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A.B. v. Y.Z.

August 9, 2005

A.B., INDIVIDUALLY AND AS GUARDIANS AD LITEM FOR THE MINOR, H.T., PLAINTIFFS-RESPONDENTS,
v.
Y.Z., AN INDIVIDUAL, DEFENDANT-APPELLANT, AND X.Y.Z. SCHOOL, A.R.C. AND/OR JOHN DOE 1-100 INDIVIDUALLY, JOINTLY AND SEVERALLY, DEFENDANTS.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The issue in this matter is whether the trial judge's decision to permit the twenty-one-year-old sexual abuse victim, H.T., to testify by closed circuit television outside of the presence of the perpetrator in a civil proof hearing was erroneous and, if so, whether the error was harmless.

H.T. was abused by Y.Z., a teacher, four or five times a week, over the course of two years, from 1993 to 1995. Y.Z. was convicted on federal and state charges and spent almost five years in prison. In May 1997, A.B. (both of the parents of H.T.) filed a civil action for damages on behalf of H.T. against Y.Z., the X.Y.Z. school, and its headmaster, for the continual sexual abuse of their son while Y.Z. was a teacher and H.T. was a student at the X.Y.Z. school. The complaint also alleged assault and battery and intentional infliction of emotional distress. The school and its headmaster later settled the action against them.

Y.Z. failed to file or serve an answer or any other pleadings. An order of default was entered against Y.Z. A proof hearing was scheduled, without a jury, to determine the quantum of damages. Prior to the proof hearing, A.B.s' attorney requested that H.T. testify outside the presence of Y.Z. Because H.T. was twenty-one years of age at the time, Y.Z. objected. The trial judge agreed to the request.

During his testimony, H.T. sat in one room, while the judge, Y.Z., and defense counsel stayed in the courtroom. Although the judge permitted Y.Z.'s attorney to be in the same room as H.T. and to leave the room to ask Y.Z. for additional questions, if any, the attorney elected to remain in the courtroom with Y.Z. during H.T.'s testimony. During the testimony, Y.Z. could see and hear H.T. on the video, and H.T. could hear defense counsel. H.T. was the only witness called at the hearing to testify on the issue of compensatory damages. At the close of the hearing, the trial judge awarded $500,000 in compensatory and $150,000 in punitive damages.

Y.Z. appealed. The Appellate Division found that the trial judge incorrectly permitted H.T. to testify via closed circuit television but concluded that the use of closed circuit television was harmless.

This Court granted Y.Z.'s petition for certification.

HELD: The trial judge's decision to permit the twenty-one-year-old sexual abuse victim to testify by closed circuit television outside of the presence of the perpetrator in a civil proof hearing was erroneous but the error was harmless.

1. The Child Sexual Abuse Act attempts to accommodate a child-victim by permitting his or her testimony to be conducted via closed circuit television; however, specific findings must be made. Here, the victim was over the maximum age of sixteen; thus, the provisions of the statute were not available to him. No alternative legal basis was advanced as a source of the judge's power to authorize closed circuit testimony. Permitting H.T. to testify via closed circuit television was therefore erroneous. The question presented is whether that error warrants reversal. (pp. 6-7)

2. Although the Sixth Amendment right to confrontation is not applicable in civil proceedings, due process guarantees civil litigants a measure of confrontation. At issue here is whether Y.Z. was given sufficient opportunity to confront his accuser within the civil setting. Because due process guarantees civil litigants a measure of confrontation, the burden to prove the denial of such confrontation harmless beyond a reasonable doubt rests with plaintiffs who benefited from the circumscription of defendant's right to face his accuser. Thus, to the extent that the appellate panel cast that obligation on Y.Z, it was in error. (pp. 7-10)

3. We subcribe to the remainder of the Appellate Division's conclusions regarding harmlessness. First Y.Z. could not enlighten the court regarding the emotional effects of the sexual abuse on H.T. Second, his lawyer engaged in a very complete cross-examination of H.T. Third, H.T. was aware that Y.Z. was observing him and listening to every word of his testimony. Fourth, and most importantly, this was a proof hearing, in which a defendant's participation may be subject to circumscription depending on the facts. Given the unique nature of a proof hearing and the full cross-examination by defense counsel, plaintiffs satisfied their burden of proving that the procedure adopted by the judge was harmless beyond a reasonable doubt. (p. 10)

The judgment of the Appellate Division is AFFIRMED. The matter is REMANDED to the trial judge for reconsideration of the issue of punitive damages.

JUSTICE RIVERA-SOTO, CONCURRING in the result, is of the view that the procedure employed was well within the trial court's discretion.

JUSTICE LONG, joined by JUSTICES LaVECCHIA and ALBIN, CONCURRING in part and DISSENTING in part, concurs with the majority's conclusion that what occurred in this case was error and dissents from its concomitant determination that the error was harmless beyond a reasonable doubt.

CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN and WALLACE join in Parts I and II of the Court's opinion. CHIEF JUSTICE PORITZ and JUSTICES ZAZZALI and WALLACE join in Part III of the Court's opinion. JUSTICE RIVERA-SOTO has filed a separate opinion concurring in the result. JUSTICE LONG has filed a separate opinion concurring in part and dissenting in part. JUSTICE LaVECCHIA and ALBIN join in JUSTICE LONG's opinion.

Per curiam.

Argued May 3, 2005

In 1997, plaintiffs, A.B.*fn1, individually and as guardians ad litem for their son, H.T., brought a civil action against defendant, Y.Z., for sexual abuse, assault and battery, and intentional infliction of emotional distress. Defendant failed to file or serve an answer or any other pleading. A default was entered against him, and the matter proceeded directly to a proof hearing to determine damages. Prior to the proof hearing, plaintiffs requested that the testimony of their son, who was by then twenty-one years old, be conducted on closed circuit television because confronting defendant face-to-face would "freak [him] out." Defendant objected on the grounds that N.J.S.A. 2A:61B-1(e)(2), the Child Sexual Abuse Act, specifically permits closed circuit testimony only when the victim is sixteen years of age or younger and testifying in open court would result in a substantial likelihood of severe emotional or mental distress. The trial judge granted plaintiffs' request.

The issue before us is whether the trial judge's decision to permit the twenty-one-year-old victim to testify by closed circuit television outside of the presence of defendant in a civil proof hearing was erroneous. The Appellate Division held that it was but that the error was harmless. We now affirm.

I.

The details of the victim's sexual abuse need not be recounted here insofar as an entirely procedural issue is before us. In brief, he was abused by defendant, a teacher, four or five times a week, over the course of two years, from 1993 to 1995. Defendant was arrested and ...


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