The Court continued: N.J.R.E. 803(c) (27), as presently constructed, did not authorize the admission of John’s video-recorded statement. Before admitting a child’s out-of-court statement, the trial court must determine whether “there is a probability that the statement is trustworthy.” N.J.R.E. 803(c) (27). The Court has identified “a non-exclusive list of factors relevant to evaluating the reliability of out-of-court statements made by child victims of sexual abuse, including the mental state of the declarant.” State v. P.S., 202 N.J. 232, 249 (2010). Clearly, one consideration in assessing a child’s mental state must be whether the child is able to distinguish between fantasy and reality and whether the child can communicate in a way that shows the child has the mental capacity to tell the truth and to be understood by the trier of fact. A judicial declaration that a child is incompetent to testify should also have some bearing on determining the admissibility of a child’s out-of-court statement. Given the totality of the circumstances, the trustworthiness of John’s video-recorded statement is not supported by sufficient credible evidence in the record. John’s video-recorded statement was wrongly admitted into evidence.
After excising from the record John’s video-recorded statement, the remaining evidence — even when viewed in the light most favorable to the State — is insufficient to support a sexual-assault adjudication beyond a reasonable doubt. The remaining evidence consists of John’s incompetent testimony and Grace’s hearsay testimony that, as John walked home with her after exiting the bus, he said, “Alex touched his belly button and pee-pee.” The statement does not tell us whether the alleged touching was accidental, which of the two Alexes did the touching, or when and where the incident occurred. In addition, no competent evidence corroborates John’s single statement made to Grace. The remaining evidence is insufficient to support the sexual-assault adjudication against Alex.
The appellate prosecutors likely focused their unsuccessful arguments on two points raised in final paragraph. The first is that the admission of evidence is subject to an “abuse of discretion” standard and great deference should therefore be given to the trial judge’s decision. The second unsuccessful argument is that there was other competent evidence in the record to support a conviction even without the incompetent child’s statements.