tender years exception in New Jersey

2026The Supreme Court has identified the following "non-exclusive list of factors relevant to evaluating the reliability of out-of-court statements made by child victims of sexual abuse": (1) the spontaneity of the statement, whether it was made without prompting or suggestive questioning; (2) whether the account provided by the declarant is consistently repeated; (3) the "mental state of the declarant"; (4) the "use of terminology unexpected of a child of similar age"; and (5) the declarant's "lack of motive to fabricate." Ibid. (citing Idaho v. Wright, 497 U.S. 805, 821-22 (1990)); see also Stat

2026A court's determination on whether to admit a child's statement under the tender-years exception may also be guided by the relevant factors identified by our Supreme Court in State v. Michaels: (1) "a lack of investigatory independence"; (2) "the pursuit by the interviewer of a preconceived notion of what has happened to the child"; (3) "the use of leading questions"; (4) "a lack of control for outside influences on the child's statements, such as previous conversations with parents or peers"; (5) "[t]he use of incessantly repeated questions"; (6) "[t]he explicit vilification or criticism of t

2026In determining whether a statement is sufficiently trustworthy to warrant its admission under the tender-years exception, a court must consider "the totality of the circumstances." State v. P.S., 202 N.J. 232, 249 (2010).

2025A-2304-22 14 When determining whether a statement is sufficiently trustworthy to warrant its admission under the tender-years exception, a court must consider "the totality of the circumstances." State v. P.S., 202 N.J. 232 , 249 (2010) (citing State v. Roman, 248 N.J.

2026A court's determination on whether to admit a child's statement under the tender-years exception may also be guided by the relevant factors identified by our Supreme Court in State v. Michaels: (1) "a lack of investigatory independence"; (2) "the pursuit by the interviewer of a preconceived notion of what has happened to the child"; (3) "the use of leading questions"; (4) "a lack of control for outside influences on the child's statements, such as previous conversations with parents or peers"; (5) "[t]he use of incessantly repeated questions"; (6) "[t]he explicit vilification or criticism of t

2025A-0283-22 12 In addition, as our Supreme Court has stated: "[I]n considering the admission into evidence of several repetitive corroborative statements under the tender years exception, a trial court should be cognizant of its right under N.J.R.E. 403, to exclude evidence if it finds in its discretion, that the prejudicial value of that evidence substantially outweighs its probative value." State v. D.G., 157 N.J. 112, 128 (1999). "[T]rial courts in a proper case must serve as gatekeepers when repetitive corroborating hearsay evidence is proffered pursuant to N.J.R.E. 803(c)(27)." State v. Smi

2025A-0283-22 12 In addition, as our Supreme Court has stated: "[I]n considering the admission into evidence of several repetitive corroborative statements under the tender years exception, a trial court should be cognizant of its right under N.J.R.E. 403, to exclude evidence if it finds in its discretion, that the prejudicial value of that evidence substantially outweighs its probative value." State v. D.G., 157 N.J. 112, 128 (1999). "[T]rial courts in a proper case must serve as gatekeepers when repetitive corroborating hearsay evidence is proffered pursuant to N.J.R.E. 803(c)(27)." State v. Smi

2025Our Supreme Court has noted that, when considering the admissibility of repetitive corroborative statements under the tender years exception to the hearsay rule, the trial court "should be cognizant of its right under N.J.R.E. 403, to exclude evidence, if it finds in its discretion, that the prejudicial value of that evidence substantially outweighs its probative value." D.G., 157 N.J. at 128 ; see also State v. Smith, 158 N.J. 376, 391 (1999) (finding that "trial courts in a proper case must serve as gatekeepers when repetitive corroborating hearsay evidence is proffered pursuant to" Rule 803

