State v. D.G.
State v. D.G.
Opinion of the Court
The opinion of the court was delivered by
In this appeal we again confront the critical and continually recurring problem of the admissibility of a child’s extrajudicial statements regarding allegations of sexual abuse. Specifically, we must determine whether under the tender years exception to the hearsay rule, N.J.R.E. 803(c)(27), the testimony of a relative regarding the child’s extrajudicial statements about the sexual assault and a videotaped police interview of the child that contained a seven minute gap in the taping are admissible.
I.
Defendant’s alleged victim was Michelle,
Approximately three weeks later, on February 6, 1993, Michelle was playing in a bedroom with the younger daughters of her mother’s cousin, Sandra Jones.
Aunt Sandy immediately called one of Michelle’s aunts and Michelle repeated the allegation to her. Michelle’s mother was called and Aunt Sandy told her what Michelle had said. They called the police and defendant was charged with committing an act of sexual penetration on a child under the age of thirteen and with debauching the morals of a child for whom he had a legal duty of care.
On February 10, 1993, Detective Marie Hayes, a female detective from the Child Abuse Unit of the Cape May County Prosecutor’s office conducted a videotaped interview of Michelle. Aunt Sandy accompanied Michelle to the interview and waited in the hall while Michelle and Hayes spoke. Michelle mentioned to Hayes that Aunt Sandy promised her a surprise if she told the truth. Initially, however, Michelle said very little. She said only that defendant had touched her “boobies.” The detective persistently tried to get Michelle to say more; Michelle would not. The detective sensed that Michelle was scared and was holding back. She stopped the interview when Michelle’s nose began to bleed and Hayes brought Michelle to the bathroom. The detective then spoke separately with Aunt Sandy and asked her to reassure Michelle about talking to her. Aunt Sandy then placed Michelle
Six days later, Michelle was examined by Dr. Finkel, a pediatrician specializing in cases of sexual abuse, to determine if there were any physical and/or psychological “residual effects” of the alleged sexual attack. After receiving a medical history from Michelle’s mother and background information from a caseworker, Dr. Finkel interviewed Michelle alone. Under questioning about whether defendant had touched her, Michelle said that defendant rubbed his penis on her “private.” Using an anatomical model with genitalia, Michelle demonstrated what Dr. Finkel interpreted as vulvar coitus. The physical examination disclosed no injury or “residual effect” to the genitalia. According to Dr. Finkel, however, that result is not unusual because even in rape cases where extreme force is used, resultant injuries can be undetectable a week later. Based on Michelle’s oral description of the events and her behavior with anatomically correct dolls, Dr. Finkel found that there was a high likelihood that sexual abuse had occurred.
Prior to the trial, Michelle’s mother beat her in an attempt to get her to recant her allegations. Michelle was sent to live briefly with her grandfather and then with another aunt. Eventually, she was sent to live out-of-state with her biological father. When she returned to New Jersey, she accused him of sexual assault as well. That account was so similar to the charge against defendant that they both included the detail of the perpetrator using a towel to wipe himself and the bed after ejaculation. Charges were never pressed against Michelle’s biological father. At the time of defendant’s trial, Michelle was living in a foster home.
On September 16, 1994, Dr. Finkel examined Michelle again, this time with regard to her claims against her biological father. Michelle alleged three separate incidents involving her biological
On December 6, 1993, at his attorney’s urging, defendant entered a plea of guilty to aggravated sexual contact, in exchange for the prosecutor’s recommendation of a sentence of 364 days in county jail. However, at defendant’s sentencing, he so persistently maintained his innocence that the trial court refused to accept the plea agreement. The case was set for trial.
On April 20, 1995, Michelle met with the prosecutor and Detective Hayes. She initially told them that defendant did not abuse her and then, upon further questioning, told them that her mother had told her to lie and deny the abuse. Michelle’s mother was charged with hindering the prosecution and witness tampering.
A pre-trial hearing was held pursuant to N.J.R.E. 104(a). Relying on N.J.R.E. 803(c)(27), the tender years exception, the prosecution sought the admission of Hayes’ videotaped interview of Michelle. Defendant argued that the videotape was untrustworthy because of the seven minute gap and Aunt Sandy’s intervention. After viewing the videotape and listening to Detective Hayes explain the circumstances surrounding the creation of the video, the trial court deemed Michelle’s statements on the tape to be sufficiently trustworthy to warrant admission of the videotape.
