COUNSEL. ANNETTE VERDESCO: ANNETTE VERDESCO FROM THE LAW FIRM OF CARUSO SMITH
ON BEHALF OF THE APPELLANT. CLAUDE CAROLINE HEFFRON: CLAWED HEFFRON. MILTON
S. LEIBOWITZ: ASSISTANT PROSECUTOR MILTON S LEIBOWITZ. THOMAS M. CAROCCIA:
DEPUTY ATTORNEY GENERAL. ANNETTE VERDESCO: GOOD MORNING JUSTICES. THE ISSUE
BEFORE THIS COURT TODAY IS WHETHER THE APPLE RIGHTS WOULD BE VIOLATED BY THE ADMISSION
OF A.R.'S TENDER YEARS STATEMENT INTO EVIDENCE WHEN SHE DID NOT RECALL SOME OF THE
SUBSTANTIVE ALLEGATIONS SHE MADE IN THE VIDEOTAPE EVIDENCE AGAINST THE DEFENDANT AT A
104 HEARING. THE COMPANION ISSUE IN IS THIS CASE, JUDGE, IS WHETHER THE APPELLATE DIVISION
COMMITTED ERROR IN OVERRULING THE TRIAL COURT'S ORDER DIRECTIVE WHICH ORDERED A REDACTION
OF A.R.'S VIDEOTAPE STATEMENT TO ONLY INCLUDE THE ALLEGATIONS THAT SHE RECALLED. AT
THE TIME OF THE INCIDENT, A.R. WAS EIGHT YEARS OLD. SHE WAS IN SECOND GRADE AT PLAINFIELD
MUNICIPAL DISTRICT. THE DEFENDANT WAS HER TEACHER, HER MUSIC TEACHER. AT THE TIME IN
MARCH OF 2016, A.R. MADE SOME ALLEGATIONS AGAINST THE DEFENDANT. THE FIRST ALLEGATION
SHE MADE, WHICH I'M GOING TO LABEL THE UNDER THE TABLE INCIDENT, A.R. ALLEGED THAT THE
DEFENDANT TOOK HER HAND AND PUT IT ON HIS PENIS OVER HER CLOTHING. THE UNDER THE TABLE
INCIDENT IS NOT AN ISSUE BEFORE THIS COURT BECAUSE SHE RECALLED THAT INCIDENT AT THE
104 HEARING. THE ALLEGATIONS THAT A.R. DID NOT RECALL IS THAT THE DEFENDANT
TOUCHED HER PRIVATE PARTS. NAMELY, HER BUTTOCKS, HER THIGH AND HER VAGINAL AREA OVER
HER CLOTHING AND THAT HE RUBBED HIS PENIS AGAINST HER. THOSE ALLEGATIONS SHE HAD NO
RECOLLECTION OF AT THE 104 HEARING. SHE MADE ALL ALLEGATIONS IN THE VIDEOTAPED
INTERVIEW SHORTLY AFTER THE INCIDENT. THAT VIDEOTAPE INTERVIEW WAS HEARD BY THE COURT
AT A PRETRIAL HEARING IN THIS CASE, IN WHICH THE COURT ADMITTED HER STATEMENTS MADE IN
THAT INTERVIEW PURSUANT TO THE TENDER YEARS EXCEPTION UNDER THE RULES OF EVIDENCE.
HOWEVER, SHORTLY BEFORE THIS CASE PROCEEDED TO TRIAL, THE STATE INFORMED THE
DEFENSE THAT A.R. WAS UNABLE TO RECALL SOME OF THE INCIDENTS THAT SHE ALLEGED IN THE VIDEO
INTERVIEW. CHIEF JUSTICE RABNER: COUNSEL, JUST IN CASE IT HELPS YOU, WE'RE
FAMILIAR WITH THE FACTS. YOU CAN GO FORWARD WITH YOUR ARGUMENT. ANNETTE VERDESCO:
THANK YOU, JUDGE. THE UN-DISPUTED RECORD I THINK IS BEFORE THIS COURT IS, A.R. TESTIFIED
AT THE HEARING. SHE ONLY TESTIFIED TO CERTAIN GERMANE INNOXIOUS FACTS AS TO THE LAYOUT
OF THE COURTROOM. DEFENDANT WAS HER MUSIC TEACHER. SHE TESTIFIED TO THE UNDER THE
TABLE INCIDENT. SHE COULD NOT RECALL EVEN THE TOUCHING INCIDENT, IN-APPROPRIATE TOUCHING
INCIDENT EVER OCCURRING. SHE COULD NOT RECALL TELLING THE POLICE ABOUT IT. SHE HAD NO
RECOLLECTION WHATSOEVER OF THE INCIDENT. SHE DID REMEMBER TELLING THE POLICE SOMETHING
BUT HAD NO RECOLLECTION AS TO THE SUBSTANTIVE OR MATERIAL FACTS. IT IS UN-
DISPUTED THAT THE -- HER STATEMENT IS TESTIMONIAL, THAT THEREBY IT WOULD TRIGGER THE
CONFRONTATION CLAUSE. BECAUSE HER STATEMENT WAS TAKEN IN ANTICIPATION OF CRIMINAL PROSECUTION
IN THIS CASE. THERE'S ALSO A STRONG ARGUMENT TO BE MADE THAT THESE ALLEGATIONS
THAT ARE SUBJECT TO APPEAL ARE SOLELY BASED IN EVIDENCE IN THE VIDEO STATEMENT THAT A.R.
GAVE. BEFORE WE GOAT THE CONFRONTATION ISSUE, I SUBMIT WE FIRST MUST
DECIDE WHETHER A.R. IS EVEN AVAILABLE FOR TESTIMONY UNDER THE EVIDENCE RULES. AND THAT
ISSUE WAS SET FORTH IN MY BRIEF. WE SPECIFICALLY SET FORTH THAT SHE'S UNAVAILABLE UNDER
EVIDENCE RULE 804A FOUR WHICH REQUIRES AND SETS FORTH A DECLARANT IS UNAVAILABLE WHEN
SHE HAS A LACK OF MEMORY OR STATEMENT. THAT RULE WAS CITED IN A SUPREME COURT CASE, STATE
VERSUS CODER, WHICH IS SIMILAR TO THIS CASE AS WELL, 198 NEW JERSEY 4512009. WHICH IS
STILL GOOD LAW. IN STATE VERSUS CODER, A THREE-YEAR-OLD CHILD WAS TAKEN IN THE
BASEMENT, ALLEGEDLY SEXUALLY ASSAULTED AND SHE HAD NO RECOLLECTION OF THE EVENTS AT THE
104 HEARING AND COULD NOT TESTIFY AT TRIAL AS WELL. THIS COURT SET FORTH THAT
THE THREE-YEAR-OLD OLD VICTIM's IN-ABILITY OR UN-WILLINGNESS TO TESTIFY MADE HER
UNAVAILABLE UNDER NEW JERSEY RULE OF EVIDENCE 804. ULTIMATELY THIS COURT ALLOWED THE STATEMENT
IN BECAUSE IT WAS NON-TESTIMONIAL AND DID NOT TRIGGER THE CONFRONTATION CLAUSE.
WE ALSO CITED TO EVIDENCE RULE 602 WHICH THE VICTIM OR THE WITNESS MUST HAVE PERSONAL
KNOWLEDGE TO TESTIFY. I RESPECTFULLY SUBMIT TO THIS COURT IN THIS CASE, A.R. IS UNAVAILABLE
TO TESTIFY. THE TENDER YEARS EXCEPTION, 803C-27, REQUIRES THE VICTIM TO BE AVAILABLE
TO TESTIFY. HER LACK OF MEMORY, HER TOTAL LACK OF MEMORY AS IT RELATES TO THESE ALLEGATIONS
THAT ARE IN ISSUE BEFORE THIS COURT MAKES HER UNAVAILABLE. JUSTICE
WAINER-APTER: WHY WOULD IT MATTER WHETHER SHE WAS UNAVAILABLE UNDER RULE 804 IF THE RULE
THAT THE STATE IS RELYING ON IS 803 C AND THEN 803C-27 C I, I THINK IS SPECIFICALLY JUST
ASKING IF THE CHILD TESTIFIES AT THE PROCEEDING. HERE SHE WOULD TESTIFY AT TRIAL, CORRECT?
ANNETTE VERDESCO: THAT'S CORRECT, JUDGE. JUSTICE WAINER-APTER:
HOW DO WE GET TO THAT WHICH SPECIFICALLY DOESN'T DEPEND ON AVAILABILITY AND ASKS ONLY
WHETHER THE CHILD WILL TESTIFY AT TRIAL. ANNETTE VERDESCO: JUDGE, THERE'S
A QUESTION I THINK IN CASES WHERE A CHILD CANNOT TESTIFY AT TRIAL. JUSTICE
WAINER-APTER: BUT HERE SHE CAN. I UNDERSTAND IN CODER THAT THE CHILD DID NOT TESTIFY
AT TRIAL. SO THAT SEEMS LIKE A SIGNIFICANT DIFFERENCE BECAUSE HERE THE RULE SIMPLY ASKS
WILL THE CHILD QUOTE TESTIFY AT THE PROCEEDING AND HERE THE ANSWER IS YES AND IN CODER
IT WAS NO. ANNETTE VERDESCO: THAT'S CORRECT, JUDGE. BUT I THINK THE QUESTION
BECOMES, SHE'S PHYSICALLY ABLE TO BE PRESENT AT THE HEARING. BUT CAN SHE REALLY TESTIFY
AS TO THE ALLEGATIONS IN ISSUE? CHIEF JUSTICE RABNER: WASN'T THAT YOUR
CONSTITUTIONAL ARGUMENT? ISN'T THAT REALLY YOUR CONSTITUTIONAL ARGUMENT? ANNETTE
VERDESCO: THAT'S CORRECT, JUDGE. AND I WILL MOVE ON TO THAT. CHIEF JUSTICE RABNER:
LET'S PUT 804 ON THE BACK. ANNETTE VERDESCO: I WILL, YOUR HONOR. SO THE
QUESTION BECOMES WHETHER CONFRONTATION IS VIOLATED BY SUBMISSION OF EVIDENCE IN THIS
CASE. OBVIOUSLY THE SEMINAL CASE IS COFFER VERSUS WASHINGTON. AND THAT CASE SETS FORTH
THE RELIABILITY OF THE WITNESS HAS TO BE ASSESSED BY WAY OF CONSIDERATION. JUSTICE
PATTERSON: SO YOU'RE GOING TO CROSS-EXAMINE HER AND I PRESUME YOU'LL DO A SKILLFUL JOB
AND YOU WILL I'M SURE BE ABLE TO ESTABLISH BEFORE THE JURY THAT SHE -- THAT THREE OUT OF THE
FOUR ALLEGATIONS THAT SHE MADE AT THE TIME OF THE INVESTIGATION SHE HAS NO RECOLLECTION
OF AND DOESN'T EVEN RECALL MAKING THE STATEMENTS. AND THAT'S CROSS-EXAMINATION, ISN'T
IT, COUNSEL? ANNETTE VERDESCO: YOUR HONOR, I SUBMIT TO THIS COURT THAT IS
NOT CROSS-EXAMINATION AS REQUIRED BY THE. JUSTICE PATTERSON: WHY IS IT NOT?
YOU'VE CONCEDED THAT SHE WILL BE ABLE TO TESTIFY WITH RESPECT TO THE SO-CALLED TABLE INCIDENT.
SO PRESUMABLY A JURY WOULD BE ABLE TO COMPARE HER TESTIMONY, SHE REMEMBERS THE STATEMENTS,
SHE REMEMBERS THE EVENT, SHE CAN TESTIFY TO IT. YOU'LL OBVIOUSLY HAVE CROSS ABOUT IT.
BUT TWO -- THREE OTHER INCIDENTS, PART OF THE CHARGES HERE IN WHICH HER RECOLLECTION DOES
NOT EXIST APPARENTLY. WHY IS THAT NOT CROSS-EXAMINATION? ANNETTE
VERDESCO: BECAUSE IT'S NOT MEANINGFUL, AN EFFECTIVE CROSS-EXAMINATION. I SUBMIT THAT'S
WHAT THE COURT HAS TO DECIDE TODAY. JUSTICE PATTERSON: YOU'RE SAYING THE
CONFRONTATION CLAUSE REQUIRES -- ANNETTE VERDESCO: YOUR HONOR, I DO SUBMIT
THAT TO THIS COURT. I SUBMIT THAT THIS -- YOUR JUSTICES TODAY HAVE TO DECIDE WHAT IS
REQUIRED UNDER THE CONFRONTATION CLAUSE. IS IT MERE OPPORTUNITY TO CROSS-EXAMINE WITH
THE WITNESS JUST BEING PHYSICALLY PRESENT ON THE STAND OR DOES IT REQUIRE MEANINGFUL AND
EFFECTIVE CROSS-EXAMINATION. JUSTICE PATTERSON: ANY TIME THAT CROSS-EXAMINATION
IS NOT EFFECTIVE IN THE DEFENDANT'S VIEW, PERHAPS BECAUSE THE WITNESS REMEMBERS NINE EVENTS
BUT IS SHAKY ON THE TENTH, THERE'S A CONFRONTATION VIOLATION? ANNETTE
VERDESCO: NO, YOUR HONOR. NO, YOU'RE NOT. IT'S IN THIS CIRCUMSTANCE WHERE YOU'RE GOING
TO HAVE -- IF THAT ENTIRE VIDEO STATEMENT IS ADMITTED INTO EVIDENCE, WHAT'S GOING TO
HAPPEN IS THIS VICTIM IS GOING TO COME ON THE STAND. SHE'S GOING TO TESTIFY TO THE GERMANE
UN-DISPUTED FACTS OF THE CLASSROOM. SHE'S GOING TO TESTIFY TO THE UNDER THE TABLE INCIDENT
AND AS IT RELATES TO THE ALLEGATIONS IN ISSUE, SHE CANNOT RESPOND. CHIEF JUSTICE
RABNER: SO THE OPINION THE COURT WILL WRITE IN THIS CASE WILL HAVE AN IMPACT IN OTHER
CASES OF COURSE AS WELL. ANNETTE VERDESCO: THAT'S CORRECT, YOUR HONOR.
