January 24, 2019
appeal from Superior Court of New Jersey, Law Division,
Morris County, Indictment No. 11-02-0138, Bergen County,
Indictment No. 07-11-1924, Gloucester County, Indictment No.
13-08-0761, and Camden County, Indictment No. 15-09-2680.
Lawrence S. Lustberg argued the cause for appellant in
A-2065-15 (Gibbons PC, attorneys; Lawrence S. Lustberg and
Amanda B. Protess, on the briefs).
E. Krakora, Public Defender, attorney for appellant in
A-0556-16 (Jay L. Wilensky, Assistant Deputy Public Defender,
of counsel and on the briefs). Kelly Anderson Smith argued
the cause for appellant in A-1455-16.
Van Jura, Deputy Public Defender, argued the cause for
appellant in A-3280-16 (Joseph E. Krakora, Public Defender,
attorney; Stefan Van Jura, of counsel and on the briefs).
K. McNamara, Jr., Chief Assistant Prosecutor, argued the
cause for respondent in A-2065-15 (Fredric M. Knapp, Morris
County Prosecutor, attorney; Erin Smith Wisloff, Supervising
Assistant Prosecutor, on the briefs).
Calo, Acting Bergen County Prosecutor, attorney for
respondent in A-0556-16 (William P. Miller, Special Deputy
Attorney General/Acting Assistant Prosecutor, of counsel and
on the brief; Catherine A. Foddai, Legal Assistant, on the
B. Leonard, Deputy Attorney General, argued the cause for
respondents in A-1455-16 and A-3280-16 (Gurbir S. Grewal,
Attorney General, attorney; Sarah E. Elsasser, Deputy
Attorney General, of counsel and on the brief in A-1455-16;
Lila B. Leonard, of counsel and on the briefs in A-3280-16).
Judges Koblitz, Ostrer and Mayer.
consolidate these four appeals for the purpose of writing a
single opinion because they present the issue of whether
State v. J.L.G., 234 N.J. 265, 272 (2018), should be
applied retroactively to reverse defendants' convictions
of child sexual assault where an expert in "Child Sexual
Assault Accommodation Syndrome" (CSAAS) was permitted to
testify. We accord J.L.G. pipeline retroactivity and
reverse because the admission of CSAAS expert testimony in
these four cases calls into question the validity of each
first discuss the legal issues and then apply those concepts
to each case individually. CSAAS is a theory developed
thirty-five years ago by clinical psychiatrist Dr. Ronald
Summit, and identifies five categories of behavior commonly
demonstrated by child sex abuse victims: "secrecy;
helplessness; entrapment and accommodation; delayed,
conflicted, unconvincing disclosure; and retraction."
Id. at 271. In 1993, our Supreme Court found CSAAS
expert testimony was sufficiently reliable to be admitted
into evidence. State v. J.Q., 130 N.J. 554, 556
(1993). Expert testimony concerning CSAAS has been used in
sex abuse trials throughout the country. J.L.G., 234
N.J. at 271.
J.L.G., our Supreme Court ruled that expert
testimony about CSAAS was not reliable except as to delayed
disclosure. The Court stated:
Based on what is known today, it is no longer possible to
conclude that CSAAS has a sufficiently reliable basis in
science to be the subject of expert testimony. We find
continued scientific support for only one aspect of the
theory -- delayed disclosure -- because scientists generally
accept that a significant percentage of children delay
reporting sexual abuse.
We therefore hold that expert testimony about CSAAS in
general, and its component behaviors other than delayed
disclosure, may no longer be admitted at criminal trials.
Evidence about delayed disclosure can be presented if it
satisfies all parts of the applicable evidence rule.
See N.J.R.E. 702. In particular, the State must show
that the evidence is beyond the understanding of the average
[Id. at 272.]
Court noted that admissibility of CSAAS expert testimony
"will turn on the facts of each case," especially
the victim's explanation for delayed disclosure.
Ibid. Where a victim gives "straightforward
reasons about why she delayed reporting abuse, the jury
[does] not need help from an expert to evaluate her
explanation. However, if a child cannot offer a rational
explanation, expert testimony may help the jury understand
the witness's behavior." Ibid.
cases were pending on appeal at the time J.L.G. was
decided. Our retroactivity analysis begins with the threshold
question: "whether a new rule of law has been
announced." State v. Feal, 194 N.J. 293, 307
(2008); see also State v. Burstein, 85 N.J.
394, 403 (1981) ("As the very term implies,
retroactivity can arise only where there has been a departure
from existing law.").
A case announces a new rule of law for retroactivity purposes
if there is a "'sudden and generally unanticipated
repudiation of a long-standing practice.'" State
v. Purnell, 161 N.J. 44, 53 (1999) (quoting State v.
