The Confrontation Clause requires that a criminal defendant must have the opportunity to confront and cross-examine the witnesses against them at trial. In State v. Harrell, decided earlier this year, the issue before the Court was whether admitting a child’s entire videorecorded statement at trial violates a defendant’s confrontation clause rights if the child testifies at trial that they can only recall one incident of sexual assault described in the statement.
In March, 2016, when the child was eight years old, she disclosed to a detective during a videorecorded interview that the defendant, who was her music teacher, repeatedly touched various parts of her body during school hours. The child also stated that the defendant placed her hand on his private parts over his clothing. Defendant was subsequently indicted for sexual assault, child endangerment and official misconduct.
The trial court originally granted the State’s motion to admit the child’s entire statement, finding that it was trustworthy and the child would testify at trial. However, while preparing for trial in 2022, the child could not remember most of the events she described in her statement six years earlier. She apparently remembered the incident where the defendant put her hand on his genitals, but could not recall other incidents. The trial court then granted a defense motion to limit the child’s trial testimony to the one allegation she could recall, and to redact the child’s statement to include that one incident. According to the trial court, the child’s inability to remember the other incidents rendered her unavailable for cross-examination concerning those allegations, thereby violating the defendant’s right of confrontation.
On appeal, the Appellate Division reversed the trial court’s order, finding that the defendant’s confrontation rights were not violated by admitting the entire statement previously found to be trustworthy if the child testifies at trial and is subject to cross-examination. Having the child testify at trial protected the defendant’s confrontation rights since defense counsel would thereby have the opportunity to expose the child’s inability to remember all of the underlying incidents before the jury. The appellate court found that the defendant’s confrontation right did not depend upon the child’s ability to recall every detail, but rather on his ability to probe her faulty memory on cross-examination. Since the child was going to testify at trial, the jury would be afforded the ability to assess her credibility and determine what, if any, weight to give her testimony. Thus, the onus was placed upon defense counsel to thoroughly probe the child’s inability to remember various incidents at trial, creating the impression before the jury that her testimony as to every incident, including the one she remembered, was not credible and should be rejected.
As a practical matter, the largest problem facing defense counsel was questioning a child witness about sensitive subject matter that formed the backbone of the State’s case. Generally speaking, child witnesses cannot be questioned as aggressively as adults. There is always a fear that overly aggressive questioning will leave the jury with the impression that defense counsel was “beating up” on a child witness. If that happens, the jury may credit the child’s testimony regardless of any perceived deficiencies in its content. Nevertheless, if a witness is available for testimony at trial, it is defense counsel’s job to protect the defendant’s confrontation rights by exposing problems and issues with that witness’s testimony, thereby giving the jury reasons to reject it.
James S. Friedman, Esq., is a New Jersey criminal defense attorney centrally based in New Brunswick. Mr. Friedman represents criminal defendants in the New Jersey Superior Court in all counties, all New Jersey municipal courts, and the United States District Court in New Jersey. Mr. Friedman also represents criminal defendants in the state and federal courts in Manhattan and Brooklyn, New York. If you have pending charges in one of these courts, call Mr. Friedman to discuss your options and plan your defense.