CHIEF JUSTICE RABNER: WHAT I WANT YOU TO DO IS TRY TO HELP US UNDERSTAND THE BREATH
OF YOUR ARGUMENT, ITS SCOPE. WHERE IS THE CONSTITUTIONAL LINE IN TERMS OF WHEN A
WITNESS WITH A FAILURE TO RECOLLECT CAN TESTIFY. YOU'VE ARGUED TO US IF THEY HAVE NO
MEMORY, THEY SHOULDN'T BE ALLOWED ON THE STAND. IF THEY HAVE A FAULTY MEMORY AS TO IMPORTANT,
KEY FACTS, CAN THEY TESTIFY IF THEY HAVE A WEAK MEMORY AS TO SOME BUT NOT ALL OF THE KEY
FACTS, CAN THEY TESTIFY? WHERE DOES THE CONSTITUTION DRAW THE LINE?
ANNETTE VERDESCO: I BELIEVE THE LINE IS DRAWN WHEN THERE IS NO MEMORY. THIS IS NOT A
WITNESS WITH A BAD MEMORY OR A FAULTY MEMORY. WHOSE MEMORY CAN BE TESTED ON
CROSS-EXAMINATION. I BELIEVE THE LINE IS DRAWN IN CIRCUMSTANCES WHERE THE VICTIM OR THE
WITNESS HAS NO MEMORY WHATSOEVER -- CHIEF JUSTICE RABNER: SO YOU'RE DRAWING
-- TO BORROW FROM YOUR ARGUMENT, YOU SEE A DISTINCTION BETWEEN AN EMPTY VESSEL AND A
NEARLY EMPTY VESSEL. ONE CAN TESTIFY BUT THE OTHER CAN'T. ANNETTE VERDESCO:
A NEARLY EMPTY VESSEL CAN RE-COUNT SOME OF THE FACTS THAT SURROUND THE ALLEGATIONS. AND
THAT'S REALLY WHAT THE ISSUE IS HERE. THE DEFENSE IS UNABLE TO CHALLENGE THESE
ALLEGATIONS THAT FORM THE BASIS OF THE CHARGES AGAINST THE DEFENDANT. THAT FORM THE BASIS
OF THE ELEMENTS OF THE CRIME AGAINST DEFENDANT. WHICH THE STATE HAS THE BURDEN TO PROVE
EACH AND EVERY ELEMENT BEYOND A REASONABLE DOUBT. JUSTICE WAINER-APTER: YOU
SAY YOU HAVE THE INABILITY TO CHALLENGE, BUT YOU COULD ASK THE VICTIM ON THE STAND, IN
FACT, YOU DO NOT REMEMBER ANYTHING ABOUT THIS ALLEGATION, CORRECT? ANNETTE
VERDESCO: THAT'S CORRECT. JUSTICE WAINER-APTER: AND YOU COULD POINT OUT, FOR
EXAMPLE, AS YOU EXPLAINED, THAT THE VICTIM REMEMBERED THE LAYOUT OF THE ROOM AND I THINK
ALSO REMEMBERED SOMETHING THAT HAD MOVED IN THE ROOM WHEN SHE WAS SHOWN A PICTURE AND
YOU CAN EXPLAIN THAT THE VICTIM REMEMBERED TALKING TO A FRIEND. I THINK SHE EVEN SAID
SHE HAD TALKED TO TWO FRIENDS ABOUT INCIDENTS OF SEXUAL ASSAULT. YOU COULD POINT ALL
OF THIS OUT AND THEN POINT OUT AND YOU REMEMBER ABSOLUTELY NOTHING ABOUT THIS INCIDENT,
CORRECT? ANNETTE VERDESCO: THAT'S CORRECT, YOUR HONOR. JUSTICE
WAINER-APTER: WHY IS THAT NOT AN OPPORTUNITY FOR CROSS-EXAMINATION? ANNETTE
VERDESCO: IT'S NOT AN OPPORTUNITY TO CROSS-EXAMINE BECAUSE SHE CANNOT BE TESTED AS
TO HER PERCEPTION AND HER RECOLLECTION OF THESE EVENTS THAT FORM THE CHARGES AGAINST THE
DEFENDANT. SHE CANNOT BE QUESTIONED AS TO THE WHERE, HOW AND WHY OF THESE ALLEGATIONS,
WHICH IS THE BASIS OF CROSS-EXAMINATION; TO DISCOVER THE TRUTH. JUSTICE
PATTERSON: RESPECTFULLY, IT LOOKS TO ME LIKE A PARTICULARLY VALUABLE OPPORTUNITY FOR
CROSS-EXAMINATION BECAUSE YOU'RE NOT GOING TO BE QUIBBLING OVER THE DETAILS ON THESE EVENTS.
SHE IS GOING TO TESTIFY AND I THINK THE 104 HEARING ESTABLISHES WHAT SHE'LL TESTIFY, BUT
SHE HAS NO RECOLLECTION OF EITHER THOSE INCIDENTS OCCURRING OR THE -- OR TELLING THE DETECTIVE
THAT THOSE INCIDENTS HAD OCCURRED. SO TO SAY THAT IT'S NOT -- THAT THERE ISN'T
AN OPPORTUNITY TO GO OVER THE SPECIFICS, TO ME WOULD MEAN -- WOULD SUGGEST THAT YOU HAVE
THE OPPORTUNITY FOR A PARTICULARLY STRONG CROSS-EXAMINATION ON THOSE ISSUES.
ANNETTE VERDESCO: BUT THE CONCERN IS, WHAT ABOUT THE PREJUDICE TO THE DEFENDANT THAT
THESE UN-SUBSTANTIATED ALLEGATIONS COME INTO EVIDENCE. THEY'RE NOT TESTED. THEY'RE NOT
CHALLENGED ON CROSS-EXAMINATION AS TO THE SPECIFICS, BECAUSE SHE HAS NO MEMORY. WHAT
IS THE CUMULATIVE EFFECT TO THAT? DOES THAT CAUSE THE JURY TO THEN SPECULATE? DOES THAT
THEN CAUSE THAT THIS VICTIM's CREDIBILITY IS BOLSTERED BECAUSE THE FACTFINDER MAY
INTERPRET, WELL, SHE REMEMBERS THE UNDER THE TABLE INCIDENT, WHY DOESN'T SHERYL THESE OTHER
ALLEGATIONS? JUSTICE MICHAEL NORIEGA: BUT HAVING HAD THE CHANCE TO CROSS
AND DISCUSS THOSE MATTERS IN COURT WITH THE WITNESS PRESENT, DOESN'T IT GIVE BOTH PARTIES
THE OPPORTUNITY AT CLOSING TO MAKE SUGGESTIONS ABOUT IT. IF SHE LIED ABOUT THREE OF THEM
BECAUSE IT DIDN'T HAPPEN, THEN THE FOURTH ONE DIDN'T HAPPEN. DOES THE STATE GET A FAIR
SHOT TO EVALUATE THAT EVIDENCE. ANNETTE VERDESCO: I BELIEVE THEY GET A FAIR
SHOT BUT THE PREJUDICE TO THE DEFENDANT CANNOT BE OVERCOME. BECAUSE, AS I SAID, THE JURY
COULD BE CAUSED TO SPECULATE AS TO THE ALLEGATION, WHY SHE DOESN'T REMEMBER THOSE,
WHY SHE REMEMBERS THE UNDER THE TABLE. WHILE SHE REMEMBERS THE UNDER THE TABLE, THAT COULD
BOLSTER HER CREDIBILITY. AND HERE -- JUSTICE PATTERSON: YOU'RE CONCEDING
THAT COMES IN. SO UNDER ALL SCENARIOS, SHE TESTIFIES ABOUT THAT EVENT AND HER STATEMENT
COMES IN ON THAT EVENT, RIGHT? ANNETTE VERDESCO: YES. JUSTICE
PATTERSON: ARE YOU SUGGESTING THAT BY HAVING HER ON THE STAND ADMITTING SHE HAS NO
RECOLLECTION OF THESE OTHER EVENTS, SHE IS SOMEHOW BOLSTERING HER TESTIMONY AND BOLSTERING
HER CREDIBILITY WHEN SHE DOESN'T REMEMBER THESE OTHER EVENTS? ANNETTE VERDESCO:
I SUBMIT THAT THE STATE IS -- BY ADMISSION OF THESE ALLEGATIONS, THE STATE'S CASE IS
BOLSTERED AND POSSIBLY THE VICTIM's CREDIBILITY IS BOLSTERED. JUSTICE PIERRE-LOUIS:
BUT THE CREDIBILITY DETERMINATION IS MADE BY THE JURY AFTER WHAT AGAIN I'M SURE WOULD BE
CROSS-EXAMINATION POINTING OUT EVERY SINGLE REASON WHY THE SKRUR SHOULD NOT FIND HER
TESTIMONY CREDIBLE OR FIND THE VIDEO CREDIBLE BECAUSE OF HER LACK OF MEMORY ON WHAT
OCCURRED ON THOSE OTHER INSTANCES. THAT'S FOR THE JURY. ANNETTE VERDESCO:
THAT IS CORRECT. BUT THE DIFFERENCE IS, WITH A NORMAL WITNESS, YOU'RE ABLE TO --
JUSTICE PIERRE-LOUIS: A NORMAL WITNESS CAN SAY I DON'T REMEMBER. I DON'T REMEMBER TO
A DOZEN QUESTIONS. ANNETTE VERDESCO: BUT RESPECTFULLY NOT TO ALL THE ALLEGATIONS.
JUSTICE WAINER-APTER: WHY NOT? THIS COURT'S HOLDING IN SIMS, I THOUGHT WHAT
HAPPENED THERE WAS THAT AT THE WADE HENDERSON HEARING, P B TESTIFIED HE RECALLED ABSOLUTELY
NOTHING ABOUT THE SHOOTING OR THE STATEMENT MADE TO THE POLICE AND THE COURT STILL SAID
SUCCESSFUL EXAMINATION READING READING IN WHATEVER WAY TO WHATEVER EXTENT THE. HERE
THE PERSON SAYS, I DON'T RECALL, I DON'T REMEMBER, I DON'T RECALL, I REMEMBER NOTHING.
AND THIS COURT STILL SAYS, NO CONFRONTATION CLAUSE VIOLATION. NO PROBLEM.
ANNETTE VERDESCO: BUT I BELIEVE THAT SIMS, THE WITNESS THERE HAD A FEIGNED MEMORY. SO
THERE WAS SOME BASIS OF CROSS-EXAMINATION, YOUR HONOR. BECAUSE AT ONE POINT HE MADE ONE
STATEMENT AND THEN AT TRIAL SAYS OR AT THE WADE HEARING SAYS HE COULDN'T RECALL, DID NOT
RECALL. THAT DEALT WITH A FEIGNED MEMORY. IT DID NOT DEAL WITH A WITNESS WITH NO MEMORY.
JUSTICE WAINER-APTER: HE SAID HE HAD NO MEMORY. YOU'RE SAYING THAT THE COURT
FOUND THAT THAT WAS FAKE. CORRECT? ANNETTE VERDESCO: YES. JUSTICE
WAINER-APTER: YOU'RE SAYING IF SOMEONE TESTIFIES THEY HAVE NO MEMORY, IF THE COURT FINDS
IT'S FAKE, THAT'S FINE. BUT IF THE COURT FINDS IT'S NOT FAKE THEN IT'S NEVER OKAY AND
THEIR PRIOR STATEMENTS CANNOT COME IN? ANNETTE VERDESCO: I SAY WHEN YOU'RE
DEALING WITH SOMEONE THAT FEIGNS MEMORY, YOU STILL HAVE AN ABILITY TO CROSS-EXAMINE THAT
PERSON. BECAUSE YOU COULD SAY YOU MADE THIS STATEMENT. NOW YOU CHANGED YOUR POSITION.
IT'S LIKE AN IN-CONSISTENT STATEMENT. WITH A WITNESS WITH NO MEMORY, YOU CAN'T IMPEACH
HER. YOU CAN'T IMPEACH ANY KIND OF INCONSISTENCY OR CONSISTENCY ABOUT THE FACTS.
JUSTICE PIERRE-LOUIS: GOING BACK TO SIMS, IN SIMS, WE NOTED THE CASE IN UNITED STATES
V. OWENS WHERE THE U.S. SUPREME COURT STATED THAT THE CONFRONTATION CLAUSE PROVIDES NO
GUARANTY THAT EVERY WITNESS CALLED BY THE PROSECUTION WILL REFRAINED FROM TESTIMONY BUT
RATHER IS GENERALLY SATISFIED WHEN THE DEFENSE IS GIVEN A FULL AND FAIR OPPORTUNITY TO
PROBE AND EXPOSE THOSE INFIRMITIES THROUGH CROSS-EXAMINATION. IT SOUNDS LIKE YOUR
ARGUMENT IS COMPLETELY COUNTER TO THAT STATEMENT. ANNETTE VERDESCO: WELL,
OWENS -- JUSTICE PIERRE-LOUIS: BECAUSE WE'RE TALKING ABOUT FORGETFULNESS,
CONFUSION, EVASION. A VARIETY OF REASONS WHY A WITNESS MIGHT NOT BE ANSWERING A QUESTION ON CROSS-EXAMINATION AS WONDERFULLY AS THE DEFENSE COUNSEL WOULD LIKE.
WAS AN IDENTIFICATION CASE. AND IF I RECALL CORRECTLY, THE WITNESS WAS ABLE TO RECALL
THAT THE IDENTIFICATION, THE CURRENT BELIEFS, BUT COULD NOT RECALL HOW THEY ARRIVED AT
THAT IDENTIFICATION. ALSO THE WITNESS WAS ABLE TO TESTIFY AS TO THE BASIS -- AND THE
FACTS REGARDING THE ATTACK AGAINST HIM. JUSTICE WAINER-APTER: NO. I THINK
HE ACKNOWLEDGED THAT HE DIDN'T RECALL SEEING THE ATTACKER AND HE COULDN'T RECALL ANY
DISCUSSIONS HE HAD WHILE HOSPITALIZED. THE SECOND STATEMENT. IT SEEMS LIKE YOU'RE TRYING
TO DRAW VERY, VERY FINE DISTINCTIONS AND I THINK THE CHIEF JUSTICE ASKED WHAT IS THE
CONSTITUTIONAL BASIS AND YOU SAID IF THE PERSON CANNOT REMEMBER AT ALL. BUT WE DISCUSSED
ALREADY WHEN THE VICTIM CAN REMEMBER CERTAIN INSTANCES SO WHERE IS THE CONSTITUTIONAL
LINE. ANNETTE VERDESCO: THE CONSTITUTIONAL LINE HAS TO BE WHERE
CROSS-EXAMINATION IS NOT FRUITLESS OR FUTILE. ESPECIALLY WHEN YOU'RE DEALING WITH SPECIFIC
ALLEGATIONS AGAINST A DEFENDANT THAT FORMED THE BASIS OF THE CRIMES CHARGED AGAINST HIM.
