[234 NJSuper Page 435] Before this Court is the State's motion to permit a child victim of sexual abuse to testify via closed circuit television, in an out-of-court setting, against her alleged abuser pursuant to N.J.S.A. 2A:84A-32.4. As a preliminary matter, this Court must first decide the constitutionality of the New Jersey statute in light of the recent U.S. Supreme Court decision in Coy v. Iowa, U.S. , 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988). For the reasons set forth below, we find the New Jersey statute to be constitutional and not violative of a defendant's Sixth Amendment right to confront witnesses against him. Further, we find this an appropriate situation in which to allow the child victim to testify in a manner consistent with subsection (b) of N.J.S.A. 2A:84A-32.4.
This case concerns the alleged sexual abuse of a ten-year-old female child. Beginning sometime in early 1986, the defendant in this case allegedly began to sexually abuse his stepdaughter. The alleged abuse continued for a period of approximately fourteen months.
On March 14, 1987, the victim was taken to Palisades Police Department by her nine-year-old girlfriend. The victim's statement to the police alleged that her stepfather had been sexually abusing her for the past year. An investigation ensued which resulted in the defendant being arrested and eventually indicted on six counts of aggravated sexual assault in the first degree contrary to the provisions of N.J.S.A. 2C:14-26.
This Court is now asked to find N.J.S.A. 2A:84A-32.4 constitutional and to apply its provisions to allow this child victim to testify at trial against the defendant outside of the normal courtroom setting and out of the presence of the defendant.
I. THE CONSTITUTIONALITY OF N.J.S.A. 2A:84A-32.4
The New Jersey statute involved, provides in pertinent part that:
a. In prosecutions for aggravated sexual assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, or child abuse, or in any action alleging an abused or neglected child under P.L.1974, c. 119 (C.9:6-8.21 et seq.), the Court may, on motion and after conducting a hearing in camera, order the taking of the testimony of a witness on closed circuit television at the trial, out of the view of the jury, defendant, or spectators upon making findings as provided in subsection b. of this section.
b. An order under this section may be made only if the court finds that the witness is 16 years of age or younger and that there is a substantial likelihood that the witness would suffer severe emotional or mental distress if required to testify in open court. The order shall be specific as to whether the witness will testify outside the presence of spectators, the defendant, the jury, or all of them and shall be based on specific findings relating to the impact in the presence of each. [ N.J.S.A. 2A:84A-32.4(a), (b)]
The question of the statute's constitutionality hinges on the issue of whether taking a witness' testimony out of the normal courtroom setting, via closed circuit television, violates the
defendant's Sixth Amendment right to be confronted by witnesses against him.*fn1 This issue was previously addressed by our Appellate Division in State v. Bass, 221 N.J. Super. 466 (App.Div.1987). In that case, the Court found that the New Jersey statute did not violate the defendant's Sixth Amendment right of confrontation. The Court based its opinion on the U.S. Supreme Court decision in Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), which distinguished between the Sixth Amendment "preference" of face-to-face courtroom confrontation and its primary "secured" right of cross-examination. Id. at 63, 100 S. Ct. at 2537. The Appellate Division therefore found that the right to in-court, face-to-face confrontation was not absolute and the New Jersey statute adequately protected a defendant's Sixth Amendment right.
However, the Bass case was decided prior to the U.S. Supreme Court decision in Coy v. Iowa, U.S. , 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988), which struck down, as unconstitutional, an Iowa ...