Afanador, 151 N.J. 41, 58 (1997)). A new rule exists if
"'it breaks new ground or imposes a new obligation
on the States or the Federal Government . . . [or] if the
result was not dictated by precedent existing at the
time the defendant's conviction became final.'"
State v. Lark, 117 N.J. 331, 339 (1989) (quoting
Teague v. Lane, 489 U.S. 288, 301 (1989)).
[Feal, 194 N.J. at 308 (alteration in original).]
Where a new rule of law is introduced, the court has four
(1) make the new rule of law purely prospective, applying it
only to cases whose operative facts arise after the new rule
is announced; (2) apply the new rule to future cases and to
the parties in the case announcing the new rule, while
applying the old rule to all other pending and past
litigation; (3) grant the new rule [pipeline] retroactivity,
applying it to cases in (1) and (2)as well as to pending
cases where the parties have not yet exhausted all avenues of
direct review; and, finally, (4) give the new rule complete
retroactive effect . . . .
[Burstein, 85 N.J. at 402-03.]
factors are considered in determining which retroactive
application is appropriate: "(1) the purpose of the rule
and whether it would be furthered by a retroactive
application, (2) the degree of reliance placed on the old
rule by those who administered it, and (3) the effect a
retroactive application would have on the administration of
justice." Feal, 194 N.J. at 308 (quoting
State v. Knight, 145 N.J. 233, 251 (1996)); see
also State v. Henderson, 208 N.J. 208, 300-01 (2011).
first factor is often considered the most pivotal.
Knight, 145 N.J. at 251; see also
Henderson, 208 N.J. at 301 (noting that these three
"factors are not of equal weight"). Retroactive
application is appropriate where "the purpose of the new
rule 'is to overcome an aspect of the criminal trial that
substantially impairs its truth-finding
function' and raises 'serious question[s] about the
accuracy of guilty verdicts in past trials . . . .'"
Feal, 194 N.J. at 308-09 (quoting Burstein,
85 N.J. at 406-07); see also State v. Cassidy, 235
N.J. 482, 498, 501-02 (2018) (reversing over 20, 000 drunk
driving convictions based on improperly calibrated
retroactivity has been afforded in situations that strike
"at the heart of the truth-seeking function," such
the requirement that the State may not escape its burden of
proof beyond a reasonable doubt by using presumptions to
shift burdens of proof to the defense, Hankerson v. North
Carolina, 432 U.S. 233 (1977); the requirement that, in
juvenile proceedings, the State prove beyond a reasonable
doubt all elements of an offense that would constitute a
crime if committed by an adult, Ivan V. v. City of New
York, 407 U.S. 203 (1972); the right to counsel at
preliminary hearings in which a defendant must assert certain
defenses or lose them, Arsenault v. Massachusetts,
393 U.S. 5, 89 (1968); the rule barring the admission of
[one] co-defendant's extrajudicial confession implicating
another defendant, Roberts v. Russell, 392 U.S. 293
(1968); the right to counsel at trial, Pickelsimer v.
Wainwright, 375 U.S. 2 (1963); and the requirement that
a confession made some time ago meet current standards of
voluntariness, Reck v. Pate, 367 U.S. 433 (1961).
[Feal, 194 N.J. at 309 (quoting Burstein,
85 N.J. at 407).]
However, "where the new rule is designed to enhance the
reliability of the fact-finding process, but the old rule did
not 'substantially impair' the accuracy of that
process, a court will balance the first [factor] against the
second and third [factors]." Ibid. (quoting
Burstein, 85 N.J. at 408).
considering the second factor, the degree of reliance, a
court analyzes whether the old rule was administered in
"good faith reliance on 'then-prevailing
constitutional norms.'" State v. Howery, 80
N.J. 563, 570 (1979) (quoting United States v.
Peltier, 422 U.S. 531, 536 (1975)). In considering the
third factor, the administration of justice,
"retroactivity will not be afforded if it 'would
undermine the validity of large numbers of
convictions.'" Feal, 194 N.J. at 309
(quoting Knight, 145 N.J. at 252). "Ultimately,
the retroactivity determination turns on the court's view
of 'what is just and consonant with public policy in the
particular situation presented.'" Id. at
309-10 (quoting Knight, 145 N.J. at 251).
all four cases were pending on appeal at the time
J.L.G. was issued, we must decide only whether
pipeline retroactivity is appropriate. Our Supreme Court has
restricted the use of CSAAS expert testimony over the years.
