The opinion of the court was delivered by: Garibaldi, J.
Argued September 28, 1998
On certification to the Superior Court, Appellate Division.
In this appeal we again confront the critical and continually recurring problem of the admissibility of a child's extra-judicial statements regarding allegations of sexual abuse. Specifically, we must determine whether under the tender years exception to the hearsay rule, N.J.R.E. 803(c)(27), the testimony of a relative regarding the child's extra-judicial statements about the sexual assault and a videotaped police interview of the child that contained a seven minute gap in the taping are admissible. *fn1
Defendant's alleged victim was Michelle, *fn2 his eight year old step-daughter. Michelle's mother married defendant in 1989, when Michelle was four and a half years old. Together, her mother and defendant had two more children. In January 1993, Michelle, her mother and her siblings moved from Virginia to New Jersey. They stayed with Michelle's great-grandmother until their new home in Lower Township, New Jersey was ready. On Martin Luther King weekend, defendant, an enlisted man in the Navy stationed in Virginia, obtained a weekend pass and came to New Jersey to visit his family. During his visit, he asked Michelle to pick up pizzas for dinner with him. On the way to get the pizza, they stopped at the family's new home so defendant could search among some boxes. Michelle played with some Matchbox cars in the living room while defendant looked through the boxes. Michelle stated that defendant called her into the master bedroom and told her to lie down on a mattress. He laid down next to her and proceeded to place his hands under her shirt. Defendant touched and squeezed her breasts, fondled her vagina, and kissed her on the mouth. He then pulled off her shirt and pants, removed his own pants and climbed on top of her. Michelle testified that defendant put his "dinky" into her and then that he cleaned up the "wet stuff" on the bed with a towel. He then told her to clean herself up and get dressed. The pair proceeded to the pizza place and then returned to the great-grandmother's house.
Approximately three weeks later, on February 6, 1993, Michelle was playing in a bedroom with the younger daughters of her mother's cousin, Sandra Jones. *fn3 Michelle refers to Sandra Jones as Aunt Sandy. Aunt Sandy entered the room and found Michelle lying on the bed between her two younger daughters, ages five and three. The two young girls had their pants down to their knees and one of them had her hand down Michelle's pants. Aunt Sandy testified that she "freaked out" when she saw the girls and called them "names." She ordered Michelle to sit in the living room and told her that she was very upset with her. Michelle testified that she "got in trouble" after her aunt came into the room. Aunt Sandy testified that Michelle did not cry but seemed scared. Aunt Sandy took her daughters to the bathroom, washed them and attempted to "deprogram" them. The older girl told her mother that Michelle wanted her to "lick her pee pee."
Forty-five minutes later, Aunt Sandy returned to the living room and questioned Michelle about the incident. Aunt Sandy testified that she had calmed down by then, but Michelle seemed nervous. Aunt Sandy asked Michelle what had made her act that way and where she had learned it. At first, Michelle blamed the behavior on Aunt Sandy's daughters. However, after more questioning, she revealed that "Daddy David" did those things to her. Michelle testified on direct examination that Aunt Sandy asked her, "What made you do this? Did anybody ever do anything like this to you to make you do this?" She then told Aunt Sandy about the events that occurred in January at her family's new home. She told her Aunt that "Daddy David" stuck his "thing" in her and then "peed" on the bed, wiping it up with a towel. Michelle begged her Aunt not to tell her mother.
Aunt Sandy immediately called one of Michelle's aunts and Michelle repeated the allegation to her. Michelle's mother was called and Aunt Sandy told her what Michelle had said. They called the police and defendant was charged with committing an act of sexual penetration on a child under the age of thirteen and with debauching the morals of a child for whom he had a legal duty of care.
On February 10, 1993, Detective Marie Hayes, a female detective from the Child Abuse Unit of the Cape May County Prosecutor's office conducted a videotaped interview of Michelle. Aunt Sandy accompanied Michelle to the interview and waited in the hall while Michelle and Hayes spoke. Michelle mentioned to Hayes that Aunt Sandy promised her a surprise if she told the truth. Initially, however, Michelle said very little. She said only that defendant had touched her "boobies." The detective persistently tried to get Michelle to say more; Michelle would not. The detective sensed that Michelle was scared and was holding back. She stopped the interview when Michelle's nose began to bleed and Hayes brought Michelle to the bathroom. The detective then spoke separately with Aunt Sandy and asked her to reassure Michelle about talking to her. Aunt Sandy then placed Michelle on her lap and reassured her that she should tell the detective the truth. Hayes testified that she was present during the entire exchange. After seven minutes, Michelle and Hayes returned to the interview room and resumed taping the interview. Michelle proceeded to allege that defendant had put his "penis" into her "vagina."