THERE IS NO WAY TO CHALLENGE A.R. AS TO HER PRIOR STATEMENT BECAUSE SHE HAS NO MEMORY,
NO RECOLLECTION. YOU CAN'T QUESTION HER AND YOU CAN'T IMPEACH HER. YOU CAN'T QUESTION
HER ABOUT BIAS. JUSTICE PATTERSON: SURE YOU CAN. SHE'S SITTING IN THE COURTROOM
AND SHE IS TELLING THE JURY, I DON'T REMEMBER THIS WHOLE THING AND SHE WAS A CHILD.
SHE'S OBVIOUSLY NOT VERY OLD NOW. BUT SHE WAS A CHILD AT THE TIME. AND THE JURY CAN MAKE
A LOT OF DIFFERENT ASSESSMENTS, AND ONE OF THOSE IS, SOMEBODY SUGGESTED THIS TO THIS CHILD,
THIS REALLY DIDN'T HAPPEN. SHE REMEMBERS THE ONE INCIDENT BUT SHE DOESN'T REMEMBER THESE
OTHER INCIDENCES AND THERE'S A REAL QUESTION CONSIDERED THE STATE'S BURDEN TO PROVE EACH
ALLEGATION BEYOND A REASONABLE DOUBT AS TO WHETHER THOSE ALLEGATIONS CAN BE SUSTAINED
IN LIGHT OF OF THAT. SO WHY IS THAT NOT CROSS-EXAMINATION THAT COULD BE --
IT MAY NOT BE, YOU NEVER KNOW WHAT JURIES ARE THINKING, BUT IT CAN BE EXTREMELY EFFECTIVE
AS I'M SURE YOU COULD MAKE IT. ANNETTE VERDESCO: BUT HOW DO WE RECONCILE
THAT WITH THE APPELLATE DIVISION DECISION IN NYHAMMER THAT HAD STRIKINGLY SIMILAR FACTS
TO THE CASE BEFORE THIS HONORABLE COURT. CHIEF JUSTICE RABNER: THE ATTORNEY
DIDN'T CROSS-EXAMINE IN NYHAMMER. ANNETTE VERDESCO: THAT'S CORRECT. THERE WAS
NO CROSS-EXAMINATION. AND THAT'S WHY THE CASE WAS NOT OVERRULED BY THIS COURT, BECAUSE
THIS COURT RULED THAT THE DEFENDANT WAIVED HIS OPPORTUNITY TO CONFRONTATION.
CHIEF JUSTICE RABNER: SO HOW DOES NYHAMMER HELP YOU? ANNETTE VERDESCO: MY
POSITION IS THE APPELLATE DIVISION CASE IS IS DISTILL GOOD LAW. CHIEF JUSTICE
RABNER: EVEN THOUGH IT WAS NOT ADOPTED BY THE SUPREME COURT? ANNETTE VERDESCO:
MY POSITION IS THE SUPREME COURT DID NOT OVERRULE NYHAMMER IN THEIR OPINION BECAUSE YOU
NEVER GOT TO THE ISSUE. YOU NEVER GOT TO THE ISSUE AS TO WHAT WAS REQUIRED UNDER THE
CONFRONTATION CLAUSE WHEN YOU'RE DEALING WITH A SILENT AND UN-RESPONSIVE WITNESS.
CHIEF JUSTICE RABNER: DID THE COURT AFFIRM OR REVERSE THE JUDGMENT OF THE APPELLATE
DIVISION? ANNETTE VERDESCO: REVERSED. JUSTICE WAINER-APTER: AND
IT HELD THERE WAS NO CONFRONTATION CLAUSE VIOLATION, CONSIDER HE CAN?
ANNETTE VERDESCO: THAT'S CORRECT. BECAUSE THE DEFENDANT WAIVED HIS RIGHT TO CONFRONTATION.
JUSTICE WAINER-APTER: THE COURT NEVER ACTUALLY SAID THE DEFENDANT WAIVED
ANY RIGHT, CORRECT? ANNETTE VERDESCO: I BELIEVE THE COURT DID. THAT'S WHY
IT NEVER GOT TO THE ISSUE AS TO WHAT WAS REQUIRED UNDER THE CONFRONTATION CLAUSE.
JUSTICE PATTERSON: BUT AS DESCRIBED BY THE APPELLATE DIVISION, THE CHILD IN THAT CASE
WAS AN UN-RESPONSIVE -- LARGELY UN-RESPONSIVE WITNESS VERDESCO VERDICT VERDICT THAT'S
CORRECT. JUSTICE PATTERSON: SHE'S NOT SAYING I DON'T REMEMBER THIS. SHE'S
NOT ANSWERING QUESTIONS. RIGHT? SHE WAS -- AT LEAST AS DESCRIBED BY THE APPELLATE DIVISION.
ANNETTE VERDESCO: AS DESCRIBED BY THE APPELLATE DIVISION, THE VICTIM WAS UN-
RESPONSIVE. BUT ISN'T A.R. UN-RESPONSIVE TO THE ALLEGATIONS AT ISSUE? JUSTICE
PATTERSON: A.R. IS TESTIFYING AS TO ALL OF THESE ALLEGATIONS. IN THE TABLE CASE SHE'S
GOING TO TESTIFY AS TO THE ALLEGATION AND HER RECOLLECTION OF THE ALLEGATION. AND IN
THE OTHER THREE INSTANCES, SHE IS GOING TO -- PRESUMABLY, IF SHE TESTIFIES CONSISTENTLY
WITH HER 104 TESTIMONY, SHE'S GOING TO SAY I DON'T REMEMBER IT. I DON'T REMEMBER THAT
EVENT. THAT'S TESTIMONY. JUSTICE WAINER-APTER: AND I THINK THAT'S
SPECIFICALLY COVERED BY THE U.S. SUPREME COURT's DECISION IN OWENS WHERE THEY SPECIFICALLY
SAID A WITNESS IS REGARDED AS SUBJECT TO CROSS-EXAMINATION WHEN THAT WITNESS IS PLACED
ON THE STAND UNDER OATH AND RESPONDS WILLINGLY TO QUESTIONS. SO EVEN IF WE SAID IN NYHAMMER
THAT MAYBE IT WOULD HAVE BEEN A DIFFERENT CASE BECAUSE THERE THE CHILD DID NOT RESPOND
WILLINGLY TO QUESTIONS AND JUST SHOOK HER HEAD NO, HERE EVERYONE CONCEDES THAT THE WITNESS
WILL RESPOND WILLINGLY TO QUESTIONS. CORRECT? PERHAPS NOT IN THE WAY THAT YOU WOULD
LIKE HER TO RESPOND. BUT SHE WILL BE RESPONDING TO QUESTIONS. SHE WILL NOT SIMPLY BE
SHAKING HER HEAD NO OR REMAINING UTTERLY SILENT. ANNETTE VERDESCO: THE ISSUE
I BELIEVE, YOUR HONORS, THAT STILL EXISTS THOUGH IS IS IT MERE OPPORTUNITY TO
CROSS-EXAMINATION AS REQUIRED UNDER THE CONFRONTATION CLAUSE OR IS IT MEANINGFUL
CROSS-EXAMINATION? IF CROSS-EXAMINATION IS GOING TO BE FRUITLESS OR FUTILE, HOW IS A
FUNDAMENTAL RIGHT, A SIXTH AMENDMENT RIGHT, A RIGHT THAT'S GUARANTEED BY THE FEDERAL
CONSTITUTION AND THE NEW JERSEY CONSTITUTION SATISFIED? HOW IS IT SATISFIED?
JUSTICE PATTERSON: SHE'S GOING TO SAY, PRESUMABLY, SHE'S GOING TO SAY TO YOU AT THAT
MOMENT WITH THE JURY WATCHING, I DON'T REMEMBER THAT. JUSTICE MICHAEL NORIEGA:
AND YOU CAN EVEN GO FURTHER THAN THAT, YOU CAN ASK THE QUESTION, ARE YOU MAKING THIS UP?
AND YOU'LL GET AN ANSWER. SO WHERE IS THE DENIAL OF AN OPPORTUNITY TO FULLY HAVE EVERY
QUESTION ANSWERED AND GET AN ANSWER TO IT? ANNETTE VERDESCO: BECAUSE IT APPEARS
THAT YOUR HONORABLE JUSTICES ARE SUGGESTING THAT IT GOES TO CREDIBILITY AS OPPOSED TO
ADMISSIBILITY. THE PROBLEM WITH THIS ISSUE GOING TO CREDIBILITY IS THERE IS NO -- THERE'S
NO OPPORTUNITY TO IMPEACH HER. JUSTICE MICHAEL NORIEGA: BUT YOU'RE NOT
ENTITLED UNDER THE CONSTITUTION TO IMPEACH WITNESSES. YOU'RE SIMPLY ENTITLED TO A FAIR
CROSS-EXAMINATION. ANNETTE VERDESCO: BUT ISN'T THAT WHAT CROSS-EXAMINATION
IS, I AM PEELTSING CREDIBILITY? JUSTICE MICHAEL NORIEGA: NO, NOT SIMPLY.
CHIEF JUSTICE RABNER: COUNSEL, IF YOU'RE CORRECT, WHAT'S LEFT OF THE HEARSAY
EXCEPTION FOR A COURT OF RECOLLECTION, 8035? HOW DOES THAT PASS CONSTITUTIONAL MUSTER?
ANNETTE VERDESCO: NUMBER ONE, YOUR HONORS, I SUBMIT RESPECTFULLY THAT NO
EVIDENCE RULE SHOULD TAKE PREVALENCE OR RELEVANCE OVER A CONSTITUTIONAL FUNDAMENTAL RIGHT.
THAT SHOULDN'T BE PART OF THE ANALYSIS. CHIEF JUSTICE RABNER: YOU'RE CORRECT.
SO IS 803 C-FIVE UN-CONSTITUTIONAL? ANNETTE VERDESCO: NO. 803 C-FIVE WHICH IS
PRESENT RECOLLECTION, RIGHT? CHIEF JUSTICE RABNER: A COURT OF RECOLLECTION.
ANNETTE VERDESCO: YES. I DON'T KNOW HOW THAT IS RELEVANT TO THE ANALYSIS,
BECAUSE ISN'T THAT RULE DEALING WITH REFRESHING RECOLLECTION? CHIEF JUSTICE
RABNER: SO IMAGINE THIS SITUATION. A WITNESS TESTIFIES IN COURT AND HAS AN INSUFFICIENT
PRESENT RECOLLECTION ABOUT THE KEY ALLEGATION. THEY SAY I CAN'T REMEMBER. THE RULE
PERMITS A PRIOR STATEMENT TO BE INTRODUCED UNDER CERTAIN CIRCUMSTANCES. ANNETTE
VERDESCO: THAT'S CORRECT. CHIEF JUSTICE RABNER: HOW DOES THAT SQUARE WITH
YOUR ARGUMENT? COULD THAT HAPPEN IF WE RULE IN YOUR FAVOR? ANNETTE VERDESCO:
YES. AND I'M GOING TO TELL YOU WHY. BECAUSE A.R. WAS SHOWN HER VIDEO STATEMENT. SHE WAS
SHOWN HER VIDEOTAPE TAPE RECORDED STATEMENT PRIOR TO TRIAL AND SHE STILL COULD NOT RECALL.
CHIEF JUSTICE RABNER: ASSUME THE SAME THING HAPPENED IN THE HYPOTHETICAL.
ANNETTE VERDESCO: BECAUSE THERE WOULD BE AN ABILITY TO REFRESH RECOLLECTION.
THAT'S WHAT THE EXCEPTION IS FOR. HERE HER RECOLLECTION COULD NOT BE REFRESHED. THAT'S
THE ISSUE. CHIEF JUSTICE RABNER: THIS IS ABOUT RECORDED RECOLLECTION.
JUSTICE FASCIALE: IT'S NOT REFRESH RECOLLECTION. IT'S PAST RECOLLECTION
RECORDED. WHERE THE STATEMENT ITSELF IS NOT -- THE WRITTEN STATEMENT IS NOT INTRODUCED
INTO EVIDENCE BUT IT'S READ TO THE JURY AFTER THE PREREQUISITES ARE ESTABLISHED UNDER
THE COURT RULE THAT THE CHIEF JUST MENTIONED. IT'S NOT REFRESHING SOMEONE'S RECOLLECTION.
IT'S ADMITTING STATEMENTS UNDER THE PAST RECOLLECTION RECORDED EXCEPTION TO THE
HEARSAY RULE. SO THE CHIEF'S QUESTION, IF WE GO ALONG WITH WHAT YOU'RE SAYING,
WHAT DOES THAT LEAD TO THE PAST RECOLLECTION RECORDED RECOLLECTION TO THE HEARSAY RULE
AS THE STATE POINTED OUT IN ITS SUPPLEMENTAL BRIEF? ANNETTE VERDESCO: WELL,
I DON'T KNOW THAT THAT RULE APPLIES IN SITUATIONS WHERE YOU'RE DEALING WITH A TENDER YEARS
EXCEPTION. HERE IT'S THE TENDER YEARS EXCEPTION. OKAY? JUSTICE SOLOMON:
SO WHAT? IT'S A PAST RECOLLECTION RECORDED THAT COMES IN UNDER CERTAIN STANDARDS AND
CRITERIA. AND YOU'RE ARGUING THAT THAT'S A VIOLATION OF THE CONFRONTATION CLAUSE. EVEN
THOUGH THE CASES SAY IT'S NOT SINCE THE PERSON'S PRESENT AND CAN BE CROSS-EXAMINED.
ANNETTE VERDESCO: IF THE WITNESS HAS -- IT DEPENDS UPON WHAT'S CONTAINED IN
THE STATEMENT. CHIEF JUSTICE, WAS YOUR HYPOTHETICAL THAT IT'S A VICTIM's RECORDED
STATEMENT, AS IN THIS SITUATION THAT GO TO THE SUBSTANTIVE CHARGES AGAINST THE DEFENDANT.