The trial began on May 1, 1995. On May 3, 1995, Michelle’s mother served defendant with divorce papers. Also on that date the prosecutor dismissed with prejudice the charges against Michelle’s mother.
Her trial testimony also differed in detail from her prior statements to the police and social service personnel. For example, while she initially told authorities that defendant threw her on the bed and merely unzipped his pants, she testified that he asked her to lie down on the bed and took his pants off. Similarly, she initially said she touched his penis, but then denied this at trial. She vacillated so many times at trial that the prosecutor was impelled to impeach her. For example, when Michelle repeatedly stated at trial that she had not heard defendant’s voice on a speaker phone trying to persuade her mother that he was innocent, the prosecution played an audio tape where Michelle could be heard telling Hayes that her mother would put the speaker phone on so that Michelle could hear defendant argue his version of events.
Michelle’s mother testified for the prosecution. She testified that defendant “was a fanatic” about toweling himself off “after intercourse even after ejaculating inside” her. She denied ever telling Michelle that she did not believe her accusations against defendant and denied telling Michelle to lie about what happened. However, after being impeached by the prosecution, she admitted “slapping” Michelle and telling her that she did not believe the assault ever happened. Finally, despite the fact that she had told defense investigators that Michelle had “a problem with lying” and was “telling so many stories and so many lies, she’s getting caught up in her lies,” the mother testified that Michelle “tell[s] the truth.”
Aunt Sandy also testified. Pursuant to the fresh complaint exception to the hearsay rule, she was allowed, over the defense’s
Testifying as an expert on child sexual abuse accommodation syndrome (“CSAAS”), Dr. Julie Ann Lippman observed that sexually abused children often come to believe that the non-offending parent, ie., the one who did not sexually abuse them, will not believe them. Sexually abused children are also likely to recant. If a child discloses her abuse and her parents get angry at her, then it is “absolutely reasonable” that the child would just say “ ‘never mind, it didn’t happen.’ ”
The videotape was played for the jury. Detective Hayes testified to and was cross-examined concerning the irregular circumstances surrounding the creation of the videotape. She stated that during the interview Michelle’s face would “become like a blank stare, almost as if a person who has been frightened would just stare at you.”
Mary Dunn, a D.Y.F.S. investigator, was called as a defense witness. She recalled that she interviewed Michelle on August 5, 1994, about allegations of sexual abuse involving her biological father. When asked about sexual abuse by defendant, Michelle said that he did not molest her. She had made the allegation because she did not want her mother to remain married to defendant.
In his testimony, defendant explained that he married Michelle’s mother in 1989. They had two children and Michelle’s mother had two children, including Michelle, from a prior marriage. Although his relationship with Michelle was “pretty good,” the marital
The trial court charged the jury on prior inconsistent statements and on the child sexual abuse accommodation syndrome. After nine hours of deliberation, the jury was hopelessly deadlocked on the aggravated sexual assault charge. It did, however, convict defendant of the lesser-included offense of second-degree sexual assault (N.J.S.A. 2C:14-2b) and second-degree endangering the welfare of a child (N.J.S.A. 2C:24-4a). Defendant filed a motion to set aside the verdict and grant defendant a new trial. That motion was denied and defendant was sentenced to a presumptive term of seven years. He appealed to the Appellate Division.
