On certification to the Superior Court, Appellate Division, whose opinion is reported at 200 N.J. Super. 560 (1985).
For affirmance and modification -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal -- None. The opinion of the Court was delivered by Handler, J.
The defendant in this case was convicted of sexual offenses against his infant daughter. The appeal calls upon us to consider sensitive and delicate issues surrounding the crime of incest and the sexual abuse of children. When the child-victim is the only witness to such crimes, as is often the case, the verdict hinges on the testimony of the child. Complicating further the quest for truth, prosecutions of incestuous sexual offenses often occur against a background of bitter animosity between the parents of the child, frequently in the context of hateful divorce and custody battles, with each parent inevitably exerting influence on the child. Normal concerns touching upon the child's reliability as a witness are understandably heightened in such a setting. Defendants, attempting to investigate and perhaps impugn the child's competence or credibility, often request that the child submit to psychiatric or psychological testing. This case requires a determination of when it is appropriate for a court to heed such a request.
The parents in this appeal, the defendant, R.W., and his wife, C.W., were married in 1977. (Initials are used to refer to the principal parties in order to protect the identity of the infant child). R.W. is a self-employed piano tuner. C.W. works with autistic children and understands behavior modification. R.E.W. was born to the couple in March of 1980. She was raised in an open manner, one in which there were no inhibitions regarding nakedness, and was taught the proper names for the anatomy. Both parents would bathe R.E.W., but it was routine for her to bathe with her father, a practice initiated by the mother.
Marital discord developed between the parents, and C.W., on December 1, 1982, left the marital home with R.E.W. The couple agreed to share custody, with R.W. allowed custody Friday evenings through Tuesday mornings.
According to C.W., several incidents led her to conclude that when R.E.W. stayed with R.W., they would play various sexual games together in bed. The first incident occurred in March, 1983, when R.E.W., after returning from a weekly stay with R.W., had a tantrum that C.W. thought was unusually intense and lengthy. Following the tantrum, R.E.W. made a statement that indicated sexually bizarre conduct by R.W. Shortly afterwards, C.W.'s sister, the child's aunt, informed C.W. that R.E.W., while bathing with her, made some peculiar comments that indicated sex-laden play on the part of R.W. The final incident occurred one evening when C.W. noticed that R.E.W.'s vagina was red and swollen after a weekend visit with her father; questioning of the child by C.W. suggested that R.W. had had intercourse with his three-year-old daughter. A physical examination by a physician the following day revealed no evidence of sexual abuse. However, in the presence of the doctor and others, including the police, R.E.W. physically demonstrated, with the aid of an anatomically correct doll, the sexual acts in which defendant had her engage.
These incidents resulted in an investigation, after which defendant was indicted in Monmouth County for three offenses: aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); sexual assault, N.J.S.A. 2C:14-2(b); and endangering the welfare of a three-year-old, N.J.S.A. 2C:24-4(a). Defendant pleaded not guilty to the indictment.
Defense counsel made two pretrial motions to compel the psychiatric or psychological testing of R.E.W. The first motion was "to determine whether a 3 year old child, now in excess of 3 1/2 years does have competence to be a witness under the standards set forth in Rule 17 of the New Jersey Rules of Evidence." The second supplementary motion was "to determine whether an infant of that age would in all psychiatric or psychological probability have sensory and/or mental defects that would be relevant in assessment of that witness' credibility." Informed by defense counsel that the child did not suffer from a "learning disability or anything of that nature," the trial
court denied the motions, concluding that it would not need the help of a psychiatrist or psychologist in determining a young child's competency.
At trial, immediately preceding R.E.W. taking the stand, the trial judge conducted a hearing in which he questioned R.E.W. regarding her ability to tell the truth. R.E.W. equated truthfulness with telling what was "real" and lying with telling that which was "pretend"; she also indicated that she knew she would get into trouble if she did not tell the truth. Defense counsel also questioned the child, and then argued that she was incompetent to serve as a witness. The trial judge rejected defense counsel's contentions, concluding, "I'm satisfied she's competent to testify, that she understands the concept of the oath and what it is to tell the truth, that there is no need to swear her on the Bible and that she's qualified to testify."
Later, in the course of the trial, R.E.W. testified as a witness. She was able to relate her name, age, the school she attended, and her teacher's name. She also plainly described the acts of sexual conduct that were the subject of the charges. At the close of the State's case, the aggravated assault charge was dismissed because of insufficient evidence of penetration.
Defendant on his case denied the accusations made against him. He indicated that since the separation from his wife there was great hostility between them. The jury found defendant guilty of sexual assault and endangering the welfare of a minor. Defendant was thereafter sentenced to concurring terms of seven years with a three-year parole ineligibility provision on the former conviction and four years on the latter.
On appeal the Appellate Division reversed the convictions and remanded for a new trial. 200 N.J. Super. 560 (1985). In relevant part the Appellate Division held that the trial court should have allowed a psychological and psychiatric examination in determining the competency of the infant to testify as a witness.
The State filed a petition for certification seeking review of the Appellate Division's order for psychiatric testing of R.E.W., as well as a review of two other reversible errors relating to improper jury influence.*fn1 Certification was denied. 101 N.J. 314 (1985). The State then petitioned for rehearing only as to the issue of the psychiatric examination of the infant, R.E.W. This was later supplemented with a request that this Court reconsider its denial of the two other grounds because the State was unable to retry the defendant due to the inability of the infant now to recall the alleged sexual abuse. The motion for reconsideration together with the petition for certification was granted, limited solely to the issue involving the pretrial psychiatric or psychological examination of R.E.W. 101 N.J. 206 (1985).
The general rule is that all persons are qualified to testify as witnesses, so long as they are competent to do so. See Evid. R. 7. The determination of whether a person is competent to serve as a witness lies within the discretion of the court. See State v. Butler, 27 N.J. 560, 602 (1985); State v. Gambutti, 36 N.J. Super. 219, 223 (App.Div.1955). At common law, a court would determine whether the witness "[has] sufficient capacity to observe, recollect and communicate with respect to ...