CHIEF JUSTICE RABNER: YES. I THINK YOUR ARGUMENT MIGHT HAVE TO BE, LOOK,
THE TENDER YEARS EXCEPTION IS UN-CONSTITUTIONAL UNDER THIS SCENARIO THAT'S BEING PRESENTED
AND THE SAME IS TRUE FOR THE OTHER HEARSAY EXCEPTION FOR RECORDED RECOLLECTION. I DON'T
KNOW HOW YOU SLICE THE TWO. AND THAT'S WHY I'M ASKING. ANNETTE VERDESCO:
WELL, AS I PREVIOUSLY STATED, I DON'T KNOW THAT AN EVIDENCE RULE CAN SURVIVE OR HAVE MORE
RELEVANCE BEYOND THE CONSTITUTIONAL RIGHT ESPECIALLY A RIGHT TO CONFRONTATION THAT GOES
TO THE CORE OF THE ADVERSARIAL PROCESS. CHIEF JUSTICE RABNER: DOES THAT MEAN
YOU BELIEVE THAT THE RECORDED RECOLLECTION EXCEPTION IN CERTAIN CIRCUMSTANCES WOULD
LIKEWISE BE UN-CONSTITUTIONAL? ANNETTE VERDESCO: ABSOLUTELY. JUSTICE
WAINER-APTER: DO YOU HAVE CASES SUPPORTING THAT? ANNETTE VERDESCO: NO, NOT.
NOT BEFORE THIS COURT. JUSTICE WAINER-APTER: EVEN IN OTHER JURISDICTIONS?
ANNETTE VERDESCO: NO, I DO NOT, YOUR HONOR. MAY I CONTINUE?
CHIEF JUSTICE RABNER: OF COURSE. ANNETTE VERDESCO: IN CONCLUSION,
I SUBMIT TO THIS COURT THAT THE APPELLATE DIVISION's ANALYSIS AND RATIONAL WAS FLAWED
IN THE RELIANCE UPON CERTAIN CASES, AS WE DISCUSSED AND DISTINGUISHED DURING YOUR
HONOR's QUESTION TO ME. AND THAT A CONFRONTATION CLAUSE REQUIRES MORE THAN A WITNESS's
MERE PRESENCE ON THE STAND OR AN OPPORTUNITY TO CROSS-EXAMINATION. IT REQUIRES, AND
ESPECIALLY WHEN YOU'RE DEALING WITH MATERIAL FACTS THAT GO TO THE BASIS OF THE CHARGES
OF THE DEFENDANT, IT REQUIRES MEANINGFUL AND SUFFICIENT CROSS-EXAMINATION. IN
THIS CASE, A.R. CANNOT BE CHALLENGED -- JUSTICE PATTERSON: WHAT IS IS SUFFICIENT
CROSS-EXAMINATION? DOES THAT MEAN SUCCESSFUL CROSS-EXAMINATION? ANNETTE
VERDESCO: NO, NO. IT MEANS THE ABILITY TO CROSS BASED UPON THE PERCEPTION OF THE EVENTS.
IT MEANS THE ABILITY TO CROSS AND MAYBE TRYING TO SHOW THAT THE ALLEGATIONS WERE SUGGESTED
BY OTHERS. IT MEANS MAYBE BEING ABLE TO TRY AND SHOW BIAS. LACK OF ATTENTION. UN-DUE
HASTE IN RE-COUNTING EVENTS. IN-CONSISTENT TESTIMONY. THAT IS WHAT I'M SUGGESTING IS
MEANINGFUL CROSS-EXAMINATION. NOT A WITNESS JUST BEING PHYSICALLY PRESENT ON THE STAND.
A.R. WILL BE PHYSICALLY PRESENT, BUT SHE'S NOT GOING TO BE MENTALLY PRESENT AS IT RELATES
TO THESE ALLEGATIONS. SO I RESPECTFULLY SUBMIT -- JUSTICE
PATTERSON: SHE WILL TESTIFY ABOUT THOSE ALLEGATIONS? ANNETTE VERDESCO:
AND HER ANSWER IS GOING TO BE I DON'T KNOW. JUSTICE PATTERSON: THERE ARE WITNESSES
OUT THERE WHO JUST WON'T RESPOND, THEY WILL NOT ACKNOWLEDGE THE QUESTION. SHE'S GOING
TO ANSWER, PRESUMABLY, EVERY SINGLE QUESTION AS SHE DID IN THE 104 HEARING.
ANNETTE VERDESCO: I UNDERSTAND THAT, YOUR HONORS. BUT I'M SAYING THAT'S STILL NOT ENOUGH
AND FOR ALL THOSE REASONS I RESPECTFULLY REQUEST YOUR HONORS TO REVERSE THE APPELLATE DIVISION
DECISION AND RE-AFFIRM THE TRIAL COURT THAT DIRECTS THE REDACTION OF A.R.'S VIDEO
STATEMENT TO ONLY THE ALLEGATIONS SHE CAN RECALL. CHIEF JUSTICE RABNER: THANK YOU,
MS. VERDESCO. MS. HEFFRON? CLAUDE CAROLINE HEFFRON: MAY IT PLEASE
THE COURT. MR. HARRELL IS ENTITLED TO A TRIAL IN WHICH ONLY ADMISSIBLE EVIDENCE IS PRESENTED.
AT A TRIAL IN WHICH HE IS ABLE TO EFFECTIVELY CROSS CAM THE PRINCIPAL WITNESS AGAINST
HIM AS TO THE CORE ACCUSATIONS IN THE CASE. BECAUSE OF THE 33-MONTH DELAY IN CHARGING
MR. HARRELL, COMPOUNDED BY THE FACTS THAT ALL FOUR INCIDENTS ARE CHARGED COLLECTIVELY
AS TWO DIFFERENT COUNTS OF THE INDICTMENT, AT THE TIME OF TRIAL, A.R. IS NOT ABLE TO RE-
COUNT 3 OUT OF THE FOUR INCIDENTS ALLEGED AGAINST MR. HARRELL. THE TRIAL COURT'S DECISION
TO REDACT REFERENCES TO THE THREE FORGOTTEN INCIDENTS IS THE ONLY WAY TO ENSURE
COMPLIANCE WITH THE RULES OF EVIDENCE AS WELL AS THE CONFRONTATION CLAUSE AND FOR THAT
REASON WE ARE ASKING THAT THE COURT REVERSE THE DECISION OF THE APPELLATE DIVISION AND
RE-STORE THE WELL-REASONED DECISION OF THE TRIAL COURT. LIKE MY COLLEAGUE, I AM GOING
TO ATTEMPT TO DISCUSS BRIEFLY FIRST THE EVIDENTIARY RULES AND THEN MOVE ON TO THE
CONFRONTATION CLAUSE ISSUES SUBJECT TO THIS COURT'S QUESTIONS OF COURSE. BUT
STARTING WITH THE RULE UNDER THE TENDER YEARS EXCEPTION, I DO WANT TO TAKE A SLIGHTLY
DIFFERENT POSITION, WHICH IS THAT THE TENDER YEARS EXCEPTION, 80327 SUBSECTION C REQUIRES
THAT A.R. BE PRESENT AND TESTIFY. AND I WOULD SUBMIT THAT TESTIFYING IS NOT JUST BEING
IN A CHAIR. IT'S NOT ANSWERING QUESTIONS ABOUT THE LAYOUT OF THE ROOM. IT IS PRESENTING
EVIDENCE AS TO THE CORE ACCUSATION IN'S THE CASE AND I SAY THAT IN RELIANCE ON DICTIONARY
DEFINITIONS OF THE WORD TESTIFY WHICH REFER TO IT IN FACT AS PRESENTING EVIDENCE.
JUSTICE PATTERSON: IF SHE SAYS I DON'T REMEMBER THAT, THAT'S NOT TESTIMONY? CLAUDE CAROLINE
HEFFRON: THAT'S OUR POSITION. JUSTICE PATTERSON: YOU'RE SAYING THAT'S NOT
TESTIMONY? CLAUDE CAROLINE HEFFRON: I WOULD SAY, ONE, IT'S NOT TESTIFY AND TWO IT'S
UN-LIKELY TO BE RESPONSIVE TO A QUESTION ASKED ON CROSS-EXAMINATION. JUSTICE
PATTERSON: COUNSEL WILL PRESUMABLY ASK HER LEADING QUESTIONS WITH RESPECT TO THOSE
INCIDENTS AND SHE PRESUMABLY WILL SAY I DON'T REMEMBER. I'M SORRY. I DON'T REMEMBER.
THAT'S NOT TESTIMONY? CLAUDE CAROLINE HEFFRON: TESTIMONY IS PRESENTING EVIDENCE
FROM THE CORE ALLEGATIONS. JUSTICE PATTERSON: SO WHEN A WITNESS IS ASKED ABOUT
TEN DIFFERENT INCIDENTS AND ONE OF THEM SAYS, I'M SORRY, THAT ONE I DON'T REMEMBER, THAT
DOESN'T COUNT AS TESTIFY TESTIMONY? CLAUDE CAROLINE HEFFRON: WE WOULD SUBMIT
IT'S NOT TESTIMONY IN THE WAY THAT THE RULE REQUIRES. AND I WOULD NOTE THE RULE
SPECIFICALLY REQUIRES TESTIMONY, KNOWING OF COURSE WE ALSO HAVE THE CONFRONTATION CLAUSE
AND I WOULD SUBMIT THAT 803C-27 SORT OF IMPOSES A CONFRONTATION KIND OF ANALYSIS.
JUSTICE PATTERSON: LET'S FOCUS -- I'M SORRY. JUSTICE PIERRE-LOUIS: SO IF
A WITNESS IS TESTIFYING AND ANSWERING HUNDREDS OF QUESTIONS WHILE ON THE STAND, WE ARE
TO PARSE THROUGH EVERY SINGLE ANSWER WHERE THAT WITNESS SAYS I DO NOT RECALL AND TOSS
IT ASIDE. THAT'S NOT TESTIMONY. I'M TRYING TO UNDERSTAND PRACTICALLY, WHAT DOES THAT
MEAN. BECAUSE I THINK WE WOULD ALL AGREE DURING THE COURSE OF A TRIAL, WITNESSES WILL
RESPOND I DON'T RECALL, I DON'T REMEMBER. SO WHAT PRACTICALLY DOES THIS MEAN FOR A WITNESS
TESTIFYING WHO IS ANSWERING HUNDREDS IF NOT THOUSANDS OF QUESTIONS? CLAUDE
CAROLINE HEFFRON: SO THE DISTINCTION I'M MAKING IS REALLY FOCUSING ON THESE CORE ACCUSATIONS
BECAUSE BUSINESS THE LANGUAGE THAT THIS COURT USED IN STATE VERSUS NYHAMMER AND IT
SPECIFICALLY SAID THAT HAD COUNSEL CONFRONTED AMANDA ON HER CLAIMS AND HAD SHE REMAINED
SILENT, THEN WE WOULD HAVE ON THE RECORD WHETHER HER SILENCE OR UN-RESPONSIVENESS DENIED
DEFENDANT HIS CONSTITUTIONAL RIGHT OF CONFRONTATION. JUSTICE
WAINER-APTER: THE DEFENSE ATTORNEY DIDN'T THINK HER ANSWER WAS RESPONSIVE. IT MEANT THAT
SHE SAT AND DID NOT SAY ANYTHING. SHE DID NOT SPEAK. SHE JUST SHOOK HER HEAD NO. FROM
HERE -- IN THE RULE 104 TESTIMONY HERE, A.R. WAS IN NO WAY UN-RESPONSIVE. SHE RESPONDED
TO EVERY SINGLE QUESTION. SO I'M JUST NOT SURE HOW NYHAMMER, EVEN THAT STATEMENT FROM
THE COURT, YOU KNOW, THERE COULD BE AN ISSUE IF A WITNESS IS COMPLETELY UN-RESPONSIVE
AND COMPLETELY SLIEFRNT, HOW DOES THAT HELP YOU? CLAUDE CAROLINE HEFFRON:
I THINK THAT HELPS IN SO FAR AS -- I UNDERSTAND THE DISTINCTION YOU'RE DRAWING.
UN-RESPONSIVE IN THE SENSE OF NOT ANSWERING THE QUESTION VERSUS NOT RESPONSIVE TO A LEADING
QUESTION THAT USUALLY REQUIRES A YES OR NO ANSWER. I UNDERSTAND THAT'S A DISTINCTION.
HOWEVER, IN NYHAMMER -- I THINK THAT BRINGS US IN FACT A LITTLE BIT TO CODER BECAUSE IN
CODER THE CHILD ALSO WAS ANSWERING QUESTIONS. SHE JUST DID NOT HAVE THE ANSWERS IF SO FAR
SHE DIDN'T RECALL THE INFORMATION. BUT IT WASN'T THAT SHE WAS SILENT. SHE D SHE CAME
IN. SHE GAVE TESTIMONY. JUSTICE WAINER-APTER: SHE DIDN'T TESTIFY AT TRIAL,
CORRECT? CLAUDE CAROLINE HEFFRON: SHE TESTIFIED AT THE TENDER YEARS HEARING.
EVEN THOUGH SHE GAVE ANSWERS YES OR NO, MOSTLY NO THAT SHE DID NOT RECALL, SHE WAS CONSIDERED
UN-RESPONSIVE IN THAT CONTEXT TO THE QUESTIONS, BECAUSE SHE WASN'T ABLE TO SPEAK ABOUT
THE ACCUSATION IN'S THE CASE. CHIEF JUSTICE RABNER: CAN WE GO BACK TO NYHAMMER
FOR JUST A MOMENT. THERE'S THE LANGUAGE THAT YOU QUOTED I THINK BEARS CAREFUL ATTENTION.
IT'S HAD SHE REMAINED COMPLETELY SILENT OR UN-RESPONSIVE, THEN WE WOULD HAVE A RECORD
ON WHICH TO DECIDE WHETHER SHE WAS DENIED THE CONSTITUTIONAL RIGHT TO CONFRONTATION.
DO YOU TAKE THAT TO MEAN THAT THE COURT WOULD HAVE RULED A PARTICULAR WAY? THE PLAIN
LANGUAGE SEEMS TO SUGGEST THE COURT HADN'T DECIDED. CLAUDE CAROLINE HEFFRON:
I AGREE WITH YOUR INTERPRETATION, YOUR HONOR. I THINK IT LEFT IT OPEN. CHIEF
JUSTICE RABNER: AND HERE WE ARE. CLAUDE CAROLINE HEFFRON: HERE WE ARE.
