The Tender Years Exception to the Hearsay Rule (Part 1)

by | Nov 10, 2018 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

On July 11, 2018, the New Jersey Supreme court decided the case of State in the Interest of A.R. The principal issue was the validity of the incompetency proviso of the “tender years” exception to the hearsay rule.

Justice Albin wrote the unanimous opinion and held in relevant part as follows: In the sexual assault trial of fourteen-year-old “Alex,” the family court admitted into evidence pursuant to N.J.R.E. 803(c)(27) — the tender-years exception to the hearsay rule — the video-recorded statement that seven-year-old “John” gave to police, in which he alleged that Alex had sexually touched him on a school bus. John, who suffers from severe developmental disabilities, who during out-of-court and in-court questioning was unable to distinguish between fantasy and reality, and who was declared incompetent as a witness by the court, was permitted to testify pursuant to the incompetency proviso of N.J.R.E. 803(c) (27). The Court considers that determination, as well as the family court’s adjudication of Alex as delinquent of committing sexual assault.

Fourteen-year-old Alex was charged in a juvenile delinquency complaint with committing sexual assault “by contact” on seven-year-old John. The complaint specifically alleged that Alex “on one occasion rubbed John’s penis with his hand.” The alleged assault occurred on a bus transporting eighteen special-needs children home from summer school.

The family court conducted a hearing to determine the admissibility of the statements John made to a detective. John’s mother’s cousin (“Grace”) testified that on July 3, 2014, she went to the bus stop to pick up John. While walking home, John told Grace that “Alex touched his belly button and pee-pee.”  Grace did not ask any follow-up questions. Grace later called John’s mother and had no further discussion with John about the subject. John’s mother reported the incident to the police five days later.  Detective Abromaitis testified about his fourteen-minute recorded interview from July 21, 2014.

This is a relatively good fact pattern for the defense to bring about a change in the hearsay rules. While any allegation involving a sexual assault against a child is disturbing, the lack of physical harm and sexual penetration make it easier to conduct an objective assessment of the evidence rule at issue.

Excellent rating
Based on 287 reviews
Google star 1Google star 2Google star 3Google star 4Google star 5
Google star 1Google star 2Google star 3Google star 4Google star 5
Using Fredrick Sisto for my attorney was a great experience. He was very easy to understand and work with. Also very good at his job and hard working. I would recommend to anyone who is seeking an attorney!
Thomas L
Google star 1Google star 2Google star 3Google star 4Google star 5
Best in the business. Very professional.
Timothy M
Google star 1Google star 2Google star 3Google star 4Google star 5
Mr. Fred Sisto handled a case regarding my business. He was always available to answer my calls directly and helped me with any questions I had. He also had the case dismissed before I was even able to make it to the court room! I know it can be difficult when finding an attorney but I know I made no mistake choosing the law offices of Frederick Sisto, I highly recommend him!!
Kari J
Google star 1Google star 2Google star 3Google star 4Google star 5
Fred Sisto is an excellent attorney who works diligently and thoroughly to support, advise, and guide you through your legal difficulties. He is down-to-earth, advises you well, and his cost is comparable and well-worth it based on the service and expertise that he provides. Fred was able to get me the best possible outcome for my situation based on the possibilities and he was direct and honest with me throughout the process. John McDonnell
John M
Google star 1Google star 2Google star 3Google star 4Google star 5
Mr. Sisto was knowledgeable preofessional and experienced. He knew the right steps to take every step of the way and went above and beyond to make sure that I understood the situation. Mr. Sisto will have your back in any legal matter!
Corey S
Google star 1Google star 2Google star 3Google star 4Google star 5
Like clockwork thank you for all the info
Lee M
Google star 1Google star 2Google star 3Google star 4Google star 5
I have sought out Mr. Sisto for two traffic related cases. His hard work and dedication to getting results for me was very evident from the get go. He was very informative throughout the entire process of working on my cases and during the court sessions as well. Very professional and very friendly. If anyone in the area is looking for a very good and quality representation, Mr. Sisto is a go to.
Brett S
Google star 1Google star 2Google star 3Google star 4Google star 5
Fred is a very competent attorney. He is knowledgeable, thorough, effective and possesses outstanding interpersonal skills. He provided excellent representation in my case and obtained a favorable outcome.
Michael G
Google star 1Google star 2Google star 3Google star 4Google star 5
Not to long ago I ran into a very serious legal issue for the first time in my life, I'm closing in on 60. Needless to say I was unsure of the process. I was fortunate that a friend recommended Fred. Fred handled my case in a professional and courteous manner yet was very down to earth and straight forward. It took nearly 9 month to resolve and during that time Fred was always available to answer questions, explain the process and most of all alleviate my stress. I feel we got the best possible outcome and I would highly recommend Fred to anyone facing a legal/criminal matter
Manny P
Google star 1Google star 2Google star 3Google star 4Google star 5
Very good Lawyer , easy to work with . Gets results !
William C