2026The Supreme Court has identified the following "non-exclusive list of factors relevant to evaluating the reliability of out-of-court statements made by child victims of sexual abuse": (1) the spontaneity of the statement, whether it was made without prompting or suggestive questioning; (2) whether the account provided by the declarant is consistently repeated; (3) the "mental state of the declarant"; (4) the "use of terminology unexpected of a child of similar age"; and (5) the declarant's "lack of motive to fabricate." Ibid. (citing Idaho v. Wright, 497 U.S. 805, 821-22 (1990)); see also Stat

2025Our Supreme Court has identified the following "non-exclusive list of factors relevant to evaluating the reliability of out-of-court statements made by child victims of sexual abuse": (1) the spontaneity of the statement, whether it was made without prompting or suggestive questioning; (2) whether the account provided by the declarant is consistently repeated; (3) the "mental state of the declarant"; (4) the "use of terminology unexpected of a child of similar age"; and (5) the declarant's "lack of motive to fabricate." Ibid. (citing Idaho v. Wright, 497 U.S. 805, 821-22 (1990)); see also Stat

2026A court's determination on whether to admit a child's statement under the tender-years exception may also be guided by the relevant factors identified by our Supreme Court in State v. Michaels: (1) "a lack of investigatory independence"; (2) "the pursuit by the interviewer of a preconceived notion of what has happened to the child"; (3) "the use of leading questions"; (4) "a lack of control for outside influences on the child's statements, such as previous conversations with parents or peers"; (5) "[t]he use of incessantly repeated questions"; (6) "[t]he explicit vilification or criticism of t

2025On appeal, defendant contends the court "failed to apply the trustworthiness factors" that have been enumerated by our Supreme Court in State v. Michaels, 136 N.J. 299, 312-13 (1994), in considering the admission of Jill's statement to investigators.

2021See also State v. Bethune, 121 N.J. 137, 146, 148 (1990), which states fresh complaint evidence could not be used "to prove . . . sexual assault charges" or to "corroborate the victim’s allegations . . . ." Neal asserts reversal is appropriate because only the tender years exception, which does not apply, permits the use of the statements for substantive proof of the abuse.

1990See State v. Bethune, 121 N.J. 137, 146 , 578 A.2d 364 (1990) (“... [I]f we were to remand for a new trial, there is a strong likelihood that Ms. Foster’s testimony would be admissible pursuant to Evidence Rule 63(33) (enacted subsequent to the Bethune trial), governing the tender-years exception to the hearsay rule.”) Defendant relies on our language in State v. T.P.M., 189 N.J.Super. 360, 366-367 , 460 A.2d 167 (App.Div.1983), where, in summarizing the federal definition of the ex post facto clause of the federal constitution, we said: The Clause prohibits any law which in relation to the pa

1999See State in Interest of S.M., 284 N.J.Super. 611, 621 , 666 A.2d 177 (App.Div.1995) (upholding conviction after admissibility of tender years statement was challenged where it was “clear that the court was fully aware of its responsibility to determine trustworthiness as outlined in Idaho v. Wright ”); State v. C.H., 264 N.J.Super. 112, 124 , 624 A.2d 53 (App.Div.) (acknowledging that the following Wright factors are to be considered when determining if an out-of-court statement is sufficiently trustworthy to be admissible under the tender years exception to hearsay: “spontaneity and consiste

1999See State in Interest of S.M., 284 N.J.Super. 611, 621 , 666 A.2d 177 (App.Div.1995) (upholding conviction after admissibility of tender years statement was challenged where it was “clear that the court was fully aware of its responsibility to determine trustworthiness as outlined in Idaho v. Wright ”); State v. C.H., 264 N.J.Super. 112, 124 , 624 A.2d 53 (App.Div.) (acknowledging that the following Wright factors are to be considered when determining if an out-of-court statement is sufficiently trustworthy to be admissible under the tender years exception to hearsay: “spontaneity and consiste

2018The source of the current tender-years exception, including its incompetency proviso, is State v. D.R. , 109 N.J. 348 , 537 A.2d 667 (1988).

