14-2-0579 State in the Interests of K.S., App. Div. Docket No. A-0970-11T4
PARENTAL INFLUENCE OF CHILD SEX ASSAULT CASE JEOPARDIZES JUDGE’S DECISION—TAINT–
July 9, 2013 the Appellate Division reversed a ruling of child abuse against K.S., 11 years old at the time of the incident, for allegedly causing K.E., a nine year old, to take his pants down and touch the victim’s buttocks on three separate occasions during the summer of 2010. To convict K.S., the State must prove beyond a reasonable doubt that K.S. knowingly performed an “indecent, immoral or unlawful act or deed that may have tended to debauch or degrade K.E.’s morals.” State v. Overton, 357 N.J. Super. 387, 393 (App. Div. 2003). The Appellate Division found that the trial judge erred by admitting testimony of the victim’s mother made to her by the victim.
Pursuant to N.J.R.E. 803(c)(27), statements made by a child about a sexual offense may be admitted after the trial judge conducts a preliminary hearing pursuant to N.J.R.E. 104(a) to determine that the statement is sufficiently reliable. Reliability is based on “time, content and circumstances of the statement…totality of the circumstances…spontaneity, consistent repetition, mental state of the declarant, use of terminology unexpected of a child of similar age, and lack of motive to fabricate.” State v. P.S., 202 N.J. 232, 249 (2010). The Appellate Division held that the trial judge failed to give proper consideration of interrogation and manipulation by adults in admitting the mother’s testimony.
At trial, the mother testified that her son initially did not tell her about the incidents. The mother continued to question her son over the summer months to obtain more details about the incidents. The Appellate Division found the repeated questioning of the victim by his mother to discount the spontaneity of the statements by the victim. Generally the probative value of statements are stronger when the statements are blurted out rather than dragged out piece by piece over a period of months. There is no exclusive list of factors for a 104(a) hearing but the Appellate Division has emphasized identifying the statement’s spontaneity to find sufficient reliability.