The Court does not address the constitutional issues reached by the Appellate Division because this matter can be resolved by resort to New Jersey’s evidence rules, and courts should not reach a constitutional question unless imperative to the litigation. The source of the current tender-years exception, including its incompetency proviso, is State v. D.R., 109 N.J. 348 (1988). In D.R., the Court recognized that, in a child-sex-abuse prosecution, “testimony by the victim is often the indispensable element of the State’s case,” and determined that the evidence rules needed an additional “exception to the hearsay rule.” Id. at 358. The Court also expressed concern that a child’s incompetency would present an insurmountable obstacle to the admission of the child-victim’s out-of-court statement. That concern gave rise to the incompetency proviso.
The incompetency proviso proposed in D.R. and adopted as a rule read as follows: “no child whose statement is to be offered in evidence shall be disqualified to be a witness by virtue of the requirements of paragraph (b) of the competency rule.” Id. at 378. It rendered inoperative only paragraph (b) of the competency rule; it did not allow a child deemed incompetent under paragraph (a) to testify. With the 1993 renumbering of the Rules of Evidence, the reference to paragraph (b) was removed. The proviso now reads: “no child whose statement is to be offered in evidence shall be disqualified to be a witness in such proceeding by virtue of the requirements of the competency rule.” The consequences of this expansion are significant and far-reaching because it permits the testimony of a child victim not only incapable of understanding the duty to tell the truth (paragraph b) but also incapable of distinguishing between fantasy and reality and of expressing himself in a manner to be understood by a judge or jury (paragraph a). The record concerning the promulgation of N.J.R.E. 803(c) (27) provides no clear explanation for the removal of the reference to paragraph (b). Accordingly, the Court requests that the Supreme Court Committee on the Rules of Evidence consider whether N.J.R.E. 803(c) (27) should be amended.
Evidence Rules are amended through consultations with judges and attorneys. There is a good chance the language regarding paragraph (a) was removed intentionally and without the defense bar taking notice. The removal made it easier to obtain convictions in child sex abuse cases.