinguishing between truth and fiction, and who does not

understand the paramount need to tell the truth about matters of

grave importance in a prosecution. See, e.g., State v. Bueso,

(2016) (explaining the competency standards

for testimony by young children). Indeed, the Indiana court in

Purvis correctly followed such logic in excluding the child's

55 A-2238-14T3 statements to the police officer because the child was found

incompetent to testify, being "unable to understand the nature

and obligation of an oath."

.17

We adopt the same conclusion here. Although appellant's

trial counsel did attempt to question J.C. on cross about the

underlying events, the incompetent child's testimony, such as it

was, leaves us with no assurance that his answers on the witness

stand had any dependable probative value. The child's responses

to counsel could not be relied upon, any more than his

assertions to the judge that a dinosaur could be a chicken, that

a red toy was green, and that he lived with cartoon characters

and dragons.

This is not a situation like Nyhammer where defense counsel

tactically refrained from confronting a reluctant child witness.

Here, the child was not reluctant, but instead seemingly willing

to agree with a number of preposterous facts suggested to him on

17 We agree with Purvis that a child can be deemed incompetent to testify in court for purposes of state evidence rules, but nevertheless be considered, for purposes of the Confrontation Clause, to have uttered hearsay statements to a law enforcement official in an objectively "testimonial" setting. We reject the Attorney General's argument that the two concepts are necessarily incompatible. As used by the Court in Crawford and its progeny, the objective concept of "testimonial" is essentially situational, whereas the notion of an individual's competency to testify in court is essentially an assessment of the personal characteristics of that individual. See N.J.R.E. 601.

56 A-2238-14T3 the witness stand. At the very least, he was repeatedly

confused. We are loathe to allow appellant's finding of the

commission of a serious sexual offense, with its potential long-

term consequences, based on this incompetent child's testimonial

assertions.

In reaching this conclusion, we do not second-guess the

trial court's perception that J.C.'s specific assertions about

the alleged incident on the bus had the ring of truth. Even so,

we cannot with confidence conclude that those assertions, even

if they are accepted at face value to be trustworthy, were

meaningfully subjected to the important customary rigors of

cross-examination. In fact, it may have been unseemly and

perhaps even harmful to the child for defense counsel to have

undertaken a pointed cross-examination designed to emphasize the

child's already-exhibited failings as a reliable communicator in

the witness box. The judge's repeated findings of J.C.'s

incompetency, which the State does not challenge, are amply

supported. Indeed, his incompetency is clearly apparent from

the record.

We therefore conclude that appellant in this case was

denied a fair opportunity to confront and cross-examine J.C.

regarding previous statements he made in a testimonial setting.

57 A-2238-14T3 Hence, A.R.'s delinquency adjudication must be reconsidered

because of the court's reliance on those testimonial assertions.

V.

The foregoing analysis leaves us to address appellant's

final point that the evidence was insufficient here to support a

finding of delinquency beyond a reasonable doubt. In

considering that argument, we are obligated to view the

competent evidence on the record indulgently, giving all

favorable inferences to the State. See State v. Elders,

(2007) (citing State v. Johnson,

(1964)).

Since we have excluded both J.C.'s courtroom testimony and

his recorded police interview, the State's remaining evidence

consists of: (1) J.C.'s non-testimonial spontaneous utterance to

G.K. at the bus stop; (2) G.K.'s observation of appellant

holding J.C.'s hand after they got off the bus; and (3) G.K.'s

in-court identification of appellant as the child that she saw

with J.C.

The State's case is bolstered, at least to some limited

extent, by the alleged inconsistency in the testimony of the bus

driver and the bus aide about exactly where the aide had been

seated on the trip and whether or not she had been in a position

to observe any interaction on the bus between appellant and J.C.

58 A-2238-14T3 Conversely, the State's case is weakened by the lack of any

eyewitnesses on the bus who saw the alleged touching, or who

heard the alleged laughter of children after it occurred.

We are reluctant to cast aside the trial judge's first-hand

assessment that what J.C. allegedly said to G.K. was credible.

Indeed, as we have noted, appellant does not contest the judge's

finding of trustworthiness regarding that particular statement

for purposes of admissibility under the hearsay exception. Nor

are we willing to discard the judge's observation that G.K.

herself was "believable." To the contrary, we generally owe the

trier of fact considerable deference on such credibility

findings. See, e.g., State v. Locurto,

(citing

).

Our ruling that J.C.'s incompetence deprived appellant of

the chance to meaningfully cross-examine him in court about his

testimonial accounts does not necessarily compel a finding that

J.C.'s separate, non-testimonial spontaneous utterance to his

mother's cousin was incredible. Indeed, the young child's

excited utterances in Buda, which our Supreme Court deemed non-

testimonial, were treated as competent proof, despite the

child's non-appearance for cross-examination at trial. Supra,

195 N.J. at 308. The same was true of the child's non-

testimonial hearsay in

.

59 A-2238-14T3 Our Supreme Court has yet to hold that a person's

incompetency to testify in a courtroom signifies that his or her

admissible out-of-court assertions must be per se disregarded.

Moreover, the Supreme Court in D.R. specifically rejected ABA

Recommendation 4.3, which had suggested the inclusion of a

corroboration requirement when a child of tender years does not

testify. See D.R., supra,

.

Because this case was tried as a non-jury juvenile matter,

we have a distinct procedural advantage of an opportunity to

remand this difficult decision about the weight of the remaining

evidence to the trial judge in the first instance. We shall

take advantage of that opportunity.

On remand, the judge shall reconsider the case – this time

ignoring the child's recorded interview and in-court statements

– and assess only the strength of the State's remaining proofs,

bearing, of course, in mind appellant's competing arguments for

acquittal. If, on further reflection, the trial judge finds

that the remaining proofs are inadequate to meet the State's

burden, he shall enter a judgment of acquittal. Conversely, if

the judge remains persuaded that the burden was met, he shall

state his reasons as fully as practicable and re-issue a final

60 A-2238-14T3 judgment of delinquency, which appellant is free to have

reviewed in a new appeal.18

Reversed in part as to the evidential admission of the

child's testimonial statements, and remanded in part. We do not

retain jurisdiction. The remand shall be completed within

ninety days. In the meantime, appellant's delinquency

adjudication and any outstanding portions of his sentencing

disposition shall remain in force, subject to the decision on

remand.

18 In light of the possibility of appellant's acquittal by the trial court on remand, we need not address at this time his contentions that the original delinquency finding violated his due process rights, aside from his right of confrontation.

61 A-2238-14T3