Wednesday, April 23, 2014

Appellate Court Reverses Child Sexual Assault Conviction When Trial Court Fails to Properly Question Child As To Whether She Understood the Difference between a Truth And a Lie

The Appellate Division on April 22, 2014, in an unpublished opinion, State v. Bueso, reverses a Union County jury verdict find the defendant guilty of first degree sexual assault.

In this case the trial judge inadequately questioned the seven-year old alleged victim when he asked her whether she knew the difference between a round book and a square book.  Specifically, the trial judge showed the alleged victim a book and told her that it was round.  He than asked her if that was true, and she said that it was a lie.  That limited inquiry satisfied the judge that she knew the difference between a truth and a lie.

At the beginning of the alleged victim’s testimony the prosecutor was allowed to ask a series rehearsed leading questions which attempted to show that the alleged victim understood that her testimony had to be truthful.

However, the appellate division in reversing the conviction held that such a limited inquiry only ascertained whether the alleged victim knew the geometry, and was insufficient to determine whether the alleged victim understood her moral duty to tell the truth during the court proceedings.

Even though there was no objection by defense counsel to this inquiry, the plain error standard applied (State v. Bunch, 180 N.J. 534, 541 (2004), nevertheless the error was of such a consequences as having the clear capacity to produce an unjust verdict, and hence, a reversal was required.  The court cited State v. G.C. 188 N.J. 118, 131 (2006), citing that a child witness has to give testimony that he or she understands that there is a special obligation to tell the truth.  Also cited was State v. Zamorsky, 159 N.J. Super. 273, 280 (App. Div. 1978).  In that case the court required that the trial judge must inquire as to whether the child witness understands this special obligation.  In other words, the judge must perform this task with care and not in a pro forma or perfunctory manner.  In other words, the question is not whether the child knows the difference between a truth and a lie, but rather does he or she known that during his or her testimony that he or she has the moral responsibility to tell the truth.

Defending someone falsely accused of child abuse or sexual assault is the most challenging and difficult cases to defendant because most jurors believe what they are expected to believe, and often convict out of emotions to protect an alleged victim.  Often the jury’s duty to convict only if the state proves its case beyond a reasonable doubt is ignored by the jury.  Further, jurors often mistakenly believe that child witnesses only tell the truth, and would not make it up.  However, studies have proven over and over again that child witnesses can be very easily manipulated for numerous reasons.  If you are faced with such a serious charge who must retained an experienced New Jersey Criminal Defense Attorney.

By: Vincent J. Sanzone, Jr., Esq.
Elizabeth (Union, Essex, Hudson, Mercer, Bergen, Middlesex County) New Jersey
Elizabeth, New Jersey
(908) 354-7006

Dated: April 23, 2014

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