The Appellate Division concluded that Michelle’s statements to Aunt Sandy were admissible at trial. However, the Appellate Division explained that the testimony was inadmissable under both the fresh complaint exception and the excited utterance exception to the hearsay rule. Rather, the Appellate Division asserted that the child’s out-of-court allegations regarding sexual abuse were admissible under the tender years exception to the hearsay rule, N.J.R.E. 803(c)(27). The tender years exception requires that the court conduct a hearing and find that “on the basis of the time, content, and circumstance of the statement there is a probability that the statement is trustworthy.” N.J.R.E. 803(c)(27). The Appellate Division concluded that “[i]f the issue of the admissibility of Sandra’s testimony under the tender years exception had been presented to the court before trial, the testimony would very likely have been held to comply with that rule [and that] any error in the admission of Sandra’s testimony was harmless beyond a reasonable doubt.” Furthermore, the Appellate Division held that
In his petition for certification, defendant alleges that Michelle’s out-of-court statements to Aunt Sandy and to Detective Hayes were not sufficiently trustworthy to be admitted under the tender years exception, N.J.R.E. 803(c)(27). He also alleges that the improper admission of Michelle’s unreliable out-of-court statements given in response to coercive and suggestive questioning denied him the right to confront witnesses and the right to due process of law and a fair trial in violation of U.S. Const. Amend. VI and XIV, section 1, and N.J. Const., art. I, ¶ 10. Specifically, defendant claims that Aunt Sandy forced a statement from Michelle after keeping her isolated for forty-five minutes, screaming at her, and then interrogating her. He contends that the error in admitting that testimony is compounded by the fact that the trial court did not give the jury an instruction concerning the limited uses to which such testimony could be put. Moreover, if, as the Appellate Division claims, the testimony was admissible under the tender years exception to the hearsay rule, defendant was still prejudiced by the fact that he was not given the advance notice required by N.J.R.E. 803(e)(27) and therefore, was not prepared to rebut the testimony. Finally, defendant alleges that the videotape was unreliable because it contained a seven minute gap wherein Aunt Sandy was allowed to speak with and thus influence Michelle. In defendant’s supplemental brief, he alleges that Hayes’ improper and coercive interview techniques also rendered the videotape unreliable. We granted defendant’s petition for certification, 152 N.J. 364, 704 A.2d 1299 (1998), and now reverse and remand for a new trial.
II.
A.
In State v. D.R., 109 N.J. 348, 363, 537 A.2d 667 (1988), we held that the adoption of a tender years exception to the hearsay rule
In 1993, Rule 63(33) was re-enacted as N.J.R.E. 803(c)(27). N.J.R.E. 803(c)(27) is virtually identical to Rule 63(33)
Statements by a child relating to a sexual offense. 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 his intention to offer the statement and the particulars of the statement at such time as to provide him with a fair opportunity to prepare to meet it; b) the court finds, in a hearing conducted pursuant to Rule 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 Rule 601 [the general competency rule],
[N.J.R.E. 803(e)(27)J
Declining to “endorse a mechanical test for determining ‘particularized guarantees of trustworthiness,’ ” the Court identified a number of key factors that courts might consider: spontaneity, consistency of repetition, lack of motive to fabricate, the mental state of the declarant, use of terminology unexpected of a child of similar age, interrogation, and manipulation by adults. Id. at 821-22, 827, 110 S.Ct. at 3150, 3153, 111 L.Ed.2d at 656, 659-60. That list of factors is not exhaustive, and “courts have considerable leeway in their consideration of appropriate factors.” Id. at 822, 110 S.Ct. at 3150, 111 L.Ed.2d at 656. The factors must, however, relate to “whether the child declarant was particularly likely to be telling the truth when the statement was made.” Ibid. The hearsay statement must possess “inherent trustworthiness”; the court may not point to corroborating evidence in an attempt to demonstrate the trustworthiness of the hearsay statement. Id. at 822-23, 110 S.Ct. at 3152, 111 L.Ed.2d at 657. The “presence of corroborating evidence” merely indicates “that any error in admitting the statement might be harmless.” Ibid.
N.J.R.E. 803(c)(27) similarly requires that the court “find[ ], in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the' statement there is a
Applying the Wright factors to this ease, a trial court could .conclude that Michelle’s statements to Aunt Sandy did not possess “particularized guarantees of trustworthiness.” The situation under which Michelle disclosed the sexual abuse was very stressful. Michelle did not spontaneously divulge information concerning the assault to Aunt Sandy, but rather Aunt Sandy interrogated her
To determine if the extrajudicial statements have the appropriate indicia of reliability required for admission, N.J.R.E. 803(c)(27) requires that the trial court conduct a hearing prior to their admission. In this case the trial court did not conduct a N.J.R.E. 104(a) hearing with respect to the admission of Aunt Sandy’s testimony. The appellate court, however, concluded that “any error in the admission of Sandra’s testimony was harmless beyond a reasonable doubt.” We disagree. Where tender years testimony was admitted without the benefit of either a N.J.R.E. 104(a) hearing or a statement of findings concerning trustworthiness, the Appellate Division has observed “[T]he vital issue of guilt was exceedingly close and any error that could have tipped the credibility scale would have to be regarded as plain error____ A fair trial in child abuse cases is particularly important. In such sensitive eases, we must tread a measured path that avoids ignoring the reality of child abuse and avoids as well the possibility of unjust conviction.” State v. W.L., 292 N.J.Super. 100, 117-
Further, not only did Michelle testify as to the identity of the abuser, but Dr. Finkel, Detective Hayes, and Aunt Sandy, also named defendant as the culprit. Additionally, the videotape was played for the jury and on the tape Michelle accuses defendant of sexual abuse. The jury .thus heard four times not just that Michelle had been abused, but that defendant was the abuser. Even if, as the trial court averred, Aunt Sandy’s testimony was merely corroborative, to have admitted it, could still be plain error. Given the victim’s frequent recantations, that the prosecutor herself was forced to impeach Michelle on the stand, and that Michelle made identical allegations against her biological father, credibility was at issue. The corroborative statements that came in under the tender years exception to hearsay may well have tipped the scale. We observe that in considering the admission into evidence of several repetitive corroborative statements under the tender years exception, 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.
