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

Prepared as a Public Service by the Law Office of Vincent J. Sanzone, Jr., Esq.

The Appellate Division on April 22, 2014, in an unpublished opinion, State v. Bueso, reverses a Union County jury verdict find the defendant guilty of first degree sexual assault.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

Law Office of Vincent J. Sanzone, Jr.

CriminalDefenseNJ.com

Elizabeth, New Jersey

(908) 354-7006

Dated: April 23, 2014

Increasingly Conservative New Jersey Supreme Court Get’s It Wrong with Affirming the Conviction of J.A.C.

The New Jersey Supreme Court affirmed the conviction of defendant, “J.A.C.”, in State v. J.A.C., when he was convicted of first degree sexual assault of a minor. 

In this case the alleged victim (“C.A”) claimed that J.A.C. has sexually assaulted her two years prior to the allegations.  In this case the alleged victim was caught by her parents engaging in explicit sexual language with 17 adult males.  After she was caught she was told by her parents that she would be sent to live with her Father in the mid-west as punishment for her behavior.  Fearing the punishment C.A. stated to her parents that she had been sexually abused by her Mother’s boyfriend two years before.

The defense attempted to use these prior emails and instant messages for two reasons.  First, to show that C.A. had made up the story of being sexually abused by J.A.C., to deflect attention from her behavior to that of an innocent third-party, J.A.C., in the hope of avoiding the relocation, and second, to explain her familiarity with sexual topics.

The prosecutor objected to the use of these emails under the guise of the Rape Shield Law arguing that a minor’s use of sexually explicit text messaging, or “sexting” should be excluded, as prior sexual conduct.

The trial court engaging in the balancing test ruled that although the jury could hear that C.A. was sexting with other adult males, they could not learn of the explicit sexual language that she was engaged in.

The Supreme Court affirming that decision ruled that

sexual instant messages constituted sexual conduct protected under the Rape Shield Law as codified under N.J.S.A. 2C:14-7(f).  Therefore, the trial court did not err in depriving the defendant his right to present his defense as guaranteed by the Sixth Amendment to the United States Constitution.  Accordingly, the defendant was deprived of presenting the most important evidence that C.A. had a motive for lying.  In New Jersey it is well settled that 404b evidence is available to both the state and the defense, and the defendant should have been allowed to avail himself to this important 404b evidence to show that C.A. had a motive to make a false allegation against the defendant.

In this case the jury heard the alleged victim’s story, and the jury was left with the perennial question. “why would this victim lie?”  The jury never had the opportunity to hear why she might have lied, and the defendant accordingly, was denied a fair trial.  Further, the jury never learned that C.A. had not learned about sex from the defendant, but was well versed in it prior to meeting the defendant, thus debunking the alleged victim’s credibility.  Further, this evidence could have been offered on behalf of the defense as intent evidence, which could lead the jury to the reasonable inference that C.A. was engaged in conduct that could be considered sexual aggression. 

In the final analysis it is respectfully submitted that this was a terrible decision because the rights of an accused to a fair trial was eviscerated. 

It is difficult enough for a defendant in these types of cases to get a fair trial and find open minded jurors who will listen to the evidence fairly and not make predetermined decisions as to guilt, without adding the additional burden on the defendant of taking away evidence which might lead to his or her acquittal.  Protecting victims in the criminal justice system is no doubt important, but no less important is the protecting of the criminal accused in this same system.  In this case the Rape Shield Law was not used as a shield to protect the alleged victims past history of sexual engagement, but rather, as a Rape Sword to cut off the defendant from having a fair trial and allowing the defendant from telling the complete story to the jury.  After all it is the jury that must make the decision as to guilt or innocence, and the courts had no business interfering with that decision making process by withholding important vital evidence, no matter how much it hurts the prosecutions case.

A writ of certiorari should be filed with the United States Supreme Court.

 

Law Office of Vincent J. Sanzone, Jr., Esq.

A New Jersey Criminal Defense Attorney

CriminalDefenseNJ.com

277 North Broad Street

Union County

Elizabeth, New Jersey 07207

Telephone: (908) 354-7006

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