Justice Solomon continued in relevant part: That consideration is guided by three factors — “(1) the purpose of the rule and whether it would be furthered by a retroactive application, (2) the degree of reliance placed on the old rule by those who administered it, and (3) the effect a retroactive application would have on the administration of justice,” Henderson, 208 N.J. at 300 — which do not receive “equal weight,” id. at 301. The first factor, the purpose of the new rule, is often the pivotal consideration. Here, application of that first factor rules out full retroactivity. J.L.G. sought to enhance the fact-finding process; the J.L.G. Court did not conclude that admission of CSAAS testimony substantially impaired the accuracy of that process. Indeed, J.L.G. acknowledged the Court’s efforts in the years before to ensure the accuracy of past verdicts by refining CSAAS evidence. J.L.G.’s limitation of CSAAS evidence thus bears upon the Court’s own standards for criminal justice and is unsuitable for complete retroactivity.
The first factor also militates against limiting the application of J.L.G.’s rule to future cases, aside from J.L.G. itself. The typical example of a new rule that would generally be applied only prospectively is an exclusionary rule whose primary goal is deterrence. The rule set forth in J.L.G. aimed to do more than to forestall certain conduct going forward — it was designed to enhance the reliability of the factfinding process. In short, the first factor favors pipeline retroactivity. The Court therefore considers whether the second and third retroactivity factors outweigh the first here. Under the degree-of-reliance factor, the State in each of these cases administered the old rule in good faith reliance on then-prevailing constitutional norms. As to the effect a retroactive application would have on the administration of justice, it is estimated that approximately forty cases would be affected by pipeline retroactivity — a number far short of that held sufficient in Henderson to warrant non-retroactivity. Giving pipeline retroactivity to J.L.G. would not present an unreasonable burden on the administration of justice. When all factors bearing upon retroactivity are weighed, pipeline retroactivity is appropriate.
The Court is mindful of and finds compelling the survivors’ interests here but cannot place their well-founded concerns about having to testify again above a defendant’s right to a fair trial. Having concluded that pipeline retroactivity applies, the Court considers whether admission of CSAAS expert testimony in each defendant’s case was reversible error. Weighing the evidence presented against G.E.P. and finding no abuse of discretion in the trial court’s determinations as to the additional evidentiary issues G.E.P. raised, the Court concludes that the trial court properly denied G.E.P.’s motion for a mistrial. The other cases, aside from the CSAAS evidence presented, were based largely upon the testimony of R.P., C.P., C.K., and their alleged victims. CSAAS testimony bolstering the alleged victims’ testimony was thus sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.
The Court’s reference to alleged victims having to testify again assumes that there will be re-trials among the estimated forty-four cases with defendants that benefit from pipeline retroactivity. It is likely that many of those cases will resolve with a negotiated plea agreement that makes additional victim testimony unnecessary.
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