N.J.R.E. 803(c)(27) requires the court to find, 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. Without such a hearing, the statements cannot properly be admitted under the tender years exception to the hearsay rule. The trial court may or may not determine that Michelle’s statements carry with them the necessary indicia of reliability and trustworthiness. However, without a pretrial hearing on notice to defendant the testimony should not have been admitted. Therefore, on remand there must be a N.J.R.E. 104(a) hearing regarding the trustworthiness of Aunt Sandy’s statement and its admissibility into evidence.
B.
N.J.R.E. 803(c)(27)(a) also provides that the proponent of the tender years statement must “make[ ] known to the adverse
III.
The trial court held a N.J.R.E. 104(a) hearing with regard to the admissibility of the videotape into evidence under the tender years exception. It viewed the videotape, heard the testimony of Detective Hayes, heard counsels’ arguments about the admissibility and inadmissibility of the videotape, and concluded that the videotape statements were admissible under the tender years exception.
Nevertheless, defendant maintains that there was an insufficient guarantee of trustworthiness to warrant the admission of the videotape under the tender years exception because of Aunt Sandy’s intervention, the seven minute gap and Detective Hayes’ aggressive questioning. The State disagrees and asserts that Detective Hayes’ questioning was not unduly suggestive, agreeing with the trial court that “absolutely no words were put into defendant’s mouth.” As conceded by defendant, Detective Hayes’ questioning did not supply Michelle with the answers. Moreover, the State emphasizes that defendant had ample opportunity by cross-examining Michelle on the stand to address the factors such as spontaneity and constant repetition, the child’s mental state, her use of language, and her possible motives to fabricate. N.J.R.E. 803(c)(27) provides that the hearsay statement must be trustworthy before it is admitted into evidence. We observe that although the ability at trial to confront Michelle might be relevant on whether the admission of evidence under the tender years exception constituted harmless error, it cannot be used to establish the trustworthiness of that evidence. That issue must be resolved before the evidence is admitted.
When assessing whether the gap in the interview, the talk with Aunt Sandy, and Detective Hayes’ questioning render the interview unreliable, we consider State v. Michaels, 136 N.J. 299, 642 A.2d 1372 (1994). In that case the Court held that the likelihood of unreliable evidence from improper and suggestive interview techniques required a pre-trial taint hearing concerning the admission of the children’s statements and testimony. Id. at 313-24, 642 A.2d 1372. “[T]he inculpatory capacity of statements indicating the occurrence of sexual abuse and the anticipated testimony about those occurrences requires that special care be taken to
In assessing the importance of a child’s initial statements, the Michaels Court recognized “that the ‘investigative interview’ is a crucial, perhaps determinative, moment in a child-sex-abuse ease.” Id. at 309, 642 A.2d 1372. “If a child’s recollection of events has been molded by an interrogation, that influence undermines the reliability of the child’s responses as an accurate recollection of actual events.” Ibid. “[Ajmong the factors that can undermine the neutrality of an interview and create undue suggestiveness are a lack of investigatory independence, the pursuit by an interviewer of a preconceived notion of what has happened to the child, the use of leading questions, and a lack of control for outside influences on the child’s statements, such as previous conversations with parents or peers.” Ibid.
