There Are Specific Evidentiary Rules as It Relates to Sex Abuse Cases, Especially Those Involving Children
Appellate Docket No.: A-0791-19
Decided July 22, 2022
Submitted by New Jersey Sex Crime Lawyer, Jeffrey Hark
In a recent unpublished decision, the Appellate Division of New Jersey upheld several evidentiary rulings after defendant was convicted of sexual abuse of his niece, including barring a prior statement a previous Division of Child Protection and Permanency (DCP&P) investigation in which defendant’s niece has prior angry outbursts.
In D.H.P.-D, in September 2018, defendant’s seven-year-old niece, N.P. (Nina) attended her cousin’s birthday party at the home of her aunt, J.H. (Jane), and defendant. Nina did not want to leave the party when her mother, N.H. (Nadia), was ready to depart, so Nina was permitted to sleep at Jane’s house overnight. Later that night, Nina told Jane that defendant had touched her “parts,” pointing to the area of her groin.
Nina explained the incident happened in the summer of 2018 when she was at Jane’s home. According to Nina, she was watching a movie with her cousin in Jane’s living room when defendant began touching her “parts,” but he stopped as Jane descended the stairs to the living room. Jane asked Nina how many times defendant engaged in this behavior and Nina answered “two, three, twenty.”
During the forensic interview, Nina related to Detective Manzo that defendant “touched [her] in [her] private part” “in the summer” by “just put[ting] his hand insider [her].” Consistent with what she explained to Jane and Nadia, Nina informed the detective she was watching a children’s movie with her cousin in Jane’s home when the assault occurred.
Detective Manzo offered Nina anatomically correct dolls to help her describe what occurred and asked her to circle on drawings of body parts where defendant touched her. Using the dolls, Nina indicated how defendant touched her vagina with his hand. When Detective Manzo asked Nina how it “fel[t] when [defendant] was touching [her] private part,” she responded, “It felt like . . . it was weird.” Detective Manzo asked, “[w]as it just one time he put his hand on your private part or did this happen a bunch of different times,” to which Nina answered, “I think only one time.”
Defendant was indicted in December 2018 on charges of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), second-degree sexual assault and third-degree endangering the welfare of a child. Thereafter, Judge Richard W. English conducted a hearing under N.J.R.E. 104(a) to determine the admissibility of Nina’s out-of-court statements to Detective Manzo and Jane. Following his review of the video of Nina’s forensic interview and the testimony of Detective Manzo and Jane, the judge issued an oral decision, finding Nina’s out-of-court statements to these individuals were admissible under the tender years exception to the hearsay rule, N.J.R.E. 803(c)(27).
During additional pretrial hearings, defendant requested two sentences from a 2016 Division of Child Protection and Permanency (Division) report be admitted into evidence. One sentence referred to Nina having a “history with Mobile Response services” and the other confirmed “[i]n August 2016, the child was assessed for angry outbursts.” Defendant argued in favor of their admission “to establish that because [Nina] had a history of outbursts, it followed . . . she made up . . . allegations against [him] for attention or out of anger.” The Court stated that defense could try and ascertain the information during cross examination.
Following their deliberations, the jury acquitted defendant of the first degree charge but found him guilty of the remaining charges. At sentencing, Judge English merged the endangering charge and sentenced defendant to a six year term on the sexual assault offense.
Defendant appealed arguing the two sentences defendant sought to introduce from the 2016 DCP&P should have been introduced but the Appellate Division agreed with the trial court that it was appropriate that they were not admissible, as the defendant failed to provide a logical nexus between the 2016 report and the current case.
Defendant argued that Detective Manzo should not have been permitted to testify about Nina’s out of court statements. The Appellate Division again disagreed finding N.J.R.E. 803(c)(27) allows for admission of “a statement by a child under the age of [twelve] relating to sexual misconduct” if the child testifies and “the court finds, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement[,] there is a probability that the statement is trustworthy.” The Appellate Division found that the statements admitted fell under this exception.
This case is important to understand there are specific evidentiary rules as it relates to sex abuse cases, especially those involving children. You must obtain an experienced criminal defense attorney who is well versed in these various evidentiary rules and exceptions that way you have the best chance of upholding your liberty.
If you have been charged with any first degree crime, second degree crime, third degree crime, fourth degree crime, disorderly persons offense, municipal ordinance violation, or traffic ticket / DUI/DWI, contact an experienced criminal defense attorney today. At Hark & Hark, we represent clients in Superior Court and municipal court for criminal matters like the present case. We vigorously defend our clients by fighting to ensure prosecutors, police, and even judges follow the law.
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