Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
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Monday, November 21, 2016


Appellant, a fourteen-year-old juvenile, was found guilty of sexually touching a seven-year old boy on a bus returning from summer camp. The alleged victim was developmentally comparable to a three-year-old. After getting off the bus, he blurted out to his mother's cousin that appellant had touched him during the ride. Eighteen days later, a detective interviewed the younger child on videotape at the county prosecutor's office. The child repeated the accusation, demonstrating it with anatomical dolls. No eyewitnesses on the bus, including the driver and aide, corroborated the incident.
At a pretrial Rule 104 hearing, the court ruled that both of the child's hearsay statements were sufficiently trustworthy to admit under the "tender years" hearsay exception, N.J.R.E. 803(c)(27). The court then queried the younger child at the start of the trial about his ability to discern and tell the truth. The court twice concluded from the child's troublesome responses that he was not competent to testify under the criteria of N.J.R.E. 601. Nevertheless, the court accepted the child's hearsay statements and trial testimony repeating the accusations, based on the so-called "incompetency proviso" in
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Rule  803(c)(27),  which  treats  children  of  tender  years  as
available witnesses even if they are not competent to testify.
We conclude that the younger child's statements during his recorded interview with the detective were "testimonial" under the Confrontation Clause, as construed by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), and its progeny. The objective "primary purpose" of the 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 testimonial statements to the detective here are distinguishable from the non-testimonial statements that a young child victim made to her teachers at school in Ohio v. Clark, 135 S. Ct. 173 (2015).
Although appellant's counsel attempted to cross-examine the child, that exercise was inadequate to safeguard his confrontation rights, given the child's undisputed incompetency. Hence, we reverse the admission of the detective's interview and the child's in-court testimony because it violated appellant's constitutional rights. However, as appellant concedes, the child's spontaneous assertion after getting off the bus was not testimonial under the Confrontation Clause and was properly admitted. We remand for the trial court to reconsider the proofs in light of our determinations.