                     RECORD IMPOUNDED

                 NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                             SUPERIOR COURT OF NEW JERSEY
                             APPELLATE DIVISION
                             DOCKET NO. A-2238-14T3

                                     APPROVED FOR PUBLICATION
STATE OF NEW JERSEY IN
                                        November 9, 2016
THE INTEREST OF A.R., a minor.
                                       APPELLATE DIVISION
_________________________________

         Argued October 17, 2016 – Decided   November 9, 2016

         Before Judges Sabatino, Haas and Currier.

         On appeal from Superior Court of New Jersey,
         Chancery   Division,  Family   Part,  Hudson
         County, Docket No. FJ-09-0170-15.

         Alison Perrone, Designated Counsel, argued
         the cause for appellant A.R. (Joseph E.
         Krakora, Public Defender, attorney; Ms.
         Perrone, on the brief).

         Jennifer J. Pinales, Assistant Prosecutor,
         argued the cause for respondent State of New
         Jersey   (Esther   Suarez,   Hudson   County
         Prosecutor, attorney; Ms. Pinales, on the
         brief).

         Frank Muroski, Deputy Attorney General,
         argued the cause for amicus curiae State of
         New Jersey Attorney General (Christopher S.
         Porrino, Attorney General, attorney; Ian C.
         Kennedy, Special Deputy Attorney General/
         Acting Assistant Bergen County Prosecutor,
         of counsel and on the brief).

         Lawrence S. Lustberg argued the cause for
         amicus curiae John J. Gibbons Fellowship in
         Public Interest and Constitutional Law at
         Gibbons P.C. (Gibbons P.C., attorneys; Mr.
         Lustberg and Jake F. Goodman, on the brief).
      The opinion of the court was delivered by

SABATINO, P.J.A.D.

      This appeal concerns the continued validity of what can be

termed     the   "incompetency     proviso"       within       the   tender-years

hearsay    exception, N.J.R.E. 803(c)(27).              The    exception,    which

was   enacted    in   1989 in    accordance      with    the    Supreme   Court's

proposal     in State    v.     D.R.,       109 N.J. 348       (1988),    reads as

follows:

            A statement by a child under the age of 12
            relating to sexual misconduct committed with
            or against that child is admissible in a
            criminal, juvenile, or civil proceeding if
            (a) the proponent of the statement makes
            known to the adverse party an intention to
            offer the statement and the particulars of
            the statement at such time as to provide the
            adverse party with a fair opportunity to
            prepare to meet it; (b) the court finds, in
            a hearing conducted pursuant to [N.J.R.E.]
            104(a), that on the basis of the time,
            content and circumstances of the statement
            there is a probability that the statement is
            trustworthy; and (c) either (i) the child
            testifies at the proceeding, or (ii) the
            child is unavailable as a witness and there
            is offered admissible evidence corroborating
            the act of sexual abuse; provided that no
            child whose statement is to be offered in
            evidence pursuant to this rule shall be
            disqualified to be a witness in such
            proceeding by virtue of the requirements of
            [N.J.R.E.] 601.

            [N.J.R.E. 803(c)(27) (emphasis added).]




                                        2                                 A-2238-14T3
       After   a     bench      trial    in    the      Family       Part,    the       appellant

juvenile       in        this       case,         A.R.,       was          found     to       have

committed inappropriate sexual contact with a minor victim, J.C.

On the date in question, both appellant and J.C. rode a school

bus    together       that      was     returning            them     from     summer       camp.

Appellant      was    then      age     fourteen,         and       J.C.    was    age     seven,

although developmentally comparable to a three-year-old.                                    After

getting off the bus, J.C. allegedly told his mother's cousin

that appellant touched his "pee-pee" during the bus ride.                                      The

child's mother reported this to the police.                                A detective with

the county prosecutor's office conducted a videotaped interview

of    J.C.   eighteen        days     later.           During       that    interview,        J.C.

repeated the allegations of genital touching.

       At a pretrial Rule 104 hearing, the trial judge ruled that

J.C.'s hearsay statements to the cousin and the detective were

sufficiently         trustworthy         to       be    admissible           under       N.J.R.E.

803(c)(27).          However,       when      the      trial        commenced,       the    judge

questioned J.C. about his ability to discern and tell the truth,

and twice concluded from J.C.'s troublesome responses that he

was not competent to testify under the criteria of N.J.R.E. 601.

Nevertheless, because of the incompetency proviso in N.J.R.E.

