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State v. Zamorsky

Decided: May 3, 1978.


On appeal from Superior Court, Law Division, Hunterdon County.

Lora, Seidman and Milmed. The opinion of the court was delivered by Seidman, J.A.D.


These appeals, which we have consolidated on our own motion, arise out of judgments of conviction entered after jury trials, at which different judges presided, in each of which defendant was found guilty of impairing the morals of a minor. The first involved the alleged molestation of K, a six-year-old female child on March 12, 1975 (Zamorsky I); the other, a like offense against D, another female child of similar age, on March 10, 1975 (Zamorsky II).

While numerous assignments of error are urged in each appeal, we propose to deal only with those relating to the trial judge's determination that each child was competent to testify as a witness, and to the requirement of Evid. R. 18 that "a witness before testifying shall be required to take an oath or make an affirmation or declaration to tell the truth under the penalty provided by the law." We limit ourselves to a consideration of those issues because we are convinced that in each case, in one or the other of those areas of concern, there was substantial and prejudicial error necessitating a reversal of the judgments and a remand for a new trial.

We comment, initially, on defendant's assertion that the trial judge in each case abused his discretion by conducting in the presence of the jury the preliminary hearing on the qualification of the child in question to be a witness, despite the objection of defense counsel. He contends that the jury was thereby prejudiced into believing the child's testimony to be credible. We think it may be preferable in the case of children of tender years not to hear the matter before the jury. Evid. R. 8(1) provides in pertinent part that where the issue to be determined by the judge is the qualification of a person to be a witness, he " may hear and

determine such matters out of the presence of the jury" (emphasis supplied). It is thus clear that whether to exclude the jury from the courtroom rests in the sound discretion of the trial judge. His action in that regard, even over objection, will not lead to a reversal unless it is shown that there was an abuse of discretion resulting in manifest wrong or injury to the defendant. State v. Huff , 14 N.J. 240, 248-249 (1954). We discern no such mistaken exercise of discretion here on the part of either trial judge.

Defendant challenges next the qualification of the children to be witnesses, maintaining that neither was capable "of understanding the duty of a witness to tell the truth." Alternatively, in the case of D, he argues that allowing her to testify "constituted a denial of due process where her testimony consisted of automatic and conditioned responses produced by the coaching and prompting of both the prosecutor's office and her mother."

We said in State v. Grossmick , 153 N.J. Super. 190 (App. Div. 1976), aff'd o.b. 75 N.J. 48 (1977), that

There is no issue here of the capacity of the children to express themselves so as to be understood by the judge and jury. Evid. R. 17(a). Rather, defendant's reliance is on that portion of the rule which declares a person disqualified to be a witness who "is incapable of understanding the duty of a witness to tell the truth." Evid. R. 17(b).

The adjudication of moral responsibility is to be made by the trial judge upon a preliminary examination. State v. Labriola , 75 N.J.L. 483, 484 (E. & A. 1907); Morrone v. Morrone , 44 N.J. Super. 305, 313 (App. Div. 1957); Hare

v. Pennell , 37 N.J. Super. 558, 565 (App. Div. 1955); Evid. R. 8(1). Its determination, largely a matter of discretion, will not be set aside unless plainly shown to have been made without evidence to support it. Hare v. Pennell, supra at 565; State v. Gambutti , 36 N.J. Super. 219, 223 (App. Div. 1955).

Interrogating a child offered as a witness, where the qualification of the child to testify is in issue, is a difficult task which cannot be performed in a pro forma or perfunctory manner. Since the goal is to ascertain the child's comprehension of the duty of a witness to tell the truth, it is first necessary to explore the child's conceptual awareness of truth and falsehood. The younger the child, the more searching the inquiry must be. When it has been established that the child understands the meaning of those terms, the next area of inquiry is not, as is so often the case, whether the child will tell the truth , but rather whether the child understands that it is his or her duty to tell the truth. This is the essence of moral responsibility. We perceive no need to dwell at length on how the witness' expression of that duty is to be articulated or on what it should be founded. It matters not that the recognition of the duty to speak the truth may emanate from a source other than one's religious upbringing. It should suffice if the child understands that it is wrong to tell a lie and that one must always speak the truth. If the trial judge is satisfied from his interrogation that the child is sensitive to his or her obligation to tell the truth, we will not disturb his conclusion unless it is plainly unsupported by the evidence.

In Zamorsky I the trial judge elicited from K, who was seven years old at the time of the trial, that her teachers had instructed her to tell the truth. She could not say, however, what would happen if she did not tell the truth. She said she never heard "about getting punished for it," although her mother "sometimes" spanked her for telling a lie. But at the same time she denied ever telling a lie, except "a little white lie, sometimes." She repeated a number of

times her "promise to tell the truth," and acknowledged, in response to the judge's inquiry, that "it would be bad to tell a lie." At the conclusion of the interrogation, the trial judge said: "I think she ...

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