The Supreme Court Affirms in the State v. Harrell Confrontation Clause Case

State v. Harrell, ___ N.J. ___ (2024). As discussed here, this case presented the following question for the Supreme Court: “Under the circumstances presented, is the alleged victim’s recorded statement from when she was eight years old admissible at trial now when she is fifteen and would testify that she recalls only one of the incidents of alleged sexual assault described in that statement?” The issue was whether admitting the testimony deprived defendant of the constitutional right to confront his accuser.

The lower courts reached different conclusions on that issue. The Law Division barred the minor’s testimony as to things she no longer recalled, but the Appellate Division reversed in an opinion by Judge Rose that was reported at 475 N.J. Super. 545 (App. Div. 2023).

Today, the Supreme Court issued a per curiam opinion that affirmed the Appellate Division substantially for the reasons that Judge Rose gave. The Court a caveat, however, as follows:

“It is no surprise that a young child may have difficulty remembering a traumatic episode alleged to have taken place years earlier. Cf. State v. Henderson, 208 N.J. 208, 267 (2011) (discussing memory decay). In this case, more than three years elapsed between the date the detective interviewed the child and the return of the original indictment. Defendant did not challenge the delay, and we have no way to assess the reason for it. Nor do we suggest that the delay here violated defendant’s rights. A lengthy delay in a future case, however, might prompt a legal challenge. As a result, it is incumbent on the State to act expeditiously as it investigates and prosecutes matters that rely heavily on a young child’s ability to recall events.”