See J.Q., 130 N.J. at 574-75, 582 (CSAAS testimony
may be used to help explain, for example, why an alleged
victim delayed reporting but may not be used to establish
guilt or innocence of the defendant); State v. P.H.,
178 N.J. 378, 383, 399 (2004) (reversing the conviction where
the court gave confusing instructions regarding the
jury's consideration of a delay in reporting abuse, which
impaired a "defendant's right to have the jury fully
evaluate witness credibility"); State v. R.B.,
183 N.J. 308, 327-28 (2005) (finding that a "CSAAS
expert should not describe the attributes exhibited as part
of that syndrome due to the risk that the jury may track the
attributes of the syndrome to the particular child in the
case"); State v. W.B., 205 N.J. 588, 613-14
(2011) (holding that a CSAAS expert shall not present
"[s]tatistical information quantifying the number or
percentage of abuse victims who lie" about sexual
abuse); State v. J.R., 227 N.J. 393, 416-17 (2018)
(finding that, "[t]o avoid confusing a jury, a CSAAS
expert should not cite another case—particularly a
publicized incident that resulted in a conviction," when
testifying, and "[a]s a general rule," a CSAAS
expert should not testify "as the State's initial
witness, prior to the testimony of the child victim").
These cases demonstrate the risk, even before
J.L.G., that CSAAS testimony could impair the
fact-finding process, and unfairly tip the balance against a
defendant charged with sexual assault of a child.
Pipeline retroactivity is appropriate here, because it would
afford defendants relief from unfair convictions, while not
unduly burdening the criminal justice system. The purpose of
the holding in J.L.G. is to avoid unjust convictions
in which the State's proofs are unfairly bolstered by
expert opinion that lacks a reliable basis. This factor looms
largest in our analysis. We recognize that prosecutors widely
utilized CSAAS testimony consistent with pre-J.L.G.
case law. However, pipeline retroactivity would not
significantly burden the administration of justice. In
Henderson, the Court decided to apply a new rule
purely prospectively, reasoning that "[t]o reopen the
vast group of cases decided over several decades, which
relied not only on settled law but also on eyewitness
memories that have long since faded, would 'wreak havoc
on the administration of justice [. . . .]'"
Henderson, 208 N.J. at 302 (quoting State v.
Dock, 205 N.J. 237, 258 (2011)); see Knight,
145 N.J. at 252 (noting that a new rule is generally not
provided retroactivity "when such an application would
undermine the validity of large numbers of convictions"
and "overwhelm courts").
in Henderson, where the Court considered a vast
number of cases of all kinds where an eye-witness
identification contributed to conviction, see 208
N.J. at 302, here the State represents that after an Attorney
General "informal survey . . . at least forty (40)
cases" were pending on appeal and would be affected by
pipeline retroactivity. In sum, in applying the three factors
used for identifying the appropriate form of retroactivity,
we conclude that J.L.G. should be given at least
admissibility of CSAAS expert testimony was raised below by
defendant G.E.P., who argued that the victim was no longer a
child. Neither R.P. nor C.K. raised the issue, and C.P.
argued at trial that the CSAAS expert's testimony
exceeded the permissible scope of such testimony. Neither
trial courts nor defendants can be expected to anticipate a
new rule of law. See Knight, 145 N.J. at 242, 258
(according new rule pipeline retroactivity without
articulating a standard of error, although the defendant did
not raise the issue below, as evidenced in the Appellate
Division decision: State v. Knight, 283 N.J.Super.
98, 108 (App. Div. 1995)). But see Feal, 194 N.J. at
312 (discussing plain error when according a new rule
pipeline retroactivity). Because the admission of CSAAS
expert testimony met the plain error standard in all four
cases, in that it raised a doubt as to the validity of the
jury verdict, State v. Daniels, 182 N.J. 80, 95
(2004), we will not belabor this discussion further.
J.L.G., the Court found the admission of CSAAS
testimony harmless. The State presented evidence including an
audio recording of an act of sexual abuse made by the victim
weeks before she spoke to police, an eyewitness account of
the defendant sexually aroused while lying on top of the
victim, and police-recorded telephone conversations where the
defendant offered the victim money and other items not to
testify against him. 234 N.J. at 273-75.
discuss in more detail below, the corroboration of the
victim's testimony in each case was far less than in
N.J.R.E. 702: "If scientific, technical, or other
specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education may testify thereto in the
form of an opinion or otherwise." J.L.G. held
that CSAAS expert testimony was admissible only when the
reasons for delayed disclosure are "beyond the ken of
the average juror[, which] will depend on the facts of the
case." 234 N.J. at 305. The Court continued:
If a child witness cannot offer a rational explanation for
the delay in disclosing abuse . . . expert evidence may be
admitted to help the jury understand the child's
behavior. In this context, we do not accept that jurors can