Garibaldi, Handler, Pollock, O'hern, Stein, Clifford, Wilentz
The opinion of the court was delivered by
At issue in this sexual-assault case is whether the out-of-court statements of an alleged child victim who did not testify at trial were properly admitted under Evidence Rule 63(33). Central to that inquiry is whether pursuant to Evidence Rule 62(6) the State has demonstrated that it has been "unable, despite due diligence, to procure the attendance of the witness."
The trial court, holding that the State had established the child witness's unavailability, allowed the hearsay testimony. A jury convicted defendant. The Appellate Division reversed, finding that the State had failed to make a good-faith effort to obtain the child's presence at trial. 259 N.J. Super. 93, 611 A.2d 659 (1992). We granted the State's petition for certification, N.J., A.2d(1992), addressed solely to the issue of unavailability.
Defendant was convicted of sexually abusing J.G., a six-year old. The State did not call J.G. as a witness at the trial because her mother had taken her out of the state. Instead, the State introduced her statements into evidence through the hearsay testimony of G.H., her eleven-year-old neighbor, and Ms. Rudd, a social worker. A state trooper also testified at the trial.
G.H., age thirteen at the time of the trial, testified that approximately two years before her court appearance, J.G. had told her that Kenny, her babysitter, had forced her to "suck his private and play with it" while they were in the family trailer. G.H. asked J.G. where her mother was at the time and "did she [J.G.] want to or did he make her?" J.G. responded that her mother was not home and that she "didn't want to." That same day, G.H. told her father, who immediately called the state police. State Trooper Maruca spoke to G.H.'s father and then went to J.G.'s home and spoke with J.G. and her mother. J.G. appeared shy and quiet at first. Trooper Maruca asked J.G. whether defendant had "put his private parts in her mouth." J.G. did not answer orally, but shook her head up and down twice, indicating "yes." The trooper then asked her how many times this had occurred, and she held up two fingers.
The next day, January 5, 1988, J.G.'s mother called Ms. Rudd, a social worker with the Division of Youth and Family Services (DYFS), who had worked with the family for over a year. Ms. Rudd testified that she had gone to the house that same day and had questioned J.G. while they were alone in the bedroom. J.G. identified "Kenny" as the babysitter. When Ms. Rudd asked J.G. if she had anything to tell her about Kenny, the child would not talk. Eventually, the child indicated the male sex organ and related that Kenny had made her perform fellatio two times. She then motioned to her vagina and said that he touched her there twice, and that he had twice tried to put his penis into her vagina but "it would not fit"
After speaking with Ms. Rudd and conducting his own investigation, Trooper Maruca learned defendant's full name and address, and instructed defendant to communicate him. On January 11, 1988, defendant called Trooper Maruca, who, together with Trooper Ciacco, interviewed him regarding J.G.'s charges. Defendant waived his Miranda rights and confessed to the incident that had occurred sometime in October. He stated that he had drunk two bottles of alcohol after work, and that J.G., at his request, performed two acts of fellatio on him while he babysat her. He also stated that he put his hands into her pants and on her vagina. Because defendant could not read, Trooper Maruca reviewed the typed statement with him before defendant signed it Trooper Maruca read defendant's signed confession to the jury. The validity of the confession is not at issue.
 Defendant's confession standing alone cannot support his conviction. As the Appellate Division so aptly stated, "Without the hearsay statements of the trial, the proofs could not withstand a verdict of judgment of acquittal under R. 3:18-1." 259 N.J. Super. at 95, 611 A.2d 659.
The trial court found that the State had made adequate efforts to locate J.G. and that therefore she was "unavailable" under Evidence Rule 63(33). The trial court then admitted into evidence J.G.'s out-of-court statements made to G.H. and Ms. Rudd.
Defendant did not testify or call any witnesses. The jury convicted defendant of first-degree aggravated sexual assault in violation of N.J.S.A. 2C:14-2a(1); second-degree sexual assault in violation of N.J.S.A. 2C:14-2b; and third-degree endangering the welfare of a child in violation of N.J.S.A. 2C:24-4a. The court denied defendant's motion for a new trial and sentenced defendant to a twelve-year custodial term on the first count, and concurrent six- and four-year terms on the other two counts. Defendant was released on parole in January 1993.
The Appellate Division reversed defendant's convictions and remanded the matter for a new trial. The panel called the proof of due diligence in this case "woefully deficient," and cautioned:
If our courts allow the skimpy proofs in this case to pass muster as a diligent search for a missing witness, we see no reason why any prosecutor would venture beyond the boundaries of this limited inquiry. It is obviously advantageous to have the "unavailable" child's declarations provided unvarnished to a jury, free of the potential perils of cross-examination.
We agree that the State failed to prove that it had exercised due diligence in its attempt to locate J.G., and therefore affirm.
In pre-trial motions defendant challenged the admissibility of J.G.'s statements to G.H. and Ms. Rudd on various grounds. The only issue before us, however, is J.G.'s unavailability.
At the Evidence Rule 8 hearing held in February 1990, the prosecutor described the State's attempts to locate J.G. Those efforts commenced after a trial call date of January 20, 1990, two years after defendant's arrest, and approximately three weeks before the Rule 8 hearing. The assistant prosecutor explained:
Judge, what we did in this case is we had the original address of the victim which is in Cookstown or Wrightstown. I think it's some Mary Street--some number on Mary Street. What we did is we sent a letter to that last address that we had. Okay. However, that--she no longer lived there. Then we got some indication that she may live at [a trailer park in] Wrightstown. We sent a letter to that address, and it was checked off "Attempted--Not known." Okay. And that the person was not there.
