On certification to the Superior Court, Appellate Division, whose opinion is reported at 214 N.J. Super. 278 (1986).
For reversal -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Stein, J.
In this appeal we confront a serious and recurring legal issue in child sexual abuse prosecutions: the admissibility of the child's out-of-court account of the sexual assault. Defendant, convicted on three counts charging sexually abusive conduct with his two-and-one-half year old granddaughter, challenges as plain error the testimony of a non-treating psychologist that recounted the child's graphically descriptive explanation of the sexual contact. Other than the defendant's confession, which he repudiated during his trial testimony, the victim's hearsay statements were the most persuasive evidence of defendant's guilt.
Acknowledging that the victim's out-of-court statements were inadmissible under existing exceptions to the hearsay rule, the Appellate Division, relying primarily on Evidence Rule 5, adopted a "heretofore unstated" exception to the hearsay rule that would authorize admissibility of a child's out-of-court statements concerning sexual abuse if made to a parent, confidant, physician, or other professional under circumstances that afford "sufficient indicia of reliability to justify admission." State v. D.R., 214 N.J. Super. 278, 293, 296-97 (1986). The court determined that the out-of-court statements in this case were inherently reliable, sustained their admissibility under the newly-adopted hearsay exception, and affirmed defendant's convictions. Id. at 298, 300.
We are in full agreement with the Appellate Division's conclusion that the difficult problems of proof in child sex-abuse cases would be alleviated by a modification of the hearsay rule that addresses the admissibility of out-of-court victim statements such as the one at issue here. Our concept of the appropriate form of such a modification differs somewhat from
that proposed by the Appellate Division. However, we hold that the recognition of such a fundamental change in the hearsay rule solely by judicial decision is inconsistent with the procedure set forth in the Evidence Act, 1960, that involves collaboration among all three branches of government. N.J.S.A. 2A:84A-33 to -45. In our view, so significant a modification of the Rules of Evidence should be adopted in accordance with the prescribed statutory procedure, which as explained below we shall initiate in this opinion. This compels the conclusion that the admission of the victim's out-of-court statement in this case, unauthorized by any existing exception to the hearsay rule, was plain error since it was clearly capable of producing an unjust result. R. 2:10-2. Accordingly, we reverse the conviction and remand the matter for a new trial.
The material facts are set forth in detail in the Appellate Division opinion, 214 N.J. Super. at 280-84, and for our purposes a brief summary will suffice. During 1983 the parents of the alleged victim, N.R., were embroiled in a bitter matrimonial proceeding. Because N.R.'s mother, who retained custody, resisted her husband's requests for visitation, an order was entered in April 1983 permitting visitation during two days each week while the child was at the home of her paternal grandparents. The final judgment of divorce, entered in December 1983, also provided for weekly visitation of N.R. by her father at the defendant's home during a visitation period beginning each Friday morning and ending Saturday evening.
In November 1983, N.R. began to exhibit behavioral changes that included tantrums and interruption of sleep. She also complained of vaginal soreness. N.R.'s pediatrician examined her in February 1984. Although he found no physical evidence of sexual abuse, he suggested to N.R.'s mother that she contact the New Jersey Division of Youth and Family Services (DYFS)
in order to investigate the possibility that acts of sexual abuse had taken place.
Shortly thereafter, N.R. was questioned by personnel from DYFS and from the Somerset County Prosecutor's Office. This in turn led to an interrogation of defendant in February 1984 by Investigator Mazzei of the Somerset County Prosecutor's Office. Defendant initially denied any sexual contact with N.R. After Investigator Mazzei referred to specific allegations by N.R., exhibited drawings made by N.R. with circles designating areas of physical contact, and offered to play a tape recording of N.R.'s statements, defendant admitted that on one occasion in January 1984 he had engaged in sexual contact with N.R. Specifically, he acknowledged that he had inserted his penis into the child's mouth, an act of "sexual penetration," N.J.S.A. 2C:14-1(c), that constitutes aggravated sexual assault by virtue of defendant's supervisory relationship with N.R. N.J.S.A. 2C:14-2(a). He also admitted that he had allowed the child to touch and kiss his penis and to incidental contact with N.R.'s vagina, acts of "sexual contact," N.J.S.A. 2C:14-1(d), that constitute sexual assault because of N.R.'s age. N.J.S.A. 2C:14-2(b). At Investigator Mazzei's request, defendant repeated his confession so that it could be tape-recorded.