803(c)(27),        the    judge       allowed          the    prosecution          to     present

testimony from J.C.

                                              3                                          A-2238-14T3
    The       child    repeated    on      direct    examination         the     sexual

touching allegations.          Defense counsel conducted a brief cross-

examination.      The judge relied on J.C.'s hearsay statements in

concluding     that    appellant    had       committed    the    sexual   touching,

even though no eyewitnesses on the bus had corroborated the

allegations.

    On appeal, the juvenile argues, among other things, that

J.C.'s hearsay statements to the detective are "testimonial" as

defined   by    the    United     States       Supreme    Court    in Crawford         v.

Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177

(2004),   and    its    progeny.        Appellant         contends      that   he    was

deprived of his rights assured under the Confrontation Clauses

of the United States and New Jersey Constitutions of meaningful

cross-examination of those testimonial statements due to J.C.'s

incompetency.         Appellant    thus       asserts     that    the   incompetency

proviso within N.J.R.E. 803(c)(27) must be invalidated as to

such testimonial hearsay statements.                 Appellant further argues

that his adjudication of delinquency must be set aside for lack

of adequate proof.

    The pivotal question under the Confrontation Clause, as set

forth in the Court's controlling precedents since Crawford, is

whether a declarant's hearsay statements are testimonial.                            The

Court   has    adopted    an    objective        "primary    purpose"      test      for

                                          4                                    A-2238-14T3
ascertaining whether hearsay statements made to law enforcement

officers are testimonial.                See Davis v. Washington, 547 U.S.

813, 822, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237

(2006).

       Here, the circumstances reflect that the objective "primary

purpose" of the detective's videotaped interview was to elicit

and    preserve    statements       from       an    identified      child        victim    of

sexual abuse about wrongful acts for potential use as evidence

in a future prosecution.            The child's recorded statement, which

was admitted over objection, was consequently testimonial.

       The Confrontation Clause guarantees an accused, including a

juvenile    in    our    State    such     as       A.R.,   the     right    to    confront

testimonial       statements      through           cross-examination.             Although

cross-examination was attempted by appellant's trial counsel in

this    case,     that    exercise       was        inadequate      to   safeguard         her

client's rights, given the trial court's undisputed finding that

this particular child was incompetent as a witness.

       As   a   matter    of     evidence       law,    the    proviso       in    N.J.R.E.

803(c)(27)       authorizes        the     admission           of    certain        hearsay

statements       from    young    sexual        assault       victims       who    are     not

competent         witnesses.        Nevertheless,              the       constitutional

imperatives       of    the    Confrontation          Clause      must   override        that



                                           5                                        A-2238-14T3
provisio in the circumstances presented here with respect to the

detective's interview of J.C.

       For similar reasons, the child's incompetent testimony at

appellant's bench trial repeating his accusations must likewise

be    disregarded.   However,     J.C.'s     spontaneous     utterance    to   his

relative after getting off the bus was not testimonial under the

Confrontation     Clause.    Hence,        as    appellant    concedes,        that

particular     statement    was     admissible      as     evidence    for     the

prosecution.

       For the amplified reasons that follow, we therefore reverse

the    trial   judge's     admission        of   this    incompetent     child's

testimonial statements.         We remand the matter for the judge, in

his special capacity as fact-finder, to consider whether the

State's    remaining     evidence      suffices     to     prove   appellant's

commission of the charged offense beyond a reasonable doubt.

                                       I.

       This case stems from an alleged incident in which appellant

A.R., a juvenile born in April 2000, had inappropriate sexual

contact on a school bus with J.C., born in June 2007.                            We

present the factual record in some detail, insofar as it affects

our legal and constitutional analyses.




                                      6                                  A-2238-14T3
       The Alleged Incident on the Bus and J.C.'s Statement to

G.K.

       On   July    3,   2014,      A.R.    and       J.C.   were    on       a     school       bus

transporting approximately twenty children with special needs

from a summer day camp.            J.C. is diagnosed with autism and ADHD.1

The    parties     agree    that,    although         chronologically               the    age    of

seven, he developmentally corresponded to a three-year-old at

the time of the alleged incident.

       J.C. was picked up at the bus stop that afternoon by his

mother's    cousin,        G.K.     After       getting      off     of       the    bus,       J.C.

blurted out to G.K. that A.R. had touched him on his "belly

button and pee-pee."              G.K. walked J.C. home and notified his

mother of the accusation.

