In this appeal, the court considers the propriety of a Law Division order, excluding several allegations of sexual abuse against defendant that were memorialized in the child-victim's videorecorded statement to law enforcement. The trial judge had admitted the entire statement under the tender-years exception to the hearsay rule, N.J.R.E. 803(c)(27). At that time, the judge found the statement trustworthy, noting the alleged victim, who was eight years old when she gave her statement, would be called as a witness at trial.
Prior to trial, the State informed the defense the child was unable to recall all but one incident. During the ensuing N.J.R.E. 104 hearing, the alleged victim, now fifteen years old, acknowledged she no longer recalled certain sexual conduct asserted in her tender-years statement. The trial judge granted defendant's in limine motion, limiting the child's testimony to the only allegation she recalled, and ordered her videorecorded statement redacted accordingly. The judge determined the child's lack of memory rendered her unavailable for cross-examination on the incidents she could not recall, thereby violating defendant's right of confrontation.
During jury selection in the now-adjourned trial, the court granted the State's emergent application to file a motion for leave to appeal, granted leave, and now reverses the Law Division order. The court holds defendant's right of confrontation is not violated by admission of the child's entire videorecorded statement under N.J.R.E. 803(c)(27), previously deemed trustworthy by the trial judge, provided the victim testifies at trial and is subject to cross-examination. The court therefore concludes the trial judge improperly parsed, and erroneously excluded, those alleged incidents the victim does not recall.