At trial the tape recorded confession was played for the jury. Defendant testified and repudiated his admissions. He stated that he was pressured to fabricate a confession by Investigator Mazzei's threats to resume interrogation of his granddaughter and to interrogate his wife, who had a medical history that suggested susceptibility to nervous strain. He said that the content of his statement was suggested to him by Mazzei, who assured him that the investigation would be over if he was cooperative. Defendant testified that he fabricated his statement to spare his wife and granddaughter any further involvement in the investigation.
As part of its direct case, the State sought to offer the testimony of the victim, who was then just over three years old. [109 NJ Page 354] The trial court advised counsel that if the victim was found competent to testify, see Evid.R. 17, she would testify from a separate room in the presence of only the prosecuting attorney and defense counsel. Her testimony was to be seen and heard by the jury through the use of closed circuit television equipment. Defendant and his counsel would be able to communicate privately during the testimony. The procedure contemplated by the trial court has since been specifically authorized by statute. See L. 1985, c. 126, § 1 (codified at N.J.S.A. 2A:84A-32.4).*fn1
The trial court conducted a hearing out of the jury's presence to determine the victim's competency and concluded that she would not be permitted to testify. The court observed:
I am not so sure she even has the ability at this age to deal with the concept of lying and telling the truth. She seems to respond to those questions on some occasions, but on other occasions she doesn't. And for that reason I don't think it would be appropriate to permit her to testify.
Aside from defendant's admissions, the most incriminating evidence at trial was the testimony of Dr. Martin Krupnick, a clinical psychologist specializing in emotional disorders resulting from incest and child sexual assaults. Dr. Krupnick was engaged by the Somerset County Prosecutor's Office. In September 1984 -- eight months after the sexual contact acknowledged by defendant -- Dr. Krupnick interviewed N.R. on three occasions. During one of these interviews, he gave N.R. anatomically correct dolls to facilitate her ability to communicate with him. During cross-examination he acknowledged that he had requested the Somerset County Prosecutor's Office to send him the dolls after he had been informed that N.R. was able to use the dolls to explain what had happened to her. He also conceded that N.R. had been given prior opportunities to handle the dolls by people in the prosecutor's office, and that reports from that office indicated that "the child named the dolls Baby N and Grandpa R."
Dr. Krupnick testified at trial that N.R. was suffering from post-traumatic stress disorder, which he described as behavior resulting from a major traumatic event outside the normal human experience. He expressed the opinion that the trauma that caused her condition was a sexual assault. To establish the basis for Dr. Krupnick's opinion, the following testimony was elicited without objection by defendant's counsel:
Q. Other than her behavior that was reported to you, you say that you noticed specific behavior of hers yourself when you examined her that you felt was significant in formulating your diagnosis?
A. Yes. When using the anatomically correct dolls -- these are dolls that are used to allow a child to facilitate an expression of what has gone on in her past experience, and using these anatomically correct dolls, she was able to act out
and demonstrate a sexual assault, specifically talked about the penis being placed in the mouth of the young female.
During that time she showed a lot of anxiety, fear. She was very uncomfortable and requested that we terminate rather quickly from that part of the examination.
Q. Did she use the doll as a specific person?
A. Yes. She named the male doll Grandpa [R] doll and the female doll baby [N].
At the conclusion of the trial defendant was found guilty of aggravated sexual assault, N.J.S.A. 2C:14-2(a), sexual assault, N.J.S.A. 2C:14-2(b), and endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The trial court imposed concurrent sentences of fifteen years, seven years, and four years for the respective offenses.
