On certification to the Superior Court, Appellate Division.
(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).
This appeal presents the question of what is required in order to declare a child sexual abuse victim competent to testify. In order to protect privacy concerns, defendant G. C. is referred to by his initials and all other members of G. C.'s family, including his daughter, are referred to by pseudonyms.
As of January 2002, when Doris, G. C.'s daughter, was approximately three years and five-months old, G. C. and his estranged wife Elizabeth agreed on a Sunday visitation schedule. After the fourth or fifth visitation, Doris awoke in the middle of the night, crying and saying "don't touch me, leave me alone." Elizabeth discussed the nocturnal episode with a visiting nurse who contacted the Division of Youth & Family Services (DYFS). Elizabeth also questioned Doris the next day. Doris stated that G. C. was touching her vagina, using a synonym for vagina that her mother had taught her. Elizabeth repeated Doris's account to her mother who met with Doris alone and asked her to describe what her father had done to her. After Doris did so, both Elizabeth and her mother met with Doris, gave her a doll and asked her to show where her father had touched her. Doris mimicked a rubbing motion over the doll's vaginal area. Peter Yzekwu, a DYFS caseworker, also met with Doris, who told him that G. C. was touching her vagina. An investigator from the County Prosecutor's Office, Lisa Collins, also met with Doris whose statements to her were consistent with what she had told her mother, grandmother and Yzekwu. G. C. was arrested and, later, indicted on charges of aggravated sexual assault, sexual assault, and endangering the welfare of a child.
The day before trial, the court heard the State's application to admit Doris's hearsay statements to Collins, Yzekwu, Elizabeth, and Elizabeth's mother and ruled that they were admissible under the "tender years" exception to the hearsay rule. At trial, Yzekwu, Collins and Elizabeth testified consistent with their prior statements. When Doris, who was then five-years old, was called to testify, defense counsel requested a determination that she was competent to do so. In response to the judge's questions, Doris answered it was not good to tell a lie, and that it was good to tell the truth. The judge inquired of counsel concerning Doris's ability to understand the consequences of telling a lie. Defense counsel responded, "We don't know whether she has any idea what consequences there are if a lie is told or whether she knows how important that is." Under further questioning, Doris said that she was not going to tell a lie and that she was going to tell the truth. The judge overruled defense counsel's objections to Doris's competence as a witness. Subsequently, in lieu of an oath, the judge asked Doris whether she was going to tell the truth, to which she responded "yes" and whether she was going to lie, to which she responded "no." The jury convicted G. C. of first-degree aggravated sexual assault, second-degree sexual assault, and second-degree endangering the welfare of a child. G. C. was sentenced to an aggregate term of ten years with eight and one-half years of parole ineligibility pursuant to the No Early Release Act.
The Appellate Division concluded that although Doris's hearsay statements were properly admitted into evidence, the judge's inquiry into Doris's understanding of her duty to tell the truth was insufficient and Doris's trial testimony created the need for further inquiry into the trustworthiness of her out-of-court statements. The panel reversed G. C.'s conviction.
This Court granted the State's petition for certification.
HELD: There was no abuse of discretion in the trial court's determination that the child witness here was competent. The presumption of our Evidence Rules is that every person is competent to testify unless, among other things, the proposed witness is incapable of understanding the duty to tell the truth. The provisions of N.J.R.E. 603 requiring an oath, affirmation or declaration to tell the truth under penalty of law are included within N.J.R.E. 601's requirement that a competent witness understand the duty to testify truthfully.
