The “Tender Years” Hearsay Exception

State of New Jersey in the Interest of A.R., 447 N.J. Super. 485 (App. Div. 2016).  Judge Sabatino teaches at Rutgers-Camden Law School.  Students there pay to be educated by him.  Readers of his judicial opinions on evidence can get some of that same education for free.  Judge Sabatino has written a number of prodigious opinions on evidence issues, including this one and this one.  With the courts closed today, the opportunity to go through the 61-page ruling that Judge Sabatino issued in this case two days ago presented itself.

The case involved the “tender years” exception to the hearsay rules, contained in Evidence Rule 803(c)(27).  That rule makes admissible a statement “by a child under the age of 12 relating to sexual misconduct committed with or against that child” if the trial court finds, after a Rule 104 evidentiary hearing that “there is a probability that the statement is trustworthy.”  There is a proviso, however, 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 [Evidence Rule] 601.”

Defendant, a juvenile, was found guilt of inappropriate sexual contact with a minor, J.C.  J.C. told his mother’s cousin about what had happened, and the mother called the authorities.  J.C. also gave a statement to a detective.

At the Rule 104 hearing, the trial judge found that J.C.’s statements to the cousin and the detective were trustworthy and therefore admissible under the hearsay exception of Rule 803(c)(27).  At trial, however, the judge “twice concluded from J.C.’s troublesome responses that he was not competent to testify” under Rule 601.  Due to the proviso, however, the judge allowed J.C.’s testimony to come into evidence.  The judge then relied on J.C.’s statements in concluding that defendant had committed the sexual touching.

Defendant appealed, asserting that his constitutional right to confront witnesses against him was infringed because he could not meaningfully cross-examine about J.C.’s hearsay statements.  Defendants contended that the proviso in Rule 803(c)(27) was invalid as regards such “testimonial” hearsay statements.

Defendant had a heavy burden, because there is “a general presumption of constitutionality that applies to all legislation, including our evidence rules.”  Judge Sabatino agreed that J.C.’s statement to the detective was testimonial.  Because the Confrontation Clause overrides the rules of evidence, and defendant was deprived of his confrontation right as to the statement to the detective, testimony regarding that had to be disregarded.  J.C.’s spontaneous statement to the cousin, however, was not testimonial and was therefore admissible.  The panel remanded the case to the Family Part for an assessment of whether the State’s evidence, other than the excluded matter, sufficed to prove defendant’s guilt beyond a reasonable doubt.

Judge Sabatino’s lengthy opinion contained a detailed review of the origin and purposes of the tender years principle, its incompetency proviso, and the incorporation of those ideas in the Evidence Rules.  He also provided an extensive review of recent Confrontation Clause jurisprudence and its effect in New Jersey.  The panel’s opinion relied heavily on Supreme Court of the United States decisions, as well as rulings from other jurisdictions.  The opinion is well worth reading in full, for the tremendous educational benefit that it affords.