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

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.