Six days later, Michelle was examined by Dr. Finkel, a pediatrician specializing in cases of sexual abuse, to determine if there were any physical and/or psychological "residual effects" of the alleged sexual attack. After receiving a medical history from Michelle's mother and background information from a caseworker, Dr. Finkel interviewed Michelle alone. Under questioning about whether defendant had touched her, Michelle said that defendant rubbed his penis on her "private." Using an anatomical model with genitalia, Michelle demonstrated what Dr. Finkel interpreted as vulvar coitus. The physical examination disclosed no injury or "residual effect" to the genitalia. According to Dr. Finkel, however, that result is not unusual because even in rape cases where extreme force is used, resultant injuries can be undetectable a week later. Based on Michelle's oral description of the events and her behavior with anatomically correct dolls, Dr. Finkel found that there was a high likelihood that sexual abuse had occurred.
Prior to the trial, Michelle's mother beat her in an attempt to get her to recant her allegations. Michelle was sent to live briefly with her grandfather and then with another aunt. Eventually, she was sent to live out-of-state with her biological father. When she returned to New Jersey, she accused him of sexual assault as well. That account was so similar to the charge against defendant that they both included the detail of the perpetrator using a towel to wipe himself and the bed after ejaculation. Charges were never pressed against Michelle's biological father. At the time of defendant's trial, Michelle was living in a foster home.
On September 16, 1994, Dr. Finkel examined Michelle again, this time with regard to her claims against her biological father. Michelle alleged three separate incidents involving her biological father and recanted her original allegations concerning defendant. Over the course of the next six months, Michelle also told Aunt Sandy, a worker at the Division of Youth and Family Services, an investigator from the Public Defender's office, the prosecutor, and Detective Hayes that she had been lying when she said that defendant had sexually abused her. Michelle, at various times during this period, also recanted her recantation. She claimed that when she denied that defendant sexually abused her she was only trying to make her mother happy.
On December 6, 1993, at his attorney's urging, defendant entered a plea of guilty to aggravated sexual contact, in exchange for the prosecutor's recommendation of a sentence of 364 days in county jail. However, at defendant's sentencing, he so persistently maintained his innocence that the trial court refused to accept the plea agreement. The case was set for trial. On April 20, 1995, Michelle met with the prosecutor and Detective Hayes. She initially told them that defendant did not abuse her and then, upon further questioning, told them that her mother had told her to lie and deny the abuse. Michelle's mother was charged with hindering the prosecution and witness tampering. A pre-trial hearing was held pursuant to N.J.R.E. 104(a). Relying on N.J.R.E. 803(c)(27), the tender years exception, the prosecution sought the admission of Hayes' videotaped interview of Michelle. Defendant argued that the videotape was untrustworthy because of the seven minute gap and Aunt Sandy's intervention. After viewing the videotape and listening to Detective Hayes explain the circumstances surrounding the creation of the video, the trial court deemed Michelle's statements on the tape to be sufficiently trustworthy to warrant admission of the videotape.
The trial began on May 1, 1995. On May 3, 1995, Michelle's mother served defendant with divorce papers. Also on that date the prosecutor dismissed with prejudice the charges against Michelle's mother.
Michelle was the first witness at trial. Her testimony, according to the trial court, was "painful to watch." She had "a lot of trouble focusing on questions" and there were one to two minute pauses between answers. She seemed to be under such a "tremendous amount of stress" and to be so "disoriented," that the trial court inquired if there were anyone "attending to her emotional state."
Her trial testimony also differed in detail from her prior statements to the police and social service personnel. Thus, for example, while she initially told authorities that defendant threw her on the bed and merely unzipped his pants, she testified that he asked her to lie down on the bed and took his pants off. Similarly, she initially said she touched his penis, but then denied this at trial. She vacillated so many times at trial that the prosecutor was impelled to impeach her. For example, when Michelle repeatedly stated at trial that she had not heard defendant's voice on a speaker phone trying to persuade her mother that he was innocent, the prosecution played ...