On appeal from Superior Court, Law Division, Hunterdon County.
Lora, Seidman and Milmed.
[170 NJSuper Page 199] The Supreme Court granted the State's petition for certification and summarily remanded this cause to us for reconsideration
in light of its opinion in State in the Interest of R.R. , 79 N.J. 97 (1979). See 79 N.J. 485 (1979).
In each of the above-captioned matters we reversed defendant's conviction on separate indictments charging him with impairing the morals of a minor. See 159 N.J. Super. 273 (App.Div.1978). One, referred to as Zamorsky I (A-4431-75), involved the alleged molestation of a six-year old female child; the other, referred to as Zamorsky II (A-4443-75), a like offense against another female child of the same age. We dealt only with those assignments of error relating to the trial judge's determination that each child was competent to testify as a witness (we found no error in that respect), 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."
Specifically, we reversed the conviction in Zamorsky I because of our conclusion that the trial judge's explanation to the jury of his purpose in interrogating the child prior to her testifying "was such that it may well have suggested to the jury that the trial judge was satisfied from his interrogation that the child would be a credible witness, otherwise he would not permit her to testify." 159 N.J. Super. at 281. It was our view that this "implied indorsement" of the child's credibility as a witness was legally prejudicial and of such nature as to have been clearly capable of producing an unjust result. Id.
The issue in Zamorsky II was the apparently inadvertent failure to have the oath administered to the child after the trial judge determined from the voir dire that she was competent to testify as a witness. Our concept was that no oath at all was given and that the omission was reversible error in view of the mandate of Evid.R. 18. 159 N.J. Super. at 286-287.
In State in the Interest of R.R., supra ,*fn1 our Supreme Court held that Evid.R. 18 was intended to validate any oath ceremony
acceptable at common law, and that so long as the ceremony actually performed evinces a commitment by an infant to tell the truth out of fear of future punishment of any kind, the child is deemed properly sworn. 79 N.J. at 110-111.
Pursuant to the order of the Supreme Court we have reviewed Zamorsky I and Zamorsky II. Since our disposition of the appeal in the former was, as indicated, not grounded in any respect on the manner in which the oath was administered, our reversal of that conviction does not require reconsideration, and stands unchanged. However, our disposition of Zamorsky II must be reexamined.
As we said earlier, we reversed that conviction because of our belief that no oath at all was administered to the child. We have reviewed the proceedings again in order to determine whether, despite the lack of a formal oath, the voir dire , intended essentially to ascertain the competency of the child witness pursuant to Evid.R. 17, nevertheless contained within it a sufficient commitment by the child to her "special obligation to speak the truth in court" on pain of future punishment to constitute an acceptable common law oath, thus satisfying the requirement of Evid.R. 18. The voir dire by the trial judge follows:
THE COURT: * * * Now, D , we are going to have you tell these nice people all about that incident that you told your ...