A review of Detective Hayes’ questioning suggests that instead of conducting a neutral interview designed to provide Michelle with a fair opportunity to describe what happened, Detective Hayes simply assumed that Michelle’s earlier statement to Aunt Sandy was accurate and continued the interview until Michelle eventually repeated it to her satisfaction. The most damaging evidence against defendant was elucidated primarily after the gap in the interview. During the pre-gap part of the interview, Michelle alleged little more than that the defendant was playing with her “boobies.” When Hayes persisted, asking if anything else had happened, Michelle replied: “That’s it” and then later: “I said everything that happened.” Hayes then asked her the names of her private parts; Michelle responded: “[V]agina.” When Hayes asked if anything else happened, Michelle shook her head no. Likewise, when Hayes asked if defendant did anything else,
As we recognized in Michaels, an interview will not produce reliable evidence if it is based on “a preconceived notion of what has happened to the child” and includes “incessantly repeated questions,” suggesting that the earlier answers are wrong. 136 N.J. at 309-10, 642 A.2d 1372. When persistent questioning did not persuade Michelle to change her account of the incident with defendant, Detective Hayes relied on intervention from Aunt Sandy to encourage Michelle to make further disclosures. Although Aunt Sandy did not discuss the incident with Michelle at that point, she was the same person to whom Michelle had previously made statements.
Recently, the Appellate Division addressed the issue of admissibility of a police videotaped interview of a child victim of sexual assault that contained a break in the interview. In State v. Smith, 310 N.J.Super. 140, 708 A.2d 436 (App.Div.), certif. granted, 155 N.J. 587, 715 A.2d 990 (1998), the court found that the interview fell into two distinctive parts — the “interview” and the “reinterview,” and held that only the portion of the interview that preceded the intermission could be displayed to the jury. We do not suggest that any break in the videotaped interview of a child victim of sexual assault automatically renders the second half of the videotape inadmissible. However, we do caution those professionals who conduct such interviews to avoid any activity that might call into question the reliability and trustworthiness of the information gathered after the break.
Each case will depend on its facts. In this case, the seven minute gap, the intervention of Aunt Sandy, Michelle’s unknown conversation with Detective Hayes during the break, all call into question the validity of the second part of the interview, particularly because the most damaging evidence was eludicated after the break. To find that the videotape was admissible, the Appellate Division relied on the fact that the existence of the gap and the circumstances surrounding it were presented to the jury by direct and cross-examination. Neither the trial court nor the Appellate Division explicitly addressed the fact that Aunt Sandy’s mere presence may have been coercive, and that when she initially
The importance of Michelle’s statements to Aunt Sandy and Detective Hayes to the State’s case is readily apparent from the record. The State’s evidence against defendant was not overwhelming. A medical examination revealed no evidence that Michelle had been sexually assaulted. Michelle subsequently made very similar allegations against her biological father and recanted her allegations against defendant. Accordingly, we find that the videotape after the break was not sufficiently reliable to have been admitted as evidence under N.J.R.E. 803(c)(27).
The judgment of the Appellate Division is reversed and the matter remanded for a new trial.
For reversal and remandment — Chief Justice PORITZ and Justices HANDLER, POLLOCK, O’HERN, GARIBALDI, STEIN, and COLEMAN — 7.
Opposed — None.
When the Rules of Evidence were revised in 1993, the Supreme Court Committee on the Rules of Evidence (“Evidence Committee”) initially recommended that Rule 63(33) be deleted. 1998 Report at 15-16. When members of the law enforcement community objected, however, the Evidence Committee recommended that Rule 63(33) be retained and re-enacted as N.J.R.E. 803(c)(27) and that the law enforcement community be given "an adequate opportunity” to “air” its concerns. Id. at 15. The Evidence Committee in its 1998 Report again recommended that N.J.R.E. 803(c)(27) be deleted and proposed that new rules NJ.R.E. 804(a)(5) and 804(b)(8) be adopted in lieu thereof. Id. at 15-16. The Court approved the Evidence Committee's recommendation and put the Legislature and the Governor on notice of its adoption pursuant to NJ.S.A. 2A:84A-35. The evidence rule amendments will take effect July 1, 1999, unless the Court takes further action or, consistent with NJ.S.A. 2A:84A-36, the Legislature cancels the amendments by a Joint Resolution signed by the Governor. [However, the recommendation has not been adopted by Joint Resolution of the Legislature and signed by the Governor pursuant to NJ.S.A. 2A:84A-38J Accordingly, this case is governed by NJ.R.E. 803(c)(27).
This is a pseudonym.
This is a pseudonym.
The only material difference between the two is that N.J.R.E. 803(c)(27) permits the statements to be used in juvenile and civil proceedings as well as criminal ones.
Reference
- Full Case Name
- STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT v. D.G.
- Cited By
- 26 cases
- Status
- Published