On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County.
Shebell, Gruccio and Landau. The opinion of the court was delivered by Shebell, J.A.D.
The State of New Jersey appeals from an order of the Family Part denying the State's motion made pursuant to N.J.S.A. 2A:84A-32.4 to permit the two victims, ages 3 and 4 at the time of the alleged acts in 1987, to testify via closed-circuit television in the trial of B.F., 17 years of age at the time of the alleged acts, on charges of delinquency by conduct which if committed by an adult would constitute the crimes of aggravated sexual assault, sexual assault and endangering the children's welfare. We reverse.
The judge held a hearing to determine whether the requirements of N.J.S.A. 2A:84A-32.4 were satisfied. At the hearing the State presented testimony from two experts. The first was a licensed clinical psychologist specializing in the area of child sexual abuse and the other was a licensed psychologist, certified as a school psychologist by the State of New Jersey, who also worked and lectured in the area of child sexual abuse. The judge found that these witnesses were qualified and accepted them as experts in the field.
The Family Part judge filed a written opinion wherein he discussed the testimony of the two experts and observed:
Both psychologists are sincerely anxious about the stress of their respective complaining witnesses and sincerely of the belief that their testimony in the presence of the defendant would be detrimental. Whether their anxiety is the anxiety described by the statute and is enough to overcome the constitutional mandate of confrontation is the very question to be decided by this case. The Court must decide whose "distress" we are dealing with, the psychologists and parents or the distress of the children.
However, he did not decide the question of whether the psychologists' testimony satisfied the statutory requirements because he was convinced that the "majority view"*fn1 in Coy v. Iowa, 487 U.S. , 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988), precluded use of our New Jersey protective statute. The judge stated that Coy
holds paramount the right of confrontation over a child testifiers' right to the use of non-confrontational devices, which must include closed-circuit television. Nor does the majority opinion tolerate the right of cross-examination to substitute for face-to-face confrontation. Children are not spared, though they be "distressed" or "vulnerable."
N.J.S.A. 2A:84A-32.4, which permits the testimony of a witness 16 years of age or younger out of the view of the defendant, requires a specific determination "that there is a substantial likelihood that the witness would suffer severe emotional or mental distress if required to testify in open court." It further requires that "[t]he order shall be specific as to whether the witness will testify outside of the presence of spectators, the defendant, the jury, or all of them and shall be based on specific findings relating to the impact of the presence of each."
While we do not at this time know if the United States Supreme Court will carve out any exceptions to the Confrontation Clause, we cannot say that the New Jersey statute requiring particularized findings falls within the absolute strictures of Coy v. Iowa. Unless and until either the United States or the New Jersey Supreme Court determines that Justice O'Connor was incorrect in assuming that our statute meets the minimum required constitutional protection, we determine that the procedures established by N.J.S.A. 2A:84A-32.4(b) are valid. [229 N.J. Super. at 75].
The Iowa statute called into question in Coy v. Iowa created a legislatively imposed presumption of ...