2018The source of the current tender-years exception, including its incompetency proviso, is State v. D.R. , 109 N.J. 348 , 537 A.2d 667 (1988).

2025A-2304-22 14 When determining whether a statement is sufficiently trustworthy to warrant its admission under the tender-years exception, a court must consider "the totality of the circumstances." State v. P.S., 202 N.J. 232 , 249 (2010) (citing State v. Roman, 248 N.J.

1999See State in Interest of S.M., 284 N.J.Super. 611, 621 , 666 A.2d 177 (App.Div.1995) (upholding conviction after admissibility of tender years statement was challenged where it was “clear that the court was fully aware of its responsibility to determine trustworthiness as outlined in Idaho v. Wright ”); State v. C.H., 264 N.J.Super. 112, 124 , 624 A.2d 53 (App.Div.) (acknowledging that the following Wright factors are to be considered when determining if an out-of-court statement is sufficiently trustworthy to be admissible under the tender years exception to hearsay: “spontaneity and consiste

2025M.W.'s statements to her mother about the bladder pain she was experiencing satisfy both the tender years exception, N.J.R.E. 803(c)(27) and State v. Coder, 198 N.J. 451, 465-69 (2009), and the fresh complaint exception, R.K., 220 N.J. at 455 , as they are arguably related to the sexual abuse alleged against defendant, and they were used to negate any argument that M.W. did not make a prompt complaint.

2016Id. at 468 .

2025With respect to the fresh complaint exception, it is a common law exception to the rule against hearsay that "allows the admission of evidence of a victim's complaint of sexual abuse, otherwise inadmissible as hearsay, to negate the inference that the victim's initial silence or delay indicates that the charge is fabricated." State v. R.K., 220 N.J. 444, 455 (2015).

2025M.W.'s statements to her mother about the bladder pain she was experiencing satisfy both the tender years exception, N.J.R.E. 803(c)(27) and State v. Coder, 198 N.J. 451, 465-69 (2009), and the fresh complaint exception, R.K., 220 N.J. at 455 , as they are arguably related to the sexual abuse alleged against defendant, and they were used to negate any argument that M.W. did not make a prompt complaint.

2018If, however, the defendant's statement is unnecessary to prove defendant's guilt because there is other evidence that clearly establishes guilt, or if the defendant has acknowledged the truth of his statement, the failure to give a Hampton charge would not be reversible error. [Jordan, 147 N.J. at 425-26 (alteration in original).] 4 A-5308-15T2 We note the State's introduction of: the eight-year-old victim's fresh complaint4 on the date of the assault; her video- recorded statement admitted into evidence under the tender-years exception;5 and a sexual assault nurse examiner's testimony that on

1990See State v. Bethune, 121 N.J. 137, 146 , 578 A.2d 364 (1990) (“... [I]f we were to remand for a new trial, there is a strong likelihood that Ms. Foster’s testimony would be admissible pursuant to Evidence Rule 63(33) (enacted subsequent to the Bethune trial), governing the tender-years exception to the hearsay rule.”) Defendant relies on our language in State v. T.P.M., 189 N.J.Super. 360, 366-367 , 460 A.2d 167 (App.Div.1983), where, in summarizing the federal definition of the ex post facto clause of the federal constitution, we said: The Clause prohibits any law which in relation to the pa

1990See State v. Bethune, 121 N.J. 137, 146 , 578 A.2d 364 (1990) (“... [I]f we were to remand for a new trial, there is a strong likelihood that Ms. Foster’s testimony would be admissible pursuant to Evidence Rule 63(33) (enacted subsequent to the Bethune trial), governing the tender-years exception to the hearsay rule.”) Defendant relies on our language in State v. T.P.M., 189 N.J.Super. 360, 366-367 , 460 A.2d 167 (App.Div.1983), where, in summarizing the federal definition of the ex post facto clause of the federal constitution, we said: The Clause prohibits any law which in relation to the pa