The Appellate Division first determined that Dr. Krupnick's expert testimony concerning the victim's post-traumatic stress syndrome caused by a sexual assault was sufficient, even without the victim's incriminatory statements, to constitute independent corroborative proof adequate to sustain defendant's conviction. 214 N.J. Super. at 284-85. See State v. Lucas, 30 N.J. 37, 51-58 (1959) ("uncorroborated extra-judicial confession cannot provide the evidential basis to sustain a conviction").
Focusing on that aspect of Dr. Krupnick's testimony that recounted the victim's use of dolls to describe the defendant's sexually assaultive conduct, the Appellate Division correctly concluded that the victim's words and acts were testimonial in nature and therefore "statements," Evid.R. 62(1), constituting hearsay because they were not made in court but included in Dr. Krupnick's testimony.*fn2 Evid.R. 63. See 214 N.J. Super. at 286-88. The court also determined that the victim's statements to the Doctor were not admissible under the contemporaneous statement exception, Evid.R. 63(4)(a), or as spontaneous
utterances. Evid.R. 63(4)(b). See id. at 287-93. The court reasoned that
although N.R. was traumatized by her experience, her description of the sexual activity to Dr. Krupnick was not accompanied by evident "stress of nervous excitement" as required by Evid.R. 63(4)(b). There was related distress, but this was observed after the game with the dolls. Also, the statements were made far removed from the act, some nine to ten months later. [ Id. at 292-93].
Concluding that the victim's statements were not admissible under any of the recognized exceptions to the hearsay rule, the Appellate Division acknowledged the need for an exception that would allow into evidence, under certain conditions, testimony of out-of-court statements made by a young child relating acts of sexual abuse. The Appellate Division determined that it was empowered by Evid.R. 5 to recognize such an exception "as a matter of the common law growth of evidence law," 214 N.J. Super. at 293, and set forth the following standards defining the new exception:
[I]t appears that a court in deciding whether to admit the child's statement must determine (a) that the statement was by a child of tender years concerning the abuse or neglect of the child or sexual conduct or practices involving the child and was made to a parent or other natural confidant or to a physician or other professional at a time and under circumstances which provide sufficient indicia of reliability to justify admission; (b) that if the child is unavailable as a witness, as provided in Evid.R. 62(6), there is corroborative evidence of the act or acts described in the statement; and (c) that there was notice of the proponent's intention to offer the statement given in sufficient time in advance of the hearing as to provide the adverse party a fair opportunity to prepare to meet it. [214 N.J. Super. at 296-97 (footnote omitted).]
Applying the newly-established hearsay exception, the court determined that the victim's out-of-court statements were admissible. It concluded that the statements possessed "inherent reliability" on the basis of various factors, including
the evident naivete of the victim; her relating of the event to the psychologist under clinical conditions accepted by the court in admitting his testimony for purposes of stating the diagnosis; the child's exhibiting knowledge of sexual practices beyond her reasonably anticipated imagination; the related distress exhibited by her after relating the events and detailing the participants; the inability to procure other corroborative evidence, since only the child and defendant would have been present; defendant's confession and the congruity between the confession and the child's story; and defendant's familiarity with the statements and his opportunity to refute them. Therefore, even though the
statements are to be considered hearsay, they fall within what we now find to be an exception. We thus perceive no error in the failure of the trial judge to give a limiting instruction pursuant to Evid.R. 6. [214 N.J. Super. at 298 (footnote omitted).]
Finally, the Appellate Division rejected defendant's contention that the sentence was excessive, but agreed that the conviction for endangering the welfare of a child, N.J.S.A. 2C:24-4(a), should have been merged with the convictions for aggravated sexual assault and sexual assault, vacating the separate sentence for that offense. 214 N.J. Super. at 298-300. We granted defendant's petition for certification, ...