aggravated manslaughter conviction. In a plea agreement
a codefendant, the shooter, had agreed not to testify on
defendant’s behalf at trial after the trial court had denied
defendant’s motion to sever his trial from that of
codefendant. Defendant never knew of this “no
testimony” agreement, nor was it part of the record or a
restriction disclosed in the plea agreement, contrary to
State v. Fort, 101 N.J. 123 (1985). Codefendant
subsequently indicated that he would have testified on
defendant’s behalf if the State had not “threatened” him
with an extended term.
The Appellate Division found controlling the Fort
holding that a codefendant’s plea agreement requirement
not to testify favorably for defendant violated defendant’s
Sixth Amendment right to compulsory process. Once
the State extracted a promise not to testify, it became
practically impossible to determine if the witness refused
to do so because of a true fear of self-incrimination or
because of a desire to perform the promise. Here,
codefendant’s plea agreement obscured the basis for his
decision not to testify at defendant’s trial. The court
refused the State’s request to remand the matter for a
preliminary hearing “because a court will seldom be able
to determine exactly what evidence would have been
brought out had the witness been allowed to testify
freely.”
VIII. INFANTS
The declared policy in New Jersey is that generally
everyone is qualified to be a witness and give relevant
evidence. State v. Carter, 91 N.J. 86, 124 (1982).
N.J.R.E. 601. Witness disqualification is an exception.
Id. When the testimony of a child witness is tendered in
a criminal case, the trial court should conduct an inquiry
to determine the testimonial capacity of the infant to
assure that he or she has “sufficient discernment and
comprehension to invest the testimony with probative
worth.” State v. Grossmick, 153 N.J. Super. 190, 192
(App. Div. 1976), aff’d o.b. 75 N.J. 48 (1977). This form
of capacity focuses on the ability to comprehend
questions and to frame and express intelligent answers.
Id. at 192. State in Interest of R.R., 79 N.J. 97, 114
(1979). In State v. Grossmick, supra, the Supreme Court
affirmed the decision of a trial judge who excluded, on the
ground of incapacity, the testimony of a defense witness,
the defendant’s six-year-old daughter, who was an
eyewitness to the sexual assault of her babysitter.
Even if the trial court finds the infant competent to
testify, a defendant may still be allowed to develop
evidence pertaining to the child’s capacity to testify
through the introduction of psychological or psychiatric
evidence. State v. R.W., 200 N.J. Super. 560, 568 (App.
Div. 1985), aff’d, 104 N.J. 14 (1986). This is especially
true where the infant is of tender years. Id.It was error for the trial court to award a child with
cookies, candy, etc., in the presence of a jury because such
actions may appear to be an endorsement of the child’s
testimony. State v. R.W., supra at 569-570. Such rewards
may be given by the court, however, out of the jury’s
presence. Id.Once testimonial capacity is established, the witness,
including an infant, must be administered an oath
pursuant to N.J.R.E. 603. However, “it is not necessary
that an infant mouth the traditional litany nor
comprehend its legal significance.” State in Interest of
R.R., 79 N.J. at 111. “Any ceremony which obtains from
an infant a commitment to comply with this obligation
on pain of future punishment of any kind constitutes an
acceptable oath under the common law, and hence a valid
Evid. R. 18 oath.” Id. The traditional oath, however,
should not be routinely dispensed with merely because a
child is involved. State v. Zamorsky, 170 N.J. Super. 198,
204 (App. Div. 1979), certif. denied, 82 N.J. 287 (1980),
cert. denied, 449 U.S. 861 (1980). The court in Zamorsky
recommends deviation from the traditional oath only if
“special circumstances” are present. Id.The difficulty of child witnesses, who have been the
victims of sexual offenses, to withstand unnecessarily
vigorous cross-examination, sometimes justifies the use of
ameliorative devices. In State v. Kozarski, 143 N.J. Super.
12 (App. Div. 1976), certif. denied, 71 N.J. 532 (1976),
the defendant was charged with performing an act of
fellatio on an 11-year-old child. The victim testified that
the defendant also suggested acts of anal intercourse.
Defense counsel then sought to cross-examine the victim
with regard to the victim’s prior statements which did
not refer to anal intercourse. The trial court anticipated
difficulties with an interrogation and, instead, suggested
a stipulation by the parties that the victim’s prior
statements omitted mention of anal intercourse. The
Appellate Division held that the trial court acted
properly and that the defendant was not entitled, in lieu
of cross-examination, to have the court strike the victim’s
testimony regarding anal intercourse. State v. Kozarski,
143 N.J. Super. at 17.In State v. Cranmer, 134 N.J. Super. 117 (App. Div.
1975), certif. denied, 68 N.J. 283 (1975), the eight-year-
old victim of a sexual assault testified at trial and
identified the defendant. Defense counsel cross-