THAT'S WHY WE'RE HERE. I THINK IT LEFT IT OPEN AND THIS IS WHY I CAN SAY THAT I'M STARTING
WITH THE RULES OF EVIDENCE BUT HERE WE ARE GOING INTO THE CONFRONTATION CLAUSE BECAUSE
IT'S ALL INTERTWINED. I THINK THE REASON IT'S SO INTERTWINED IS BECAUSE HOUR CASE LAW
HAS NEVER SAID UNDER THE CONFRONTATION CLAUSE YOU HAVE A PER SE DENIAL OF THE RIGHT TO
CONFRONT SOMEONE WHEN THEY FORGET. BUT YOUR CONFRONTATION RIGHTS ARE BEING PROTECTED
EITHER -- JUSTICE PATTERSON: WHAT DID YOU MEAN A PER SE DENIAL? CLAUDE
CAROLINE HEFFRON: SO WHEN SOMEBODY, AS IN OWENS OR FENSTERER GETS UP AND SAYS I DON'T
RECALL, THAT DOESN'T MEAN PER SE IN EVERY CASE WHERE SOMEONE DOESN'T RECALL THAT THE
DEFENDANT'S RIGHT TO CONFRONT THE WITNESSES HAS BEEN EVISCERATED. JUSTICE
PATTERSON: IN OWENS, THE COURT FOUND THAT THE DEFENDANT'S CONFRONTATION RIGHTS WERE
PROTECTED. CLAUDE CAROLINE HEFFRON: I AGREE. BUT OWENS DIDN'T LEAD TO THE
CONCLUSION THAT THE CONVERSE, WHICH IS THAT EVERY TIME A WITNESS SAYS I DON'T REMEMBER
THAT IS CONSTITUTIONAL UNDER THE CONFRONTATION CLAUSE. JUSTICE WAINER-APTER:
I'M NOT SURE IF THAT'S TRUE. OWENS SPECIFICALLY SAYS A WITNESS IS REGARDED AS SUBJECT
TO CROSS-EXAMINATION WHEN THAT WITNESS IS PLACED ON THE STAND UNDER OATH AND RESPONDS
WILLINGLY TO QUESTIONS. HERE IT SEEMS LIKE THERE IS NO QUESTION THAT A.R. WOULD RESPOND
WILLINGLY TO QUESTIONS. AGAIN, IT MIGHT NOT BE THE RESPONSE THAT YOU WOULD PREFER IT
TO BE, BUT I THINK EVERYONE ACKNOWLEDGES THAT A.R. WILL RESPOND WILLINGLY TO QUESTIONS.
AND THAT IS THE TEST IN OWENS CHLTS. CLAUDE CAROLINE HEFFRON: I DON'T THINK
SHE WOULD RESPOND IN THE SENSE OF BEING RESPONSIVE TO LEADING QUESTIONS. HE TOUCHED
HUR BUTTOCKS. I DON'T REMEMBER. I WOULD CONSIDER THAT NON-RESPONSIVE. JUSTICE
WAINER-APTER: BUT, AGAIN, THERE'S NOTHING IN OWENS THAT INDICATES THAT BECAUSE IN OWENS
HE SAID I DON'T REMEMBER AND IT WAS STILL THAT HE WAS SUBJECT TO CROSS-EXAMINATION BECAUSE
HE WAS PLACED ON THE STAND AND RESPONDED WILLINGLY TO QUESTIONS. CLAUDE
CAROLINE HEFFRON: WELL, OWENS REQUIRES YOU BE SUBJECTED TO EFFECTIVE CROSS-EXAMINATION.
OWENS REQUIRES THAT A WITNESS BE SUBJECTED TO EFFECTIVE CROSS-EXAMINATION. THAT'S THE
QUALIFIER USED IN THAT CASE. JUSTICE WAINER-APTER: AN OPPORTUNITY FOR EFFECTIVE
CROSS-EXAMINATION. CLAUDE CAROLINE HEFFRON: YES. THERE ARE OTHER CASES THAT
USE THE WORD ADEQUATE. AND MEANINGFUL I BELIEVE IS THE DOUGLAS V. ALABAMA TERM. THERE'S
ALSO SOME SORT OF QUALIFIER IN FRONT OF CROSS-EXAMINATION. I THINK TO GO TO OWE
WHENCE, WE NEED TO PROBE DEEPER. BECAUSE IN OWENS THERE'S A MASSIVE RELIANCE ON FENSTERER
WHICH IS AN EXTREMELY FACT SPECIFIC SITUATION. IN FENSTERER WHERE YOU HAVE A WITNESS
WHO IS AN EXPERT TESTIFYING THAT THEY DON'T RECALL THE BASIS FOR THE CONCLUSION THAT THEY
MADE. THE COURT DEEMS -- I THINK THE WORD THEY USED IS SELF IMPEACHING. THAT IS A FAR
CRY FROM A LAY WITNESS WHO CAN'T REMEMBER THE BASIS FOR -- JUSTICE PATTERSON:
WHY ISN'T THAT TREMENDOUSLY IMPEACHING, NOT NECESSARILY OF HER HONESTY OR VORACITY, BUT
IT IS POTENTIALLY EXTREMELY EFFECTIVE CROSS-EXAMINATION TO ASK HER DO YOU REMEMBER
AND FILL IN THE FACTS AND SHE SAYS I DON'T REMEMBER IN FRONT OF THE JURY. SAYING I DO
NOT REMEMBER THAT. THAT IS -- WHY ISN'T THAT TREMENDOUSLY IMPEACHING WITH RESPECT TO
THE -- TO HER ABILITY TO SUSTAIN THE STATE'S CHARGES IN THAT INSTANCE? CLAUDE
CAROLINE HEFFRON: IT'S NOT EFFECTIVE IN THE CONSTITUTIONAL SENSE, I WOULD SUBMIT, BECAUSE
-- AND I WOULD DRAW THE COURT'S ATTENTION TO THE DISSENT IN OWENS. I REALIZE IT'S A DISSENT.
HOWEVER I THINK IT'S IMPORTANT TO LOOK AT. WHAT THE DISSENT REALLY HIGHLIGHTS THERE,
JUSTICE BRENNAN POINTS TO THE FACTS THAT FENSTERER IS VERY FACT SPECIFIC AND THAT THE
COURT HAD NEVER HELD BEFORE THAT THAT A MERE OPPORTUNITY TO POSE QUESTIONS -- AND THIS IS
A QUOTE. WE HAVE NEVER UNTIL TODAY EQUATED EFFECTIVELINESS WITH THE MERE OPPORTUNITY
TO POSE QUESTIONS. THE TOUCH TONE OF EFFECTIVENESS IS WHETHER THE
CROSS-EXAMINATION AFFORDS THE TRIER OF FACT A SATISFACTORY BASIS FOR EVALUATING THE TRUTH
OF THE PRIOR STATEMENT. AND WHAT WE'RE GOING TO HAVE HERE IS A VIDEOTAPE STATEMENT
OF A YOUNG, INNOCENT EIGHT YEAR OLD CHILD UN-CONTEST PD. YES, SHE DOESN'T REMEMBER IT
NOW, BUT YOU CAN'T PROBE WHY THAT STATEMENT WHICH WAS TAKEN UNDER OPTIMAL CIRCUMSTANCES,
WHERE THEY HAD THE CHILD MEET THE PERSON BEFORE THEY WALKED INTO THE ROOM. HE WARMS HER
UP. AND THAT'S FINE. THEY'RE ALLOWED TO DO THAT. I'M NOT SAYING IT'S BAD INTERVIEW
TECHNIQUES BUT I'M SAYING WHEN THE STATE GETS TO ASK THE WITNESS QUESTIONS UNDER --
JUSTICE PATTERSON: ARE YOU SUGGESTING THE COURT SHOULD NOT FOLLOW OWENS? CLAUDE
CAROLINE HEFFRON: I'M SUGGESTING THAT OWENS REQUIRE EFFECTIVE CROSS-EXAMINATION AND THAT
THAT IS NOT WHAT CAN BE DONE HERE. AND IN OWENS THERE WERE NUMEROUS -- JUSTICE
PATTERSON: DEFINED IT AS WILLINGLY RESPONDED TO QUESTIONS. CLAUDE CAROLINE
HEFFRON: ALSO ON THE FACTS OF OWENS, IT FOUND THAT A PERSON -- THERE ARE AREAS OF
CROSS-EXAMINATION THAT ARE MULCH MORE ROBUST THAN WHAT WE HAVE HERE BECAUSE WE HAVE THE
PREVIOUS IDENTIFICATION, WE HAVE REFERENCES IN THE MEDICAL RECORDS. I THINK ON THE FACTS
OF OWENS, THERE ARE OTHER AREAS OF CROSS-EXAMINATION THAT ARE FRUITFUL.
JUSTICE PATTERSON: AND HERE WE HAVE ONE INCIDENT THAT SHE SAYS SHE REMEMBERS. AND
SHE CAN BE THOROUGHLY CROSS-EXAMINED AS TO WHETHER SOMEONE SUGGESTED THAT TO HER, AS TO
HER INCONSISTENCY AMONG THE DIFFERENT STATEMENTS THAT SHE MADE. SHE CAN BE CROSSED IN
A WAY THAT SUGGESTS THAT NOT NECESSARILY THAT SHE WAS LYING THAT THE SITUATION WAS OVER
WHELMING WITH ADULTS SUGGESTING SOMETHING HAPPENED TO HER. AND HER TESTIMONY CAN BE
SIGNIFICANTLY UNDERMINED THROUGH THAT PROCESS. CLAUDE CAROLINE HEFFRON: I THINK
THE CONVERSE IS ALSO TRUE, WHICH IS I THINK WHAT MY COLLEAGUE WAS ALLUDING TO, WHICH IS
THAT THE TESTIMONY CAN BE SIGNIFICANTLY BOLSTERED BECAUSE WHAT THIS JURY IS GOING TO SEE
IS VIDEOTAPE AND WE KNOW VIDEOTAPE IS EXTREMELY POWERFUL. YOU'RE GOING TO SEE THE IMAGE
OF THE CHILD TELLING THE STORY. BY THE TIME THIS RETURNS TO TRIAL IT WILL BE PROBABLY
AT LEAST EIGHT YEARS AGO AND YOU'RE GOING TO SEE THE CHILD COMING IN TODAY. AND THE TRIAL
COURT HAS ALREADY FOUND THAT THE PRESENT TESTIMONY IS CREDIBLE. SO I THINK WHAT
YOU'RE GOING TO HAVE IS A JURY SAYING I DON'T HAVE ANYTHING TO COMPARE THE PRIOR STATEMENT
TO BUT SHE MADE THE PRIOR STATEMENT AND SHE'S A CREDIBLE WITNESS TODAY SO THAT MUST MEAN
SHE WAS CREDIBLE THEN. AND EVEN AS TO THESE OTHER THREE ALLEGATIONS, ALL CONTAINED WITHIN
THE SAME COUNT OF THE INDICTMENT, BUT THEY'RE SORT OF EFFECTIVELY FUNCTIONING AT THIS
POINT BIKE 404B. THE STATE REALLY ISN'T PURSUING THEM IN THE PRESENT TIME IN THE SENSE
SHE CAN'T GIVE TESTIMONY ON THE STAND TODAY ABOUT THREE OF THE INCIDENTS. SO THEY'RE
GOING -- I THINK THAT'S A CONCERN THAT THE JURY'S GOING TO MAKE THE CONCLUSION --
JUSTICE PATTERSON: I'M SORRY. I THOUGHT THEY WERE PURSUING ALL FOUR CHARGES.
CLAUDE CAROLINE HEFFRON: THEY ARE BUT I'M SAYING IT'S AKIN TO THAT. THEY'RE ALL IN ONE
COUNT. JUSTICE PATTERSON: IN 404B, THAT'S UN-CHARGED BAD ACTS. THIS IS CHARGE
D BAD ACTS. CLAUDE CAROLINE HEFFRON: BUT IT'S EFFECTIVELY NOT CORROBORATE
D. WHAT YOU HAVE IS FOUR ACTS, ALL CHARGED AS TWO DIFFERENT OFFENSES AND THEY'RE CHARGED
COLLECTIVELY AND WHAT THAT DOES HERE IS IT GIVES THE STATE THE OPPORTUNITY TO SAY, WELL,
THIS IS -- YOU DON'T GET A WITNESS WHO REMEMBERS EVERYTHING. THERE MAY BE WITNESSES WHO
FORGET SOME THINGS. BUT IT'S NOT JUST SOME THINGS. IT'S NOT JUST WAS MR. HARRELL's
CLASSROOM NEXT TO MR. SMITH's. JUSTICE PATTERSON: THAT'S ALL GOING TO BE
BEFORE THE JURY. THOSE VERY POINTS I WOULD EXPECT TO BE MADE EFFECTIVELY AS YOU JUST MADE
THEM IN CLOSING AND THIS MAY MAKE THEIR CASE SHAKY. CLAUDE CAROLINE HEFFRON:
BUT I THINK IT LENDS ITSELF TO THE JURY DRAWING CONCLUSIONS THAT ARE SPECULATIVE AND IT
LENDS ITSELF TO THE JURY REALLY LOOKING AT PROPENSITY. DOES SHE SEEM HONEST? OKAY.