1. It is not necessary that an infant mouth the traditional litany nor comprehend its legal significance. We accept something different in the way of an oath from child victim witnesses for two reasons. First, any holding to the contrary would virtually preclude children from testifying against their assailants. Second, we are confident that allowing departures from the traditional oath will not result in convictions based on the word of infants incapable of understanding the difference between right and wrong. Infants must still satisfy the competency requirements of N.J.R.E. 601 in order to testify. (p. 17)
2. In re R.R., a 1979 New Jersey Supreme Court decision, stands for the proposition that disqualification of a witness is warranted only if the trial judge finds that the proposed witness is incapable of expressing himself or herself concerning the matter so as to be understood by the judge and jury or the proposed witness is incapable of understanding the duty of a witness to tell the truth. The colloquy between the trial court and Doris demonstrates that Doris was clearly capable of expressing herself in a manner that was understandable. Only one question remains: whether Doris was incapable of understanding the duty of a witness to tell the truth. (p. 18)
3. We reaffirm the competence requirements codified in N.J.R.E. 601. In that context, the clearly preferred procedure would have entailed the use of an oath or oath substitute that acknowledged both the obligation to testify truthfully and that the failure to do so could result in adverse consequences. (pp. 18-19)
4. Taken as a whole, the inquiry conducted by the trial court of a five-year old witness concerning events that transpired a year and a half earlier was sufficient to support the trial court's exercise of discretion in determining Doris' competence. The trial court tailored Doris competence voir dire to focus on whether Doris understood her duty to tell the truth . That duty necessarily implicates the consequences arising as a result of a failure to comply with that duty. The determination of whether a person is competent to be a witness lies within the sound discretion of the trial judge. We see no reason to disturb that exercise of discretion here. (p. 19)
5. We reject the implication that the requirements of an oath or affirmation described in N.J.R.E. 603 exist independently of the general rule of competence set forth in N.J.R.E. 601. Rule 603 describes some, but not all of the means in which a witness can satisfy the last element of witness competence: the requisite assurances that he will communicate his memory of the perception with fidelity. No particular form of oath, statement or litany is required. So long as the witness understands the duty to tell the truth, Rule 603's requirements are met. Rule 603 is not intended as a self-contained rule of competence, but instead as a non-exclusive list of how assurances can be had that the witness understands his duty to testify truthfully imposed under Rule 601(b). (pp. 20-21)
The judgment of the Appellate Division is REVERSED, defendant's convictions are REINSTATED, and the cause is REMANDED to the Appellate Division for consideration of defendant's remaining arguments.
JUSTICE WALLACE filed a separate, CONCURRING opinion, in which CHIEF JUSTICE PORITZ and JUSTICE LONG join, expressing the view that the oath requirement is a separate requirement, not an element of witness competence as expressed by the majority.
JUSTICES LaVECCHIA, ZAZZALI, and ALBIN join in JUSTICE RIVERA-SOTO's opinion. JUSTICE WALLACE filed a separate concurring opinion, in which CHIEF JUSTICE PORITZ and JUSTICE LONG join.
The opinion of the court was delivered by: Justice Rivera-soto
The competence of a witness to testify resides at the core of all contested judicial proceedings. In this appeal we must determine what is required in order to declare a child sexual abuse victim competent to testify.
We reaffirm our settled law, that the determination of a witness' competence to testify resides in the sound discretion of the trial court, and hold that there was no abuse of discretion in the trial court's determination that the child witness here was competent. We also reaffirm the provisions of our Evidence Rules that presume that every person is competent to testify unless, among other things, "the proposed witness is incapable of understanding the duty to tell the truth[.]" N.J.R.E. 601(b). We further hold that the provisions of N.J.R.E. 603 requiring an oath, affirmation or declaration to tell the truth under penalty of law are included within N.J.R.E. 601's requirement that a competent witness understand the duty to testify truthfully.
The relevant facts are straightforward. At the time of their separation in late 1999/early 2000, defendant G.C.*fn1 and his estranged wife Elizabeth were the parents of two young daughters, Doris (then age one year and five months) and her younger sister Kate (then an infant). When they separated, defendant returned to his father's home and Elizabeth and her two daughters returned to her mother's home, where Elizabeth's grandmother (the girls' great-grandmother) also lived. Elizabeth retained custody of the children. As of January 2002, when Doris was approximately three years and five months old, and Kate was approximately two years old, defendant and Elizabeth agreed that defendant could visit his daughters on Sundays, from 1:00 p.m. until 8:00 p.m. In practice, defendant would go to Elizabeth's family home, retrieve his daughters, and take them to his aunt's house for the day, where they would play with their cousins until it was time to return home.
