cdTOCtest

claim that the deceased committed suicide, and (3)
where the defendant asserts that the decedent died as the
result of an accident. See also State v. Dreher, 251 N.J.
Super. at 317.

The trial court abused its discretion in State v.
Bowens, 219 N.J. Super. 290 (App. Div. 1987), when it
excluded testimony from the defendant’s sister that the
grandmother of a five year old sexual assault victim had
told her that the grandmother’s boyfriend used to beat
the grandmother. The defense in the case was that the
grandmother’s boyfriend had actually committed the
assault, and the Appellate Division considered the
testimony crucial to establish the grandmother’s state of
mind, i.e., that she so feared her boyfriend that she would
attempt to pin the crime on the defendant rather than
accuse her boyfriend for fear of incurring his wrath.

N. Tender Years

N.J.R.E. 803(c)(27) was initially adopted in as Evid.
R. 63(33). It was proposed in State v. D.R., 109 N.J. 348
(1988), to alleviate the difficult problems of proof in
sexual assault cases involving children.

A child victim’s spontaneous out-of-court account of
an act of sexual abuse may be highly credible because of
its content and the surrounding circumstances. The
Supreme Court in D.R. believed that the adoption and
application of a modification of the hearsay rule in
criminal prosecutions would enable the judicial system
to deal more sensitively and effectively with the difficult
problems of proof inherent in child sex abuse
prosecutions.

The rule states:

Statements by a child relating to a sexual offense. A
statement by a child under the age of 12 relating to sexual
misconduct committed with or against that child is
admissible in a criminal, juvenile, or civil proceeding if (a)
the proponent of the statement makes known to the
adverse party his intention to offer the statement and the
particulars of the statement at such time as to provide him
with a fair opportunity to prepare to meet it; (b) the court
finds, in a hearing conducted pursuant to R. 104(a), that
on the basis of the time, content and circumstances of the
statement there is a probability that the statement is
trustworthy; and (c) either (i) the child testifies at the
proceeding, or (ii) the child is unavailable as a witness and
there is offered admissible evidence corroborating the act
of sexual abuse; provided 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 R. 601.

The trial court must make a preliminary finding that

the out-of-court statement is sufficiently reliable based

on the “time, content and circumstances of the statement

and then decide what is the probability that the

statement is untrustworthy.” State v. Smith, 158 N.J.

376, 389 (1999); State v. D.G., 157 N.J. 112, 128

(1999); see also State v. Delgado, 327 N.J. Super. 137

(App. Div. 2000) (admission of statements of children

under 12 in sexual assault cases should be reviewed under

N.J.R.E. 803(c)(27) and not N.J.R.E. 803(c)(5),

recorded recollection). The court should compare key

factors such as the spontaneity and consistency of the

child’s responses to questions and the language and

terminology used by the child. State v. Smith, 158 N.J.

at 389-90, citing State v. Michaels, 136 N.J. 299, 318

(1994).

The determinative age is that of the child when the

statement is made, not that at the time of trial. State v.

Roman, 248 N.J. Super. 144, 152 (App. Div. 1991).

State v. Maben, 132 N.J. 487 (1993), addresses the

situation where the State seeks to offer the statement of a

child who is unavailable to testify, requiring a probing

inquiry of the State’s efforts to locate a missing witness to

ensure that the search was duly diligent.

The notice requirement has been viewed as a “critical

element” of the rule and “courts should be very reluctant

to admit evidence under the tender years exception unless

proper and timely notice has been given.” State v. D.G.,

157 N.J. at 128-29; see also State v. W.L., 292 N.J. Super.

100, 113 (App. Div. 1996); State in Interest of S.M., 284

N.J. Super. 611 (App. Div. 1995).

XII. IMPEACHMENT (See also, PRIOR

CONVICTIONS, supra)

A. Impeachment and Immunity

In New Jersey v. Portash, 440 U.S. 450, 460 (1979),

the U.S. Supreme Court held that the defendant’s prior

testimony before the grand jury under a grant of

immunity could not be used to impeach him at his own

criminal trial later on.

B. Impeachment and Miranda

A statement elicited from a defendant in violation of

the rules set forth in Miranda v. Arizona, 384 U.S. 436

(1966), may still be used to impeach his credibility as a