On certification to the Superior Court, Appellate Division.
For reversal and reinstatement -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Clifford, Schreiber and Handler. For affirmance -- None. The opinion of the court was delivered by Pashman, J.
This case presents for review numerous issues concerning the circumstances under which the testimony of an infant witness will be deemed properly admissible in the course of a court proceeding. First, we must decide whether an infant must be given, and hence understand the significance of, the "traditional" oath administered to adults in order that his testimony be taken. Second, a determination must be made as to whether the particular infant here involved satisfied the competency requirements of Evid. R. 17. Finally, we must address the propriety of the trial court's appointment of the infant's mother to act as his interpreter.
On January 19, 1976, R.R., Jr., a 15-year-old male, was charged with an act of delinquency under N.J.S.A. 2A:4-44. Specifically, the State alleged that R.R. had sodomized a 4-year-old child -- an act which, if committed by an adult, would constitute a violation of N.J.S.A. 2A:143-2. A hearing on this charge was held on March 3, 4, and 5, 1976. Three witnesses appeared on behalf of the State: S.M. (Sean), the alleged victim of the offense; L.W., Sean's stepfather; and J.W., the child's mother. The defense presented no witnesses.
Mr. and Mrs. W. both testified that on the evening of January 11, 1976 they had gone to the movies leaving Sean at home in the care of R.R., a cousin of Mr. W., who had in the past frequently babysat for the child. The following day, the W's, noticing that Sean was acting "jittery," asked the child if anything was wrong. Sean replied that he and
R.R. had "play[ed] medicine" the previous evening, and then attempted to convey through gestures what had occurred. Sean walked into the bathroom with his stepfather, urinated, and then -- pointing to his rectum -- stated that R.R. had "mess[ed] with him back there." Sean also stated that R.R.'s actions had "hurted" him. The child's parents understood Sean's actions and words as meaning that R.R. had placed his penis in the child's rectum.
Enraged by what his stepson had told him, Mr. W. decided to arrange a confrontation between R.R. and Sean. At approximately 6:30 that evening, R.R. was summoned to the W. home, ostensibly to watch Sean while the W.'s went shopping. After R.R. had arrived, the couple left the house only to return 10 to 15 minutes later. Sean, in the presence of R.R., then informed Mr. W. that he (Sean) had told R.R. that Mr. W. knew what had occurred the previous evening. R.R. insisted that "it wasn't like that." The juvenile explained that he had been urinating when he heard Sean coughing or crying out and, in his haste to tender to the child's needs, had inadvertently walked into Sean's bedroom with his penis exposed.
Not believing R.R.'s story, Mr. W. told the juvenile that he was either going to summon the police, call R.R.'s mother, or give R.R. a beating. R.R. pleaded with Mr. W. not to notify his mother because she had already beaten him once for "messing" with Sean in the past. Mr. W. then told R.R. to "stand up like a man and fight." A fight thereupon ensued in which Mr. W. definitely had the upper hand.
The only other witness to testify was Sean, the 4-year-old alleged victim of the sodomy. Aside from R.R., Sean was the only person present when the alleged offense occurred, and hence the only witness to render a first-hand account of the events that transpired on January 11.
As soon as the prosecutor informed the court of her intention to call Sean as a witness, counsel for R.R. moved to hold Sean incompetent per se because of his age. That motion was denied. Counsel for R.R. then requested that
Sean be sworn. Sean placed one hand on a Bible and the following ceremony ensued:
The Clerk: Will you tell the truth to this Court?
The Clerk: Do you believe in God?
The Clerk: If you lie do you believe that God will punish you?
The Clerk: God will not punish you if you tell a lie? Or will
Counsel for R.R. objected on the ground that the above ceremony did not constitute the oath required of all witnesses by Evid. R. 18. He maintained that the child must be administered, and hence must understand the significance of, the "traditional" oath given adult witnesses in order for his testimony to be taken. The court disagreed, stating that the above ceremony did indeed constitute an oath inasmuch as the child promised to tell the truth on pain of future punishment. In its view, the traditional oath was not appropriate for "one so young."
The judge did rule, however, that further interrogation of the child was necessary in order to determine his "understanding [and] his ability to express himself" and thus his competency as a witness under Evid. R. 17. Upon questioning by the court and both counsel, Sean indicated that he attended school every day; that he always obeyed his teacher; that his teacher would scold him if he did things "wrong"; and that he never did things "wrong" when at home. The child was then asked if he knew what it meant to be truthful and what it meant to tell a lie. Sean responded that truthfulness "means to be good" and that if he told a lie, "I be bad." Sean also stated that if he were bad he would "get a beating," and therefore he tried to be good all the time. Finally, Sean indicated that he would not be "bad" when
answering questions in court but would instead relate what had happened "the way it [was]."
Following this voir dire, the judge ruled that Sean was not disqualified as a witness under Evid. R. 17. In his view, by equating truthfulness with good and lying with bad and by acknowledging that he would receive a beating if he were bad, Sean understood that it was his duty to tell the truth. The judge also concluded that Sean could adequately express his thoughts so as to be understood by the court.
The State then moved to have Sean's mother sworn to act as an interpreter for her son. The Prosecutor reasoned that in the course of his testimony the child might communicate through idiosyncratic speech patterns and gestures which would be understandable only to his mother. Over the objections of counsel for R.R., the judge granted the motion. He cautioned Mrs. W., however, that her function was merely to convey to the court the messages which her son might communicate, and that she could not prompt or aid Sean in any way. He further informed her that she was to interpret a particular response given by Sean only when requested to do so by the court.
The prosecutor then began questioning Sean as to the events surrounding the alleged sodomy. Sean testified that he remembered the night when his parents had gone to the movies, and that he and R.R. had been alone in the W. home. He indicated that R.R. had awakened him by pushing on his legs and told Sean to "[t]ake it easy." The following colloquy then ensued:
Q: * * * And what did [R.R.] do?
The Court: I didn't hear that.
Mrs. W.: He put his penis back here.
The Court: That's what he did?
Q: And did you have your pajamas on?