SHE MUST HAVE BEEN TELLING THE TRUTH THEN. RATHER THAN ACTUALLY AS WE SHOULD BE
MEASURING THIS, CAN -- DO WE HAVE A SATISFACTORY BASIS FOR EVALUATING THE TRUTH OF THE
PRIOR STATEMENT. THAT SHE GAVE UNDER OPTIMAL STOISHGS THE STATE. JUSTICE
PATTERSON: YOU'RE HERE AS AMICUS. DO YOU SEE THE ISSUE WITH THE BREADTH OF THE RULE THAT
YOUR COLLEAGUE IS SUGGESTING. YOU MAY HAVE A WITNESS, AS JUSTICE PIERRE-LOUIS WAS TALKING
ABOUT, WHO TESTIFIES ABOUT 99 COUNTS AND CAN'T REMEMBER THE HUNDREDTH. CLAUDE
CAROLINE HEFFRON: DO I SEE THE ISSUE? JUSTICE PATTERSON: DO YOU SEE THE
ISSUE WITH -- CLAUDE CAROLINE HEFFRON: I SEE THAT THESE ARE CHALLENGING QUESTIONS
THAT I'M ENDEAVORING TO ANSWER AS BEST I CAN. JUSTICE PATTERSON: I DON'T RECALL
SUDDENLY UNDERMINES THE ADMISSIBILITY OF THE ENTIRE STATEMENT. CLAUDE CAROLINE
HEFFRON: RIGHT. IF I MAY, AND I DO THINK THIS IS GOING TO GET ME TO THE ANSWER BUT I AM
GOING TO BE SLIGHTLY CIRCUITOUS IF I MAY. IN OWENS AND SIMS, WE HAVE TWO SITUATIONS OF
FEIGNED LACK OF RECOLLECTION, WHICH I THINK IS EXTREMELY DIFFERENT. BECAUSE I AM WHAT
YOU'RE SEEING THERE IS ALMOST YOU DON'T GET TO COMMIT AN OFFENSE WHERE YOU DAMAGE SOMEONE'S
MEMORY PHYSICALLY IN OWENS, RIGHT, AND THEN GET THE BENEFIT OF THEM NOT REMEMBERING.
WE ALMOST HAVE SOMETHING CLOSE TO FORFEITURE. WE HAVE A CHILD WHO GENUINELY CANNOT REMEMBER.
I DON'T BEGRUDGE THE CHILD WITNESSES BUT WE ALSO HAVE A SCENARIO WHERE THE STATE HAS WAIT
ED ALMOST THREE YEARS TO EVEN INDICT MR. HARRELL FOR REASONS THAT HAVE NOT BEEN EXPLAINED
IN THE RECORD. NMS THREE YEARS. KNOWING WE HAVE THIS RULE BECAUSE CHILDREN HAVE FALLIBLE
MEMORIES. THERE'S NO EXPLANATION FOR THAT. THEN WE HAVE THE STATE CHARGING THIS AS TWO
OFFENSES BUT REALLY AS ONE ACT, THESE FOUR INCIDENTS AS ONE ACT. SO THEY CAN GET UP
HERE AND SAY, WELL, SHE DOES REMEMBER SOME OF THAT. AND THAT CAN'T GIVE THEM AN ADVANTAGE.
JUSTICE PATTERSON: BUT THERE WAS NO SUGGESTION THE STATE CREATED THE LACK
OF MEMORY. CLAUDE CAROLINE HEFFRON: I'M NOT SUGGESTING THAT, NO.
JUSTICE PATTERSON: I DON'T THINK EITHER THE CONFRONTATION CLAUSE OR THE EVIDENCE RULE RE-
LIES -- ASKS US TO LOOK AT THE PROMPTNESS OF THE INDICTMENT OR THE WAY THE STATE CHOSE
TO CHARGE HIM. THOSE FACTORS ARE NOWHERE IN THE ANALYSIS. CLAUDE CAROLINE
HEFFRON: THEY'RE IN THE ANALYSIS INSOFAR AS -- AND I WON'T RE-HASH THIS -- BUT IN THE
FUNDAMENTAL FAIRNESS SECTION, SOMETIMES THERE IS A DUE PROCESS PROBLEM WHEN THERE IS SUCH
A DELAY. JUSTICE PATTERSON: AT LEAST AT THIS MOMENT, FOCUS ON THE TENDER
YEARS EXCEPTION AND THE CONFRONTATION CLAUSE. CLAUDE CAROLINE HEFFRON: I
RAISE THESE BECAUSE THE COURT'S CERTIFIED QUESTION WAS BEGIN WITH THE PHRASE UNDER THE
CIRCUMSTANCES. UNDER THESE CIRCUMSTANCES, LOOKING AT THESE FACTS ON THIS CASE, THE FACT
THAT THIS CHILD CAN ONLY REMEMBER ONE INCIDENT AND FAILS TO REMEMBER 100 PERCENT OF THREE
OTHER INCIDENTS LEADS TO OR SHOULD LEAD TO WHAT THE TRIAL COURT DID HERE. IT DOESN'T
MEAN THEY CAN'T PROCEED ON THE UNDER THE TABLE INCIDENT. WE'VE ALL CONCEDED THAT. AND
THEY SHOULD BE ABLE TO DO SO. HOWEVER, THE WITNESS -- CHIEF JUSTICE RABNER:
WE HAVE A CONSTITUTIONAL ISSUE HERE AND YOU'VE LAID IT OUT VERY NICELY IN YOUR PRESENTATION
SO FAR. I WANT YOU TO SPEAK TO WHAT YOU DO IN YOUR BRIEF, THE RECORD RD RECOLLECTION
HEARSAY EXCEPTION. DOES THAT SURVIVE CONSTITUTIONAL SCRUTINY? CLAUDE
CAROLINE HEFFRON: IT MAY AND IT MAY NOT. I THINK IN THIS CIRCUMSTANCE, I DO THINK THERE IS
A CONFRONTATION -- THE ONLY THING I WOULD SAY ON THAT IS THAT DOESN'T MEAN WE SHOULD SAY,
WELL, TOMATO, TOE MAT TOE, TENDER YEARS, RECORDED RECOLLECTION, BECAUSE THEY DO COME IN
DIFFERENT MANORS. CHIEF JUSTICE RABNER: BUT WE SHOULD UNDERSTAND THE SCOPE
AND THE ARGUMENT THAT'S BEING MADE. CLAUDE CAROLINE HEFFRON: YES. I DO AGREE
UNDER THE CIRCUMSTANCES WE DO SUBMIT WOULD VITAL THE CONFRONTATION CLAUSE. HOWEVER, I THINK
THAT THERE'S STILL THE ISSUE THAT I'VE LAID OUT OR ATTEMPTED TO LAY OUT AS TO WHY THIS
DOESN'T PASS MASTER UNDER THE TENDER YEARS EXCEPTION. CHIEF JUSTICE RABNER:
COUNSEL, WE'RE JUST ABOUT AT THE FIVE-MINUTE MARK THAT YOU HAD FOR ARGUMENT. IF THERE'S
ANYTHING ELSE. CLAUDE CAROLINE HEFFRON: THE ONLY OTHER THING I WOULD ADD
IS I WOULD JUST URGE THIS COURT TO -- I WANT TO DRAW THIS COURT'S ATTENTION TO JUSTICE
ALBIN'S DISSENT WHERE HE SAID THE RIGHT TO A FAIR TRIAL IS TRANS ESSENTIAL DENT.
CONSTITUTIONAL RIGHTS SHOULD NOT MELT AWAY WHEN THE ACCUSED IS CHARGED WITH A PARTICULARLY
VIAL CRIME EVEN WHEN THAT CRIME IS AGAINST A CHILD. BUDA. EVEN WHEN A CHILD VICTIM EE
VOEKS UNIVERSAL SYMPATHY. I WOULD SUBMIT BECAUSE THE CHILD HERE IS UNAVAILABLE
TO TESTIFY AS TO THE CORE ACCUSATIONS REGARDING THREE OF THESE FOUR INCIDENTS, THE CORRECT
CONCLUSION WOULD BE TO REINSTATE THE RULING OF THE TRIAL COURT AND JUST REDACT THE
REFERENCES TO THOSE THREE WHILE LEAVING THE OTHER INTACT. CHIEF JUSTICE RABNER:
MR. LEIBOWITZ. MILTON S. LEIBOWITZ: THANK YOU, YOUR HONORS, MAY IT PLEASE
THE COURT, THE STATE RESPECTFULLY REQUESTS THAT YOU AFFIRM THE APPELLATE DIVISION'S RULING
BECAUSE THE ADMISSION OF A.R.'S UNREDACTED TENDER YEARS STATEMENT WILL NOT VIOLATE THE
DEFENDANT'S RIGHT. MY. AND SECOND DEFENDANT'S ARGUMENTS AN WHY
THIS COURT SHOULD REJECT THEM. ADDRESSING THE FERS PART IT'S UNDISPUTED THE
DEFENDANT HAS A RIGHT TO CONFRONTATION AND THAT IT IS IMPORTANT. HOWEVER IT IS NOT FOND
LESS. AS THE PEL DIVISION PROPERLY FOUND CASE LAW CLEARLY ESTABLISHES THAT THE DEFENDANT'S
RIGHT TO CONFRONTATION ALLOWS HIM AN OPPORTUNITY FOR EFFECTIVE CROSS-EXAMINATION, NOT
A CROSS-EXAMINATION THAT IS EFFECTIVE IN WHATEVER WAY DEFENDANT WANTS TO WHATEVER EXTENT
P DEFENDANT WANTS. WHETHER A DEFENDANT'S RIGHT TO CONFRONTATION WILL BE
SATISFIED WHEN THE WITNESS TAKES THE STAND, IS PLACED UNDER OATH AN ANSWERS QUESTIONS AND
THAT WILL OCCUR IN THIS CASE. A.R. AS EVIDENCE BY HER 104 HEARING TESTIMONY
WILL BE PRESENT AT TRIAL. SHE WILL TAKE THE STAND. SHE WILL BE PLACED UNDER OATH AND
SHE WILL ANSWER QUESTIONS. ACCORDINGLY THE DEFENDANT'S RIGHT TO CONFRONTATION WILL BE
SATISFIED AND THAT SHOULD EVEND END THE INQUIRY. HOWEVER THE DEFENDANT
NEVERTHELESS CONTENDS THAT HIS RIGHT TO CONFRONTATION WILL BE VIOLATED BECAUSE SHE IS
A BLANK SLATE BECAUSE SHE HAS COMPLETE MEMORY LOSS WITH RESPECT TO SOME OF THE ALLEGATIONS.
THE DEFENDANT'S ARGUMENT HAS FOUR FLAWS IT MISZ CHARACTERIZESES THE RECORD IT'S CONTRADICTED
BY CASE LAW IT'S BASED UPON AN IN TEN TO IMPROPERLY CONFLATE THE DEFINITION OF
AVAILABILITY UNDER 10 HAD AND WITH THE RIGHT TO CONFRONTATION AN IT WILL RESULT IN UN DEN
ABDOMINAL CONSEQUENCES AS TO THE FIRST PART, A.R. DOES NOT HAVE COMPLETE MEMORY LOSS.
L SHE RECALLS A LOT OF THIS INCIDENT. IT IS ONLY WHEN WE PARSE THIS AS DEFENDANT SEEKS
IN A MANNER THAT IS UNSUPPORTED BY CASE LAW THAT PERHAPS AN ARGUMENT CAN BE MADE THAT
SHE HAS NO RECOLLECTION. I WOULD STILL DISPUTE THAT BASED ON THE FACTS OF THE
CASE. THE DEFENDANT'S CLAIM ALSO MUST FAIL BECAUSE THE UNITED STATES SUPREME
COURT HAS FOUND THAT A WITNESS'S POOR MEMORY DOES NOT HAVE 6TH AMENDMENT CONSEQUENCES.
THIS FINDING HAS BEEN ADOPTED BY SEVEN CIRCUITS, INCLUDING OUR OWN, IN STATE V. SIMS,
PLUS EVEN IF A.R.'S TESTIMONY CAN BE PARSED IN THE MANNER THAT DEFENDANT SEEKS SHE STILL
WOULD NOT BE UNAVAILABLE AS THEY ASSERT. THE DEFENDANT'S RIGHT TO CONFRONTATION STILL
WOULD BE SATISFIED. THE DEFENDANT'S ATTEMPT TO USE THE DEFINITION OF
UNAVAILABILITY UNDER 80 # IS SIMPLY UN AVAILING AND IMPROPER. UN AVAILABILITY
IS FOR THE PURPOSE OF A PARTY AVAILING THEMSELVES OF THAT HEARSAY EXCEPTION RULE IT DOES
NTSDZ APPLY CARTE BLANCHE TO EVERYTHING ELSE AN AS YOUR HONORS IS POINTING OUT THE STATE
IS PROCEEDING UNDER 803 C 27, THEREFORE IT IS INAPPROPRIATE TO ATTACH THE DEFINITION IN
A SUBSEQUENT RULE UNRELATED TO THE KWAS AT BAR. FIEMLY AS YOUR HONORS HAVE
QUESTIONED, THE IS UN TENABLE, IT HAS UN TENABLE CONSEQUENCES NAMELY THAT IN, 803 C 5
WOULD BE DEEMED UNCONSTITUTIONAL AND THAT IT'S ALMOST IMPOSSIBLE TO CREATE A WORKABLE
RULE TO DETERMINE WHEN MEMORY LOSS IS SUFFICIENTLY LOST THAT IT SEEMINGLY DPROOIFS
DEFENDANT OF THE RIGHT TO CONFRONTATION. FOR THESE REASONS THE DEFENDANT'S
INTERPRETATION CANNOT BE CORRECT AN THEREFORE THE STATE WOULD ASK THAT YOU AFFIRM THE
APPELLATE DIVISION'S RULING. UNLESS YOUR HONORS HAVE ANYTHING THAT YOU WOULD
LIKE ME TO ADDRESS I CAN MOVE INTO THE REMAINDER OF MY ARGUMENTS THAT IS THE ENDS OF MY
PRELIMINARY ARGUMENT. THE COURT: HOW COMMON IS THE SCENARIO THAT WE'RE SEEING
HERE A YOUNG CHILD LEVELS AN ALLEGATION OF SEXUAL ABUSE AND HAS NO RECOLLECTION AS TIME
PASSES HOW OFTEN DO YOU SEE THAT. MILTON S. LEIBOWITZ: KWIEFRN YOUR HONOR,
IT IS THE PURPOSE OF 803 C 7 IT IS THE RECOGNITION THAT JUVENILES FORGET. IF THEY
ARE UNDER YOUNG. IT IS COMMON THAT THERE ARE GAPS OF THEIR MEMORY THAT THEY
CANNOT TESTIFY TO. I CAN'T GIVE YOU A NUMBER UNFORTUNATELY. THE COURT:
WITH THAT IN MIND, FOLLOWING UP ON MS. HEFFRON'S ARGUMENT MENT A THREE-YEAR DELAY FROM
THE INTERVIEW WITH THE INVESTIGATOR UNTIL THE TIME OF INDICTMENT, WHY DID THAT HAPPEN?