Then my investigator contacted the Welfare Board as we had some indication that the victim's mother was receiving assistance. Our sources at the Welfare Board gave an address in Houston. This was not an address that was provided to us from the victim as a forwarding address. This is what we found out through our investigation, Judge. And this was an address of 1520 Silver Street from Houston, Texas.
We sent a teletype to that--to the Houston Police Department asking them to attempt to locate--and it says, "Police attempts to locate [S.G.] at 1520 Silver Street, Houston. Texas, and request her to call Investigator Bell with reference to her testifying at trial. Thank you in advance for your assistance in this matter."
We then receive a teletype back from the Houston Police Department to our Prosecutor's Office in reference to locating missing witness [S.G.] at 1520 Silver Street and their reply was, "Please be advised that we have a street name Silber, S-i-l-b-e-r, and both street addresses were checked--that being Silver, S-i-l-v-e-r, and Silber, S-i-l-b-e-r, Street 1520 with no luck. Both locations were business/warehouses and not residences." That's the indication that we had, Judge.
Being that we had no other way to--I mean, right there the trail ended. Once there was no--the address that the victim's mother had given the Welfare Board as a forwarding address was not a good address. We did not know how else to proceed in this matter. In other words, the trail just ended there, Judge.
After defense counsel argued that the State should have pursued further investigative leads, such as a forwarding address from the post office, J.G.'s New Jersey school records, or should have contacted the welfare department in Houston, Texas, the State responded:
[Defense counsel] is saying should, should, should. If they had, if they had, if they had, State didn't just do one thing in this matter, Your Honor, we went notices to two addresses in New Jersey. Both of those did not turn up anything.
We then went and contacted the Welfare Board. That's now our third step in that we got an address in Texas, which leads us to our fourth step which is contacting the Houston Police Department.
The trial court found the case "close," stating:
So we have no evidence that the mother and the child ever got to Texas. We have no evidence that the mother and daughter ever applied for welfare in Texas. We have no indication that the child was ever in school in Texas. The information could be that--the information given by the Burlington County Welfare Department as this being a residence in Texas, this address, was just totally inaccurate.
Now, I think in the future maybe as Prosecutors get--become aware that, hey, if you're going to start relying on this role, you better make sure that you've done everything possible in trying to run down the victim in Texas or Wisconsin or wherever it is, but I think maybe the Prosecutor--I think I'm persuaded the Prosecutor squeaked by by having the Texas police authorities go out and try to find such an address, but they were unable to: and so, I'm going to find that the witness was unavailable, . . . (emphasis added).
Two days later, the defense renewed its motion to exclude J.G.'s statements, arguing that the State had known that J.G. and her mother would be leaving New Jersey in early March 1988, and had mentioned going to Florida, where they had previously lived. Even though DYFS became aware of the family's departure and notified the Prosecutor's Office before the matter had even been presented to the grand jury, the State made no effort to locate the family until January 1990, after the trial date had been scheduled. On that basis, defense counsel urged "that the State can't show unavailability because you can't wait two years after the trail gets cold, so to speak perhaps, and then say, we can't find her." Further, as the defense pointed out, DYFS records suggested that J.G.'s mother had been in Florida at a specified address and had considered moving there. The State, however, never checked potential addresses in Florida. The State maintained that it had no obligation to check all fifty states to locate a witness.
Moreover, even though the trial did not commence until one month after the pre-trial hearing, there was no evidence that the State had resumed searching for J.G. Unpersuaded by defendant's arguments, the trial court reaffirmed its earlier ruling, noting that
the Prosecutor did what any Prosecutor [sic] had done. They carry the file through the stages--the ordinary stages of the plea, the pretrial conference and it's not really until shortly before trial or when trial is scheduled that the Prosecutor makes a serious effort to contact witnesses.
The Legislature adopted Evidence Rule 63(33)'s "tender years" exception to the hearsay rule after our decision in State v. D.R., 109N.J. 348, 537 A.2d 667 (1988), in which we proposed a more liberal rule of admissibility for statements made by young sex-abuse victims. Evidence Rule 63(33) (statements by a child relating to a sexual offense) provides:
A statement by a child under the age of 12 relating to a sexual offense under the Code of Criminal Justice committed on, with, or against that child is admissible in a criminal proceeding brought against a defendant for the commission of such offense if (a) the proponent of the statement makes known to the adverse party his intention to offer the statement and the particulars of the statement at such time as to provide him with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to Rule 8(1), that on the basis of the time, content, and circumstances of the statement there is a probability that the statement is trustworthy; and (c) either (i) the child testifies at the proceeding, or (ii) the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse; provided that no child whose statement is to be offered in evidence pursuant to this rule shall be disqualified to be a witness in such proceeding by virtue of the requirements of paragraph (b) of Rule 17. (emphasis added).
We proposed the "tender years" exception because we recognized that a child victim's account in sexual-abuse cases "may be the best and sometimes the only evidence that a sexual assault has taken place." 109 N.J. at 359, 537 A.2d 667. The "tender years" exception therefore "enables the judicial system to deal more sensibly and effectively with the difficult problems of proof inherent in child sex abuse prosecutions." Ibid. (footnote omitted). Nonetheless, the Court recognized that "any such modification of the hearsay rule must adequately recognize and protect the substantial constitutional interests of defendants in such proceedings." Id. at 363, 537 A.2d 667 (footnote omitted).
In addressing the standards for admissibility of such statements, we emphasized "the constitutional concerns" of the defendant:
The admission into evidence of reliable out-of-court statements by a child victim in a sexual abuse prosecution obviously serves legitimate and important law enforcement interests. However, such a role threatens the equally significant interests of the defendant, who seeks to exercise the basic rights of confrontation and ...