On appeal from Superior Court of New Jersey, Law Division, Burlington County.
Pressler, Baime and A.m. Stein. The opinion of the court was delivered by Baime, J.A.D.
This appeal and cross-appeal present novel questions concerning the prerequisites for admission of a hearsay statement made by an alleged child victim in a sexual assault prosecution. Evid.R. 63(33) permits introduction of a statement by a child under the age of 12 if, after a hearing, the court finds that the declaration is trustworthy and either the witness testifies or, if unavailable, there is independent evidence corroborating the act of sexual abuse. We hold that the rule's age requirement is satisfied by proof that the declarant was under 12 years old when the statement was made, regardless of her age at the time of the scheduled trial. We also conclude, however, that the Uniform Act to Secure the Attendance of Witnesses (N.J.S.A. 2A:81-18 to -23) is applicable to child witnesses and that the prosecutor, by not utilizing available statutory remedies, failed to exercise due diligence in attempting to obtain the presence of the declarant for trial.
In early spring of 1988, the Pemberton Township Police Department received information that defendant had sexually abused several children who resided in the apartment complex in which he lived. As part of the ensuing investigation, Detective Ralph Johnston took a statement from R.I., who was then ten years old, in which she reported that defendant had molested her on a number of occasions in his apartment. R.I. also recounted that she had observed defendant commit sexual acts upon other young children in his apartment. According to R.I., she had been threatened by defendant and thus had told no one of these incidents. A formal statement was taken from R.I. on May 31, 1988.
In July of 1988, the Burlington County Prosecutor's Office received reports from the parents of several children, including R.I.'s mother, claiming that they had been threatened by members of defendant's family. On July 28, 1988, a multi-count
indictment was returned charging defendant with sexual assault (N.J.S.A. 2C:14-2), terroristic threats (N.J.S.A. 2C:12-3a), hindering apprehension (N.J.S.A. 2C:29-3b(2)), and endangering the welfare of a child (N.J.S.A. 2C:24-4a). We need not describe the indictment in detail. Suffice it to say, it alleged that defendant had sexually abused and threatened R.I. and three other children.
Trial was originally scheduled for September 10, 1990. However, the prosecutor's office learned that R.I. and her mother had moved to Florida, in part because of defendant's threats. The prosecutor located the family in August of 1990 and issued a subpoena, but R.I.'s mother refused to permit the child to return to New Jersey. The prosecutor did not pursue the matter.
Instead, he filed a pretrial motion for the admission of R.I.'s hearsay statement, claiming that the declarant was unavailable. At the hearing, the prosecutor asserted that the statement was trustworthy and that there was independent admissible evidence corroborating R.I.'s account of defendant's criminal conduct. The Law Division agreed that R.I. was not available and that resort to the Uniform Act to secure her attendance would likely be futile in light of her mother's prior defiance of the subpoena. The judge nevertheless denied the State's motion on the basis that, although R.I. was ten years old when the statement was made, she had reached the age of 13 by the scheduled trial date. The judge construed Evid.R. 63(33) as requiring that the child victim be under 12 years of age at the time of the trial. An order embodying the court's decision was entered and this appeal and cross-appeal followed.
We first address the question of whether R.I. was "unavailable as a witness." This phrase is defined in Evid.R. 62. The only definitions germane to the present inquiry are those contained in ...