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State v. G.E.P

Superior Court of New Jersey, Appellate Division

March 27, 2019

STATE OF NEW JERSEY, Plaintiff-Respondent,
G.E.P., [1] Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent,
R.P., Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent,
C.P., Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent,
C.K., Defendant-Appellant.

          Argued January 24, 2019

          On 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).

          Joseph 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.

          Stefan 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).

          John 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).

          Dennis 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 briefs).

          Lila 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).

          Before Judges Koblitz, Ostrer and Mayer.

          KOBLITZ, P.J.A.D.

         We 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 guilty verdict.


         We 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.

         In 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 juror.
[Id. at 272.]

         The 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.


         These 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 options:
(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.]

         Three 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).

          The 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 breathalizer machines).

         Full retroactivity has been afforded in situations that strike "at the heart of the truth-seeking function," such as:

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).

         In 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).

         Because 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").

         Unlike 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 pipeline retroactivity.


         The 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.

         In 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.

         As we discuss in more detail below, the corroboration of the victim's testimony in each case was far less than in J.L.G.


         Under 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 ...

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