MILTON S. LEIBOWITZ: THE INVESTIGATION IN THIS CASE TOOK LONGER,
ESPECIALLY WHEN THERE WAS A SECOND VICTIM WHO ENLED UP DISCLOSING AN TLVS THE ADDITION
OF THE MISS ON DUCT CHARGES. WHO DISCLOSED, WHO, PUT THEM THROUGH OF A TRIAL, THEIR WISHES,
THINGS OF THAT NATURE AS WELL, THE FAMILY WISHES AND COOPERATION. AS FAR AS IF THERE WAS
ANYTHING SPECIAL OR SPECIFIC HERE, NOT THAT I AM AWARE OF THAT I CAN IDENTIFY BUT THE
DEFENSE HAS NEVER ALLEGED A SPEEDY TRIAL VIOLATION. THE DEFENSE HAS NEVER ALLEGED WE
DID ANYTHING UNTOWARD. THE DELAY OF THE CASE AT THIS POINT IT WAS 8 YEARS NOW, THERE HAVE
BEEN MANY FILINGS IN THIS MATTER. I WOULD ALSO. CHIEF JUSTICE RABNER: ASSUME
THERE IS NO BACK BLANK. THE LENGTHY TIME FROM WHEN THIS EVIDENCE WAS FIRST PRESENTED
UNTIL THE TIME OF INDICTMENT CAN EXACERBATE THE VERY ISSUE THAT IS IN FRONT OF THE COURT
TODAY, WOULD YOU AGREE? MILTON S. LEIBOWITZ: IT COULD, YES. THE
COURT: AND WOULD BE BEST AVOIDED. MILTON S. LEIBOWITZ: IDEALLY, YES, IT
WOULD BE BEST AVOIDED. I CONTEND WE DON'T KNOW WHEN SHE LOST HER RECOLLECTION SO IT IS
POSSIBLE A YEAR AFTER, TWO YEARS SHE NO LONGER DISCLOSED. I UNDERSTAND WHERE THREE YEARS
MAY TROUBLE THE COURT THERE IS NOTHING TO EVIDENCE THAT THAT IS WHAT CAUTIOUSED IT. IT
MAY HAVE, BUT I CAN'T SAY THAT FOR CERTAINTY AND I SUBMIT IT DOESN'T NECESSARILY CHANGE
THE STATE'S POSITION WITH RESPECT TO THE CONFRONTATION CLAUSE ANALYSIS HERE.
CHIEF JUSTICE RABNER: SO, ADDRESS, IF YOU WOULD THE ARGUMENT THAT COUNSEL HAD ADVANCED
THAT THERE IS SOMETHING UNSETTLING ABOUT THE NOTION THAT A WITNESS TAKES THE STAND AND
CANNOT RECOLLECT ANY OF THE CRITICAL FACTS THAT GO TO THE CHARGE ITSELF. WHY
IS THAT NOT PROBLEMATIC. MILTON S. LEIBOWITZ: BECAUSE THAT IS COMPELLING.
AS YOUR HONOR AS POINTED OUT, MANY OF YOU, THIS IS EFFECT I CROSS-EXAMINATION SHOWING
THAT THIS WITNESS DOES NOT RECALL THIS HEINOUS ALLEGATION THAT THEY ARE ALLEGING. I THINK
THAT IS TELLING. THE DEFENSE CAN POSIT JUCHGSZ, BY RAS CEASE. PERHAPS MORE IMPORTANT,
VIOLATION OF THE CONFRONTATION CLAUSE. IT HAS BEEN ROUTINELY ADOPTED THAT A WITNESS'S
INABILITY TO RECALL HAS NO 6TH AMENDMENT CONSEQUENCE. CHIEF JUSTICE
RABNER: I THINK YOUR ARGUMENT WOULD BE EXACTLY THE SAME IF THERE WERE NO FOURTH, NO TABLE
INCIDENT IN THIS CASE, IF ALL YOU HAD WITH WERE THE THREE EPISODES, TELL ME IF I'M MISTAKEN,
AND THE WITNESS SAYING I CAN'T REMEMBER THOSE EPISODES TAUM YOU WOULD STILL ARGUE THAT THE
VIDEOTAPE RECORDED STATEMENT COULD COME INTO EVIDENCE, CORRECT? MILTON S.
LEIBOWITZ: YES, YOUR HONOR, I WOULD. I THINK SIMS IS TELLING. SIMS WAS A VERY INTERESTING
CASE STUDY FOR OUR RULES OF EVIDENCE IN CONFRONTATION. IN SIMS THE VICTIM WAS SHOT
BY THE STATEMENT TO HIS, I BELIEVE IT WAS GRANDMOTHER, AN THEN TO A STATEMENT TO THE
POLICE, WHEN IT COMES TIME FOR A WADE/HENDERSON HEARING HE BACKS UP AND SAYS I DO NOT
RECALL, WHILE THAT MAY BE A FEIGNED LACK OF RECOLLECTION, THE JURORS DON'T KNOW THAT.
NOTABLY AT THE TIME OF TRIAL HE DOESN'T TESTIFY AT ALL AND THEREFORE HE IS UNAVAILABLE
AND THAT'S WHY 804 WAS DONE AND ONCE PEELING BACK THAT LAYER THAT THIS COURT FOUND DESPITE
HIS REPEATED I DON'T REMEMBERS, I CAN'T RECALL, INABILITY TO REALLY TESTIFY AND PROVIDE
ANYTHING OF SUBSTANCE AT THAT WADE HENTD HEARING HIS RIGHT TO CONFRONTATION WAS NOT VIOLATED
HE HAD AN IMMEDIATE OPPORTUNITY FOR CROSS-EXAMINATION AT THAT HEARING AND THAT IS
WHY THE STATE WAS ULTIMATELY PERMITTED TO USE IT AT SIMS AT TRIAL EVEN THOUGH HE DIDN'T
TESTIFY. THAT IS A SITUATION IN WHICH THE VICTIM, MUCH LIKE OURS HERE, I DO NOT RECALL,
AND THIS COURT FOUND THAT THAT WAS STILL AN OPPORTUNITY FOR EFFECTIVE CROSS-EXAMINATION
AND THEY QUOTED OWENS AN GROOEN AND EVERYTHING, ESSENTIALLY THAT WE HAVE HAD, THAT HAS
RECOGNIZED THAT THE INABILITY NOT TO RECALL DOES NOT HAVE SIXTH AMENDMENT CONSEQUENCES.
JUSTICE MICHAEL NORIEGA: YOU WOULD AGREE DESPITE THE FACT THAT THE DEFENSE
MAY HAVE A COMPELLING CROSS-EXAMINATION BASED ON THE FAILURE TO RECOLLECT, THAT THE STATE
WILL HAVE AN INCREDIBLY PIECE OF EVIDENCE WHEN THE VIDEO IS SHOWN AND THREE INCIDENTS
THAT ARE COMPLETELY UNTESTED AND UNABLE TO BE CHALLENGED IN ANY WAY SHAPE OR FORM ARE
PRESENTED WITH THE ONE THAT IS PRESENTLY AN DESCRIBED IN THE PAST. MILTON S.
LEIBOWITZ: WHILE IT IS A STRONG PIECE OF EVIDENCE, I CAN ASSURE YOU THE STATE WOULD
LOVE IT FOR THE VICTIM TO BE ABLE TO TESTIFY IN FROPT OF THE JURORS SO THAT THEY COULD
HEAR FROM HER. THE DEVENLS CAN'T ALLEGE THAT SHE IS SOMEHOW MAKING IT UP BY HER INABILITY
TO RECALL. THE STATE WANTS NOTHING MORE THAN HER ABILITY TO TESTIFY AND IS EQUALLY PREJUDICED
BY HER INABILITY TO TESTIFY. THE DEFENDANT ULTIMATELY FACES THE CONSEQUENCES OF THE
ACTIONS, BUT IT IS THE STATE THAT MUST PROVE THE CHARGES AND LAUNCH THIS EVIDENCE, TOO.
THIS IS A SECONDARY PIECE THAT WE WILL, OF COURSE SEEK TO USE AN WANT TO USE BECAUSE IT IS
RELIABLE EVIDENCE AS DEEMED BY THE TRIAL COURT. THE DEFENDANT NEVER APPEALED TO CHALLENGE
THAT RULING AND THE JURY SHOULD BE ABLE TO HEAR IT SO, YES, YOUR HONOR, TO ANSWER YOUR
QUESTION, IT IS A STRONG PIECE OF EVIDENCE FOR THE STATE BUT I WOULD DISAGREE WITH ANY
ASSERTION THAT THE DEFENSE WON'T BE ABLE TO PROPERLY CROSS-EXAMINATION THE WITNESS ON
THIS AND SET FORTH AN EFFECT I HAVE CROSS-EXAMINATION AS JUSTICE PATTERSON HAS
ASKED US MANY QUESTIONS, IT'S GOING TO BE QUITE COMPELLING AND I DO NOT ENVY THE TRIAL
PROSECUTOR WHO IS GOING TO HAVE TO PRESENT THIS TO THE JURY. I DID PROVIDE
THE COURT WITH A QUITE LENGTHY STRING FIGHT IN PREPARATION FOR TODAY. I DID REALIZE,
UNFORTUNATELY THAT THREE OF THE CASES IN THE FIRST PORTION THAT WAS SUPPOSED TO ONLY BE
TEND YEAR STATEMENTS WERE ERRONEOUSLY INCLUDED IN THERE ONE WAS EXCITED UTTERANCE AN ONE
WAS AN AND ONE IS A STATEMENT TO A PSYCHOLOGIST, NEFRMS THEY STILL SUPPORT THE STAILT'S
PROPOSITION AND HAD THEY NOT BEEN IN THE FIRST PART WOULD HAVE BEEN IN THE SECOND PART
OF THAT LONG STRING CITE. I BELIEVE, NEARLY EVERY ONE OF THOSE CASES, OWENS
OR GROOEN IS KROOITD FOR THIS PROPOSITION BECAUSE EVERY COURT HAS RECOGNIZED THERE IS
NO BLANK. JUSTICE WAINER APTER: THERE IS NO CASE THAT HAS EVER COME OUT
THE OTHER WAY THAT YOU FOUND. MILTON S. LEIBOWITZ: I THINK THERE WERE SEVERAL
ON THE BACK END OF MY CITE THERE WERE SLIGHTLY DISTINGUISHABLE I AM NOT SURE HOW THEY
ADDRESSED IT GOING FORWARD IF THERE WEREN'T SUBSEQUENT CASES ANALYZING IT. IT SEEMED
VERY FACT SPECIFIC, BUT FOR THE MOST PART, NO. AS TO YOUR HONOR'S QUESTION
REGARDING A CONSTITUTION NATURAL LINE AND THE EMPTY VESSEL, I SUBMIT THAT THE DEFENSE
ASKED THIS COURT TO FIND THAT A.R. IS AN EMPTY VESSEL AFTER THEY DUMPED OUT THE WATER
THAT WAS IN IT. SHE RECALLED THIS ONE STATEMENT. AS JUSTICE PIERRE-LOUIS
POINTED OUT IF A WITNESS IS ON IS THE STAND AND TESTIFIES ABOUT 99 THINGS AN FORGETS ONE
OF THEM THAT DOESN'T SUDDENLY MAKE THEM UNAVAILABLE. YOU NEED TO EVALUATE THAT
PERSON'S MEMORY AS A WHOLE. I SUBMIT THAT'S NOT WHAT IS BEING ASKED OF THIS COURT HERE.
SHE RECALLS IT. SHE RECALLS ONE INSTANCE WITH SPECIFICITY. THIS IS A CONTINUING COURSE
OF CONDUCT. IF YOU LOOK AT HER ACTUAL STATEMENT IT'S NOT AS THOUGH SHE IS PROVIDING SPECIFIC
DATES, ULTIMATELY NONE OF THAT MATTERS BECAUSE A LACK OF RECALL IN AN OF ITSELF IS
INSUFFICIENT. IF THIS COURT DOES LOOK TO CREATE SOME KIND OF RULING REGARDING
HOW MUCH FORGETFULNESS IS TOO MUCH I WOULD LIKE TO POINT OUT THAT IT SHOULD VIEW THE WITNESS
AS A WHOLE AND NOT IN THE PARSING MANNER THAT THE DEFENDANT WANTS. JUST COMMENTING
UPON SOME QUESTIONS THAT WERE EARLIER RAISED, JUSTICE NORIEGA YOU MENTIONED CLOSING, I
SUBMIT THAT THAT IS A GREAT OPPORTUNITY FOR DEFENSE TO ARGUE WHAT THEY WANT AND TO FRAME
WHY THIS IS GOING TO BE SO SUCCESSFUL FOR PURPOSES OF CROSS-EXAMINATION. THEY WILL
HAVE AN OPPORTUNITY FOR EFFECTIVE CROSS-EXAMINATION. YOU HAVE
ALREADY ADDRESS TD JEEF JUSTICE CONSTITUTIONAL LINE QUESTION, JUSTICE PATTERSON I AGREE
THIS IS EFFECTIVE CROSS-EXAMINATION, NOT MERELY AN OPPORTUNITY BUT ALL THAT IS REQUIRED
AS AN OPPORTUNITY FOR EFFECTIVE CROSS-EXAMINATION. THE CASES THE
DEFENDANT RELIEZ UPON ARE ALL DISTINGUISHABLE ABDOMINAL, IN CODER DIDN'T TESTIFY AT TRIAL,
IN NYHAMMER THE WITNESS WAS SILENT AND UNRESPONSIVE. NOTHING IS LIKE THE FACTS
HERE. IN THIS CASE, THEY ARE, FORGETFUL. A WITNESS WITH WHOSE TESTIMONY IS MARCHED BY
FORGET. NESS DOES NOT HAVE SIXTH AMENDMENT CONSEQUENCES AN THUS THE STATE WOULD ASK THAT
YOU AFFIRM THE APPELLATE DIVISION'S RULING AND FIND IF A.R. COMES TO COURT, TESTIFIES
AND TAKES THE OATH THAT THE DEFENDANT WILL BE AFFORDED HIS RIGHT TO CONFRONTATION AN THE
ADMISSION OF A.R. UNREDAKD TEND YEARS STATEMENT DOES NOT. CHIEF JUSTICE RABNER:
MR. CAROCCIA, HOW MUCH TIME DO YOU ANTICIPATE USING. THOMAS M. CAROCCIA:
MAYBE LIKE FIVE MINUTES. CHIEF JUSTICE RABNER: (NO AUDIBLE
RESPONSE.) CHIEF JUSTICE RABNER: I AM TRUSTING YOU'RE GOING TO BE A PERSON
OF HONOR JUST AS MR. LEIBOWITZ WAS COMING IN UNDER HIS TIME. THOMAS M.
