“must have” struggled to reach its verdict, and was
“absolutely certain” that the witness’ reliability problems
“would have become insurmountable hurdles.”
In State v. Maben, 132 N.J. 487 (1993), the New
Jersey Supreme Court ruled that before the State may
introduce hearsay statements pursuant to the tender
years exception, Evid. R. 63(33), (now N.J.R.E.
803(c)(27)) the State must prove that the child is “truly
unavailable.” The State must demonstrate to the trial
court that it has exercised “due diligence” in its attempt
to locate a missing witness.
In State v. Michaels, 136 N.J. 299 (1994), the New
Jersey Supreme Court gave defense counsel a potent
weapon to fight charges of child abuse against their
clients. The Court ruled that since it is generally
accepted that a coercive or highly suggestive
interrogation technique can create a significant risk that
the interrogation itself will distort the child’s recollection
of events, thereby undermining the reliability of the
statements and subsequent testimony of that child, if a
defendant comes forward with “some evidence” that the
victim’s statements were the product of suggestive or
coercive interview techniques, a pretrial N.J.R.E. 104
(formerly Evid. R. 8) hearing must be held. At that point,
it becomes the State’s burden to prove by “clear and
convincing evidence” that the statements and testimony
are reliable. The ultimate determination for the trial
court to make is whether, despite the presence of some
suggestive or coercive interview techniques, under the
totality of the circumstances of the interviews, the
statements or testimony retain a sufficient degree of
reliability to outweigh the effects of the improper
interview techniques. The State may also demonstrate
that the investigatory procedures used did not have the
effect of tainting an individual child’s recollection of an
event. To meet its burden, the State may call experts with
regard to the suggestiveness of the techniques and
defendant can counter with his or her own experts.
Neither expert should proffer any opinion as to the
child’s credibility. The State may also use independent
indicia of reliability to demonstrate the reliability of the
child’s statements.
The Court enumerated a list of factors to consider in
determining whether the interrogation could have
affected the reliability of a child’s statements: a lack of
investigatory independence; pursuit of a preconceived
notion on the part of the interviewer as to what happened
to the child; use of leading questions; a lack of control of
outside influences on the child’s statements, such as
conversations with parents or peers; the use of incessantly
repeated questions; explicit vilification of the alleged
perpetrator; an interviewer’s bias with respect to a
suspect’s guilt or innocence and transmission of that
belief through the tone of voice, mild threats, praise,
cajoling, bribes and rewards and any resort to peer
pressure.When victim-impact evidence is presented in capital
prosecutions, minor witnesses generally should not be
permitted to present this type of testimony. Minors
should not give victim-impact evidence unless there are
no suitable adult survivors and the child is the closest
living relative to the murder victim. State v. Muhammad,
145 N.J. 23, 54 (1996).IX. RECANTATION
N.J.R.E. 607, formerly Evid. R. 20, provides that
prior inconsistent statements can be offered substantively
to prove the truth of a matter asserted if the statements are
in a form which satisfy the reliability criteria established
by N.J.R.E. 803(a)(1) (prior testimony or a written
statement signed by the witness in circumstances
establishing its reliability or given under oath subject to
the penalty of perjury), whether the prior inconsistent
statement is offered by the proponent of a witness or
another party. This generally resolves the problem of the
witness who gives the police a pretrial statement and then
recants when called to the witness stand. See State v. Ross,
80 N.J. 239, 248-250 (1979); State v. Hacker, 177 N.J.
Super. 533, 537 (App. Div. 1981), certif. denied, 87 N.J.
364 (1981). Both Ross and Hacker appear to disfavor the
prior approved practice of the trial judge calling the
recanting witness, previously determined on voir dire, as
the court’s own witness so as to enable both parties to
cross-examine the witness and confront him with his
prior statements. See State v. Singleton, 158 N.J. Super.
517 (App. Div.), certif. denied, 79 N.J. 470 (1978). Since
the old “voucher” rule previously embodied in Evid. R. 20
(i.e., one “vouches” for the credibility of one’s own
witnesses) has been eliminated, and in view of the
available use of prior inconsistent statements under
N.J.R.E. 607/Evid. R. 20, it appears unnecessary for the
court to neutrally call the witness as its own. See State v.
Ross, supra, at 252-253; State v. Hacker, supra, at 537. See
also State v. Gross, 121 N.J. 1, 7-8 (1990).X. EXPERT TESTIMONY
When expert testimony, in the form of a psychiatric
witness with a report, is placed in evidence, the court
should hold an in camera review to determine whether
fairness compels disclosure of otherwise privileged