examined the victim regarding events which occurred
after the defendant’s flight. The victim became hysterical
and, despite a recess, could not be calmed by his mother
or by the judge. When the victim again became hysterical
after the recess, the trial judge concluded that
continuation of cross-examination might cause perma-
nent emotional damage to the victim and terminated
cross-examination. The Appellate Division held that
under these circumstances, this was an appropriate
exercise of discretion and did not deny the defendant his
right to confrontation. State v. Cranmer, 134 N.J. Super.
at 122. And, see State v. Sheppard, 197 N.J. Super. 411,
442 (Law Div. 1984) (where court allowed testimony of
child victim in child sex abuse case to be elicited from
room outside courtroom through use of video
equipment, and held that defendant, by threatening to
kill the child if she revealed his activities, had waived his
right to confrontation).
In State v. Smith, 158 N.J. 376 (1999), the Supreme
Court of New Jersey reversed the Appellate Division
decision and reinstated defendant’s conviction for
aggravated sexual assault. The Court held that the trial
judge’s decision to allow the child-victim to testify by
closed circuit television was proper pursuant to N.J.S.A.
2A:84A-32.4, as was his admission of the minor’s
reinterview videotaped statement pursuant to N.J.R.E.
803(c)(27).
The Appellate Division had ruled that the closed
circuit television procedure could be employed only to
protect a child-victim from “face-to-face confrontation”
with defendant and that fear of the courtroom alone was
insufficient. The Supreme Court rejected this position,
stating that “the protection of children from undue
trauma associated with testifying is an important public
policy goal” and that a trial judge should examine “the
result of [a victim’s] fear, not simply its origin” to
determine whether to invoke N.J.S.A. 2A:84A-32.4.
The Court also rejected the Appellate Division’s
holding that the minor-victim’s reinterview videotaped
statement was “akin to cross-examination.” The Court
stated that “the use of leading questions to facilitate an
examination of child witnesses who are hesitant, evasive
or reluctant is not improper.”
A different type of problem arises where a criminal
defendant is also the parent who refuses to allow a child,
with possible information concerning the defendant’s
involvement in the crime, to be interviewed by the State.
Faced with such a problem in State v. Freeman, 203 N.J.
Super. 351 (Law Div. 1985), the court found that its
most important function was to protect the interests of
both the State and the child. The court found that the
best method for ensuring a balance between both
interests was to have a guardian ad litum appointed. The
guardian ad litum’s function in such a situation is to
examine all parties involved with the child (or children),
including the infant himself, in order to determine if,
under all the circumstances, an interview by the State is
in the child’s best interest or not. Id.Youth alone is not a basis upon which to order
psychiatric tests. The determination of the competency
of a witness is within the court’s discretion. The party
requesting such testimony must present evidence which
reasonably indicates something unique about the young
witness that would influence their competency. Where
the tests have a probative value in relation to the
competency of the young witness, the tests may be
admitted by either party. State v. R.W., 104 N.J. 14
(1986). Following the holding in R.W., the Appellate
Division in State v. Capone, 215 N.J. Super. 497 (App.
Div. 1987), remanded to the trial court to allow the
judge to ascertain details of the infant witness’ disorder to
determine whether it would affect his competency to
testify. To allow such evidence, the requesting party
must show “some deviation from acceptable norms, such
as an identifiable clinical, psychiatric or similar disorder”
to justify consideration of school and medical records in
an evaluation of juvenile witness’ competency.In State v. Henries, 306 N.J. Super. 512 (App. Div.
1997), the Appellate Division reversed defendant’s
double murder, burglary, and weapons convictions
rendered by a jury and his guilty pleas to separate
aggravated assaults and a related weapons offense, finding
on its own that the medical evidence “overwhelmingly”
depicted the eyewitness as having impaired and
unreliable cognitive and recollective ability both at the
time of the murders and at trial. The court relied
extensively on another jury’s acquittal of a coindictee as
further support for its reversal, and focused much of its
opinion on the testimony concerning the boy’s
psychiatric evaluations. In fact, the court itself concluded
that had the jurors heard the State’s and defendant’s
expert witnesses concerning the eyewitness’ mental
status, they certainly would have accepted the defense
analysis. It disagreed with the trial court’s considered
conclusion that the evidence was merely impeaching, and
instead determined that it went directly to the heart of
the State’s case and that the boy’s mental capacity was
both material and the trial’s focal point. It could not
fathom the trial judge’s conclusion that such evidence
was but of an impeachment nature, believed that the jury