After the Sunday visitations started, Elizabeth noticed a change in Doris. According to her mother, Doris's "attitude got stronger." After the fourth or fifth visitation on February 3, 2002, Doris awoke in the middle of the night, crying and saying "don't touch me, leave me alone." Elizabeth sought to comfort her daughter and, based on Doris's cries, asked if anyone was touching her. Doris did not respond, but immediately went back to sleep. Those events repeated themselves later that same night.
The next day Elizabeth discussed Doris's nocturnal outbursts with a visiting nurse. The nurse suggested that Elizabeth question Doris during the daytime and ask whether anyone was touching her. However, when Elizabeth broached the subject with Doris the following day, she appeared scared and would not answer.
Elizabeth persisted, reassuring Doris that she did not have to be scared. Doris then stated that defendant was touching her vagina; Doris did not use the word "vagina" but, instead, she used an ethnic slang term for "vagina" her mother had taught her. Elizabeth then repeated to her mother what Doris had just told her. Elizabeth's mother met with Doris alone and asked her to describe what her father had done to her. Once Doris did so, Elizabeth's mother asked Elizabeth to join them, but to bring a doll with her. Elizabeth and her mother gave the doll to Doris and asked her to show them where her father had touched her. In response, Doris mimicked a rubbing motion over the doll's vaginal area.
In the meanwhile, the visiting nurse contacted the Division of Youth & Family Services (DYFS) and notified DYFS of what Elizabeth had told her earlier that day. That same night, Peter Yzekwu,*fn2 a DYFS caseworker, telephoned Elizabeth and, two days later, on February 7, 2002, he went to Doris's home, where he spoke separately with Elizabeth, her mother, and Doris. Yzekwu specifically asked Doris why she was waking up in the middle of the night screaming, and Doris explained it was because defendant "was touching her private part[,]" again using the term her mother had taught her for her vagina. In his conversation with Doris, Yzekwu used a diagram of a female doll and, in order to focus Doris on the difference between appropriate and inappropriate touching, he asked her about "good touch" versus "bad touch" areas of the body. With those instructions, he asked Doris to identify different parts of the body. When Yzekwu pointed to the vaginal area on the diagram, Doris explained that it was a "bad touch" area and that it was there that her father had touched her. After that interview, Yzekwu transported Doris to the hospital for a physical examination and referred the matter to the County Prosecutor's Office. Doris's physical examination revealed nothing remarkable.
Investigator Lisa Collins was assigned to lead this investigation. On February 8, 2002, the day following Yzekwu's interview of Doris, Collins videotaped an interview with Doris. In respect of her descriptions of her father touching her vaginal area, Doris's statements in the videotaped interview were consistent with what she had told her mother, her grandmother, and Yzekwu. Doris also explained that her father had touched her with his genitalia, and that he had also touched her buttocks.
On February 20, 2002, Collins interviewed defendant. After defendant was advised of, acknowledged, and waived in writing his Miranda*fn3 rights, defendant denied that he had inappropriately touched his daughter. Collins's inquiries regarding that denial led to defendant's admission that he had rubbed Doris's vagina with his hand, but he claimed that it was in connection with wiping her clean after she had used the bathroom. Collins persisted and asked if defendant had inserted his finger into Doris's vagina. Defendant first admitted he had done so accidentally. After additional questioning by Collins, defendant later retracted that explanation, admitted that he had inserted his finger into Doris's vagina, that it was not the result of an accident, and that he knew what he was doing at the time. At Collins's request, defendant agreed to provide an audiotaped statement, where he admitted that he "wiped [Doris] with some toilet tissue and [his] finger went inside of her." Once the audiotaped interview was concluded, defendant was arrested.
The grand jury charged defendant with first-degree aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a, second-degree sexual assault, in violation of N.J.S.A. 2C:14-2b, and second-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4a.
On August 19, 2003, the day before defendant's trial started, the trial court heard several pre-trial applications, including the State's application, pursuant to the "tender years" exception to the hearsay rule, N.J.R.E. 803(c)(27), to admit Doris's hearsay statements about what defendant did to her. That led to the following colloquy between the trial court and defense counsel:
[DEFENSE COUNSEL]: I presume that at some point in time the Court is going to determine the ...