CAROCCIA: OKAY. GOOD MORNING, YOUR HONORS AN MAY IT PLEASE THE COURT.
THE ATTORNEY GENERAL'S INTEREST IN THIS CASE IS ENSURING THAT ESTABLISHED AND FAIRLY DECIDED
LAW ON TWO DOCTRINES THE CONFRONTATION CLAUSE AN THE TENDER YEARS CLAUSE, THE DEND DER
YEARS RULES REMAIN UNFEKTD BY THE FACTS HERE. ADMISSION OF A.R.'S STATEMENT
WOULD BE PROPER AN FAIR BECAUSE THE DEFENDANT WILL RECEIVE AN OPPORTUNITY FOR EFFECTIVE
CROSS-EXAMINATION AND HER IMPERFECT MEMORY ON INDIVIDUAL INCIDENTS DOES NOT MAKE HER
UNAVAILABLE TO TESTIFY TESTIFY UNDER THE TENDER YEARS RULE. THERE ARE THINGS
THAT A.R. DOES REMEMBER ABOUT THESE INCIDENTS. SHE REMEMBERS GENERALLY SPEAKING, ABOUT,
YOU KNOW, INCIDENTS WITH THE DETECTIVE RIOS. SHE REMEMBERS SHOWING ON THE DOLL WHERE
SHE HAD BEEN TOUCHED. SHE REMEMBERS THAT SHE WAS TRYING TO TELL THE TRUTH AT THE INTERVIEW.
SO WHILE SHE DOES NOT RECALL THE ACTUAL, THE THREE INCIDENTS OF TOUCHING THAT WE'VE
ALREADY DISCUSSED, SHE DOES RECALL SURROUNDING FACTS MORE THAN JUST WHAT THE CLASSROOM
LOOKED LIKE AND THINGS LIKE THAT. THERE ARE MORE -- THESE TYPES OF THINGS ARE ASPECTS
ON WHICH SHE CAN BE CROSS EXAMINED AS WELL THAT WE HAVEN'T MENTIONED SO FAR.
FIRST, WITH REGARD TO TENDER YEARS, AS JUSTICE WAINER APTER NOTED, THE WITNESS SIMPLY HAS
TO TESTIFY. THE WITNESS IS NOT SUBJECT TO 804 WHICH IS SPECIFICALLY NOT SUBJECT TO 8
04 WHICH IS WHY STATE V. CODER IS INAPPLICABLE. IN CODER, THERE WAS AN INABILITY OR UNWILLING
NESS TO TESTIFY AT THE SO 4 HEARING AND THAT SHE WAS NOT CALLED AT TRIAL. THAT
WITNESS DID NOT REMEMBER SEEING DEFENDANT, TALKING TO THE POLICE. SHE DIDN'T KNOW WHY
SHE WAS IN COURT, WHETHER AREAS ON HER BODY SHOULDN'T BE TOUCHED, WHETHER ANYTHING
HAPPENED TO MANG HER FEEL SAD. HERE, THAT IS COMPLETELY CONTRARY TO WHAT A.R. WILL TESTIFY
TO. AT AT THE 104 SHE ANSWERED ALL QUESTIONS ON DIRECT. SHE ANSWERED ALL QUESTIONS ON
CROSS. THE JUDGE EVEN MADE A FINDING THAT SHE POSSESSES THE ANLT TO RECOLLECT AND RECALL
AND RELATE. THERE IS NO TENDER YEARS ISSUE IN TERMS MUCH HER AVAILABILITY IN THIS CASE
BECAUSE SHE WILL TESTIFY. WITH REGARDS TO THE CONFRONTATION CLAUSE, THE CASE
LAW TELLS YOU US THAT SO LONG KER AS A.R. APPEARS AT TRIAL, TAKES THE OATH AN ANSWERS
QUESTIONS WILLINGLY THE CONFRONTATION CLAUSE IS SATISFIED AND THAT'S EXACTLY WHAT WILL
HAPPEN HERE. UNDER OWENS, AS LONG AS THERE IS A FULL AN FAIR OPPORTUNITY TO
PROBE AGAINST FORGETFULNESS, CONFUSION, EVASION, LACK OF CARE, LACK OF MEMORY, THAT IS
SUFFICIENT FOR CONSTITUTIONAL PURPOSES. THE WEAPONS AVAILABLE AS SAID IN OWENS
WILL NOT ALWAYS ISSUE YOU U SUCCESS BUT SUCCESS IS NOT A CONSTITUTIONALLY STIT ACTUAL
NASHGS. GUARANTEE. WITH REGARDS TO NYHAMMER AN SIMS, NYHAMMER, AGAIN, SIMILAR
TO CODER, TLVS A CASE WHERE THE WITNESS WAS COMPLETELY SILENT AND UNRESPONSIVE, WHICH IS,
AS I'VE NOTED. JUSTICE PATTERSON: COUNSEL, IF YOU VIEW CODER AND THIS CASE
AS BEING A PART OF A SPECTRUM OF CIRCUMSTANCES WHERE IS THE CONSTITUTIONAL LINE DRAWN?
OBVIOUSLY IN CODER THE CHILD WAS SHAKING HER HEAD, AS I RECALL THE THOSE
FACTS. THOMAS M. CAROCCIA: FOR PURPOSES OF THE KONS STIT TUSHGS NATURAL,
DO YOU MEAN IN TERMS OF WHAT HER RESPONSE WOULD BE? JUSTICE PATTERSON:
WHAT IS THE POINT AT WHICH THE WITNESS'S ABILITY TO PROVIDE EVIDENTIARY SOLVES THE
CONSTITUTIONAL ISSUE? WHAT DOES THE WITNESS HAVE TO DO IN ORDER TO PROVIDE
A SUFFICIENT TUPT FOR CROSS-EXAMINATION. THOMAS M. CAROCCIA: IT IS WHEN
THE WITNESS ANSWERS THE QUESTION WILLINGLY, VERBALLY. SO, HERE, FOR EXAMPLE,
A.R. CASH CASH THERE IS NO EVIDENCE IN ANY OF THE TRANSCRIPTS THAT A R EITHER NODDED OR
SHOOK HER HEAD OR ANYTHING LIKE THAT. WHEREAS IN CODER, AS YOUR HONOR MENTIONED, THAT WAS
GOING ON THERE TO THE EXTENT THAT SHE EVEN ANSWERED QUESTIONS AT ALL. SO THAT, TO ME,
WOULD BE THE DIFFERENCE. CHIEF JUSTICE RABNER: EVEN IF THE ANSWERS BY
THEMSELVES COULD NOT ESTABLISH A CONVICTION? THOMAS M. CAROCCIA: CAN YOU
REPHRASE THE QUESTION, PLEASE. THE COURT: IF YOU DIDN'T HAVE THIS VIDEOTAPE,
COULD THE STATE OBTAIN A CONVICTION ON THE THREE INCIDENTS? THOMAS M. CAROCCIA:
WITH JUST HER GETTING ON THE STAND AND SAYING I DON'T KNOW, I DON'T REMEMBER?
IT GOES TO HER CREDIBILITY IN FRONT OF THE JURY. THE COURT: YOU WOULDN'T
BE ABLE TO ESTABLISH THE ELEMENTS WITHOUT THE TAPE, NO? YOU WOULDN'T HAVE
ANY EVIDENCE SHORT OF HER TESTIMONY, WHICH WOULD BE I DON'T RECALL ANYTHING ABOUT THOSE
THREE INCIDENTS, WOULD YOU GET A CONVICTION ON THE THREE INCIDENTS UNDER THOSE
CIRCUMSTANCES. THOMAS M. CAROCCIA: IT WOULD BE AN ISSUE IN TERMS OF EVIDENTIARY
ISSUES BUT IT WOULDN'T BE A CONSTITUTIONAL ISSUE. THE COURT: COULD YOU GET
BY A RULE 29 MOTION? THOMAS M. CAROCCIA: I WOULD SUPPOSE THAT IT WOULD
-- IF IT GETS TO TRIAL I WOULD SUPPOSE IT WOULD DEPEND ON THE FACTS OF THE CASE SFLFRMTHS
I DON'T THINK THIS IS A HARD QUESTION. IF NO WITNESS TAKES THE STAND AND SAYS THESE
INCIDENTS TOOK PLACE AN THE ONLY PROOF OF THAT IS IN A VIDEOTAPE THAT DOESN'T COME INTO
EVIDENCE, CAN YOU GET A CONVICTION? THOMAS M. CAROCCIA: CORRECT. NO.
BECAUSE THERE IS NO EVIDENCE IN EVIDENCE TO SHOW THE JURY. CHIEF JUSTICE RABNER:
SHOULD THAT WORRY ANYONE? THOMAS M. CAROCCIA: NO BECAUSE THE PURPOSE OF
TEND DER YEARS IS TO MAKE SURE THAT STATEMENTS LIKE THIS ARE PRESERVED BECAUSE WE KNOW
OF THE FAULTY MEMORY OF, YOU KNOW, CERTAIN CHILD VICTIMS WHICH HAS BEEN SPOKEN ABOUT IN
THIS COURT WHICH LED TO THE TEPD DER YEARS RULE ADOPTION SO I DON'T THINK THAT THAT SHOULD
TROUBLE THE COURT HERE. JUSTICE MICHAEL NORIEGA: IT MAKES SENSE THAT USING
THEM AT THE TRIAL KNOWING THAT THE VICTIM DOESN'T RECOLLECT THE INCIDENT AT ALL EVEN SPEAKING
TO THE DETECTIVE ABOUT IT ISN'T THAT A DIFFERENT ANALYSIS THAT THE STATE SHOULD MAKE?
THOMAS M. CAROCCIA: SHE DOES REMEMBER IT IN THIS CASE, THOUGH. SHE
DOESN'T NT REMEMBER EXACTLY THE TOUCHING THEM JENNIFER SELLITTI ON BEHALF OF BUT SHE
REMEMBERS THE CIRCUMSTANCES SURROUNDING IT. JUSTICE MICHAEL NORIEGA: I THOUGHT
THE TESTIMONY WAS AT THE HEARING THAT SHE SIMPLY DID NOT RECALL THOSE THREE INCIDENTS,
SHE DID NOT RECALL EVEN SPEAKING TO THE DETECTIVE ABOUT THEM. WATCHING THE VIDEO SHE
SAYS I DON'T REMEMBER SAYING THAT. SHE REMEMBERS THE FOURTH ONE WE KNOW THAT ONE IS
ISOLATED BUT THOSE OTHER THREE SHE DIDN'T REMEMBER ANYTHING ABOUT THEM. SHE REMEMBERS
BEING IN THE CLASSROOM AND THE DETAILS SURROUNDING IT MEANING SHE WAS IN SCHOOL AT
THE TIME BUT NOT THE INCIDENTS THEMSELVES IN ANY WAY, SHAPE OR FORM SHOULDN'T THAT BE
TROUBLING FOR THE STATE TO PRESENT THOSE ASPECTS OF THE CASE AS EVIDENCE. THOMAS
M. CAROCCIA: SHE DOES TESTIFY. IF YOU LOOK ON PAGE 36 OF THE TRANSCRIPT, SHE DOES TESTIFY
OR EXCUSE ME, SAYS TO THE OFFICER THAT SHE DID REMEMBER SOME OF THE STATEMENT AND SHE
DID REMEMBER SPEAKING TO I THINK SHE CALLED HIM DETECTIVE JOSH. JUSTICE MICHAEL
NORIEGA: OF COURSE IF SHE REMEMBERS IS THE LAST INCIDENT SHE WOULD REMEMBER THE STATEMENT
SHE GAVE TO THE OFFICERS, BUT AS FAR AS THE THREE, JUST ISOLATING THOSE THREE SHE DOES
NOT RECALL GIVING THOSE TECH STATEMENTS TO THE OFFICER. THOMAS M. CAROCCIA:
CORRECT. JUSTICE PATTERSON: SHE REMEMBERS THE DOLL. JUSTICE
WAINER APTER: SHE REMEMBERS TOUCHING THE DOING OR BEING TOLD TO TOUCH THE DOLL AT PLACES
WHERE SHE HAD BEEN TOUCHED, RIGHT. THOMAS M. CAROCCIA: YES.
JUSTICE WAINER APTER: THOSE WERE ONLY FOR THE OTHER THREE BECAUSE THE TABLE INCIDENT AS
IT HAS BEEN TERMED WOULD NOT HAVE INVOLVED TOUCHING OF HER IN ANY WAY SO IT WOULD NOT
HAVE INVOLVED THE DOLL, CORRECT? THOMAS M. CAROCCIA: CORRECT, FAB FASH
IS THIS THE SORT OF THING THAT IS HAPPENING A LOT A WITNESS GIVES A STATEMENT AT THE TENDER
YEARS EXCEPTION AN THEN AT TRIAL WILL SAY I JUST DON'T REMEMBER KA KAR I'M NOT SURE IT'S
HAPPENING UNDER THE TEND YEARS RULE SUPER FREQUENTLY BUT I DO KNOW IT WAS PART OF THE
REASON WHY THE TEND YEARS RULE WAS ENACTED. IT IS DEFINITELY A CONCERN UNDER THE TEND
YEARS RULE. SO THE ONLY OTHER THING I WANT TO SORT OF TALK ABOUT WAS SIMS.
AND SIMS, AS WELL AS STATE V. CABBELL, BOTH OF THOSE CASES ARE DEEMED LACK OF RECOLLECTION
CASES BUT BOTH OF THEM ARE UN UNDER DER PINNED BY OWENS AN GROOEN. BOTH OF THEM CITE
TO OWENS AN GROOEN. IT IS THE ATTORNEY GENERAL'S POINT OF VIEWER PER, IS ALSO, OF NO
SIXTH AMENDMENT CONSEQUENCE BECAUSE THE CONFRONTATION RIGHT DEPENDS ON DEFENDANT'S
OPPORTUNITY TO PROEB A.R.'S LACK OF MEMORY FEIGNED OR NOT. AND I BELIEVE IF
THE COURT HAS NO FURTHER QUESTIONS, THE ATTORNEY GENERAL WOULD ASK THE COURT TO AFFIRM
THE DECISION OF THE APPELLATE DIVISION. THE COURT: THANK YOU, MR. CAROCCIA.