Fighting back against and 803(c)(27) motion in New Jersey post-Crawford
As if dealing with a child sex crimes case in New Jersey wasn’t challenging enough, N.J.R.E. 803(c)(27) makes life much more difficult for defense attorneys. Throwing the Constitution out of the window for these narrow class of cases, this rule states that the victim’s out of court statements to others is admissible. Thus, instead of the jury just hearing from the victim, the jury gets to hear from a a parade of witnesses about the alleged abuse. This can include any number of people including family members, medical personnel, teachers, DYFS workers, law enforcement, etc. Having these allegations repeated over and over again is devastating to the defense.
Luckily, there is some measure of sanity in the defense attorney’s best friend – Crawford. Crawford v. Washington changed criminal defense forever. Moving forward, all hearsay that is testimonial in nature is barred. This can have a big impact on an 803(c)(27) analysis. In deciding such a motion, the court will first determine if the statement is trustworthy. If it is, the analysis will then shift to determine if the statement is admissible pursuant to Crawford. The post-Crawford case law is extensive and cannot be reviewed here. However, the analysis should clearly start with whether or not the statement is testimonial and whether the victim will testify to the initial allegations.
Defense attorneys should review State v. Nyhammer, 197 N.J. 383 (2009) to see how not to confront one of these cases. That case involved the introduction of the child victim’s videotaped statement. Oddly enough, the defense did not argue that is was trustworthy. Thus, the first part of this analysis was rather easy. The victim testified but was apparently reluctant to get into the details of the allegations. On cross, the defense asked safe questions apparently scared to engage in vigorous cross of the victim. As a result, the Court held that the defendant was not denied his right to confrontation when he chooses not to cross examine the victim.
Thus, when attacking these issues, the defense attorney should consider each statement separately because the analysis for each one may be different. Unlike the defense in Nyhammer, the trustworthiness of the statement should also be hammered home. After all, if the statement is trustworthy, what is the defense? Next, a Crawford argument should be made as to each statement. Be mindful of cases that the State may use and have something ready to counter them. Also look to other states for guidance to support your arguments. Most importantly, don’t forget to raise these issues again at trial since something may occur that will chance the court’s prior ruling.