The Supreme Court continued: The interview began with Detective Abromaitis introducing himself. In response to the first question, “What’s up,” John stated, “Alex touched my pee-pee.” John indicated that the touching occurred “underneath my clothes.” However, when John showed the detective where he was touched using anatomical dolls, without prompting, he stated, “He touched at me by accident.” On an anatomical drawing, John referred to his “butt” as both his belly button and his behind, and at one point he referred to his navel as his “dingaleg.” In response to a leading question, John recalled that he was at home when the touching occurred, until the detective asked another leading question, and then John recalled that he was on the bus. John told the detective that he lived with “Chowder and Clarence” (cartoon characters), his “mom,” his friend Jacob, and “dragons, too.”
The family court ruled that John’s recorded statement would be admissible at trial, provided that John was available to testify. The next day, at the bench trial, John had difficulty responding to simple questions in an accurate or truthful way. The court concluded that John was not “competent to testify.” Nevertheless, pursuant to N.J.R.E. 803(c) (27), the court allowed the prosecutor to proceed with John’s direct examination. John could convey little reliable information. Although it was undisputed that John took a bus to summer school, he responded to a question about how he went to school by stating, “I was walking on the street.”
Although the family court found that John lacked “competency” as a witness, it declined to exclude from evidence John’s statements to the detective or to dismiss the case. The State recalled John to the stand. He continued to have difficulty answering simple questions. For example, he stated “It’s right,” if the prosecutor referred to a spider as a flower, and in response to a leading question, indicated that the color black might be red. John stated that Alex, whom he identified in the courtroom, touched him on “my clothes, my pee-pee and my butt.” However, John stated that a little boy named Alex sat near him and that the little boys and big boys were separated on the bus.
The fact presents disturbing concerns regarding whether incompetent people can be victimized with impunity in situations in which there is no competent witness to protect them. Even more disturbing is the potential for the accused to be imprisoned and subjected to parole supervision for life based on an incompetent person’s mistaken account.
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