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
Mr. Sisto did an absolutely fantastic job on my case. He achieved the best possible result for me, and really made me feel comfortable and that he had my best interest at heart. He kept in constant communication with me, was very prompt in his response to my calls and emails, and he went above and beyond in answering any and all questions that I had. His professionalism and the lengths to which he went to secure a good result for me really helped make a stressful situation feel better. If you ever find yourself in need of legal representation, I highly recommend Fred Sisto. You will not regret it.
Michael G
Google star 1Google star 2Google star 3Google star 4Google star 5
I recently retained Mr. Fred Sisto to represent my son regarding a very serious legal matter. If not handled correctly these charges could have resulted in bad consequences for my son's future prospects. Mr. Sisto's knowledge of the criminal justice system is evident since he was able to get all charges dropped as well as getting them expunged from his record. If you need a criminal justice attorney who will respond quickly to all your questions and concern,as well as achieve a satisfactory solution to your case I strongly recommend Attorney Fred Sisto.
Joseph M
Google star 1Google star 2Google star 3Google star 4Google star 5
Called back within 10 minutes,very easy to talk to. Not judgmental at all. I am hopeful about the outcome.
Colleen H
Google star 1Google star 2Google star 3Google star 4Google star 5
He is a very educated human being let alone a fantastic lawyer i HIGHLY HIGHLY recommend him .. knowledgable to the point and always on the money !!
Lukas A
Google star 1Google star 2Google star 3Google star 4Google star 5
Knowledgeable and reasonable attorney who gets things done. You will not be disappointed.
1093Nj
Google star 1Google star 2Google star 3Google star 4Google star 5
Muy buen abogado lo rrecomiendo!!
Victor N
Google star 1Google star 2Google star 3Google star 4Google star 5
Great Job! Enjoy getting the updates.
Ed R
Google star 1Google star 2Google star 3Google star 4Google star 5
Fred has helped me on two different occasions with his legal practice and is a top notch attorney. He also gives great advice as a person to go with his legal expertise. Highly recommend anyone looking for an attorney to contact Fred!
Connor W
Google star 1Google star 2Google star 3Google star 4Google star 5
Very informative. Would not hesitate to use Attorney Sisto.
Rose C
Google star 1Google star 2Google star 3Google star 4Google star 5
Fantastic lawyer, I had two charges that were thankfully dropped thanks to Fred. If you're looking for a great lawyer, Fred Sisto is the guy to call. 5 stars. Thank you Fred Sisto.
Dan M