The Tender Years Exception to the Hearsay Rule (Part 3)

by | Nov 12, 2018 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

Justice Albin continued: The defense presented three witnesses. The bus aide stated that the “big kids,” such as Alex, sat in the back of the bus and the “small kids” sat in the front — and that she sat in the middle, separating the two groups. She maintained that Alex did not sit with John. The school bus driver corroborated the seating arrangement and did not see or hear anything that gave him concern. The transportation liaison confirmed that two children named Alex were on the bus that day, one of whom went to elementary school and the other to high school.

The family court adjudicated Alex delinquent. Alex appealed. The Appellate Division held that John was effectively unavailable for cross-examination, and therefore the admission of his statement to the detective violated Alex’s federal confrontation rights. 447 N.J. Super. 485, 490 (App. Div. 2016). The panel did not address any state-law evidentiary claims and remanded to the family court to assess whether the State’s remaining evidence is sufficient to prove the adjudication beyond a reasonable doubt. Id. at 525. The Court granted the State’s petition for certification.  230 N.J. 425 (2017).

The Supreme court of New Jersey reverses Alex’s delinquency adjudication on state-law grounds, concluding that the video-recorded statement did not possess a sufficient probability of trustworthiness to justify its introduction at trial under N.J.R.E. 803(c) (27). Striking the juvenile’s recorded statement from the record does not leave sufficient evidence in the record to support, on any rational basis, the adjudication of delinquency against Alex. Accordingly, the sexual assault charge must be dismissed. The Court concludes that the incompetency proviso of the present version of N.J.R.E. 803(c) (27) is flawed and remands that rule for review to the Supreme Court Committee on the Rules of Evidence.

The Court’ s decision to base their holding on state law grounds insulates their opinion from review by the United States Supreme Court. That is because the New Jersey Supreme Court is the final arbiter of state law issues, as opposed to federal law issues. An exception to this general rule would be if a state law provided less rights than the federal constitution. In that case, there would be a conflict with federal law that the United States Supreme court would have jurisdiction to decide.