       J.C.'s mother reported the incident to the local police,

which   referred      the    matter    to       the    Hudson      County         Prosecutor's

Office.

       The Detective's Videotaped Interview with J.C.

       Eighteen     days    later,    on    July       21,   2014,        Detective            David

Abromaitis    of    the     Prosecutor's         Office      interviewed            J.C.         The

videotaped       interview,       which     took       place    in        a    room       at     the


1
  The trial record does not disclose what, if any, special needs
appellant may have. He has not argued that he lacked the mental
capacity to be culpable for the charged offense.


                                            7                                             A-2238-14T3
Prosecutor's Office, lasted about fourteen minutes.                              No other

persons     were    present,        and    no     "pre-interview"         of   J.C.     was

conducted.     During the interview, J.C. repeated his claim that

A.R. had touched his "pee-pee" and other areas of his body while

they were sitting on the bus.

    Following the detective's interview of J.C., appellant was

charged in a juvenile delinquency complaint with acts which, if

committed    by    an    adult,     would       constitute      second-degree      sexual

assault, N.J.S.A. 2C:14-2(b).                   The State moved to admit J.C.'s

statements    to    G.K.      and   the    detective      under    the     tender-years

hearsay    exception,         N.J.R.E.     803(c)(27).2          The     defense      filed

opposition,       and   the    assigned         Family   Part     judge    conducted      a

hearing pursuant to N.J.R.E. 104, as required under the tender-

years exception, to determine the admissibility of the child

victim's    statements.             In    particular,      the    Rule     104    hearing

focused upon the hearsay exception's admissibility requirement

that "on the basis of the time, content and circumstances of the

statement     there      is     a    probability         that    the      statement      is

trustworthy[.]"         N.J.R.E. 803(c)(27).



2
  At our request, counsel have furnished us with the parties'
motion briefs from the trial court, which reveal the positions
they took below.



                                            8                                    A-2238-14T3
       The Rule 104 Hearing

       Detective Abromaitis was the State's main witness at the

Rule     104    hearing.      He     had       been   employed       by   the     County

Prosecutor's Office for over six years, during which time he had

worked    on    hundreds    of     sexual      assault    investigations.             The

detective stated that he had received special training on the

protocol for conducting interviews with child victims.

       In tandem with the detective's testimony, the trial judge

was provided with a transcript of J.C.'s recorded interview.

The video was played at the hearing in court in the presence of

both counsel.3

       The video reflects that when J.C. walked into the interview

room,    the    detective    asked    him,      "What's      up?",   to   which      J.C.

almost immediately responded, "[A.R.] touched my pee-pee."                            The

detective then queried "Who?", to which J.C. replied, "[A.R.]

touched my pee-pee . . . he touched my belly button . . . he

touched my belly button [and] everybody all laughed at me."

       Later in the interview, the detective asked J.C. where he

was when the touching happened.                Initially, J.C. stated that he

did    not     know.   The    location         was    then    clarified     with      the


3
  We have viewed the video recording as part of the record on
appeal, as well as the associated transcript, which is not
disputed as to its accuracy.


                                           9                                    A-2238-14T3
following exchange, through the use of leading questions by the

detective:

            Q:   Okay . . . can you tell me where you
            were when [A.R.] touched you? Were you at
            home?

            A:   Yes I was at home[.]

            Q:   Or were you somewhere else?

            A:   Somewhere else (inaudible).

            Q:   So where were you?        When you             say
            somewhere else, where's somewhere else?

            A:   I don't know.

            Q:   Okay . . . were you on the bus?

            A:   Yes . . . yes.

            Q:   Yes . . . Okay and where was [A.R.]?

            A:   He was on the bus with me[.]

            Q:   He was with you?        Okay[.]

            A:   Yes[.]

     When    asked   by    the   detective   with   whom   he    lives,    J.C.

responded that he lives with his mother, his friend, dragons,

and "Chowder and Clarence."4         J.C. stated that A.R. touched him

on his "pee-pee," eye, hand, eyebrows, nose, mouth, and legs.

Using   a    working      doll   presented    by    the    detective,      J.C.

4
  It is undisputed that J.C. does not live with a friend but does
live with his mother and an older brother. J.C.'s references to
"Chowder" and "Clarence" are apparently to cartoon characters.


                                    10                                A-2238-14T3
demonstrated where A.R. had touched him on his "pee-pee."                        The

detective did not ask J.C. at any point during the interview if

he understood the difference between the truth and a lie.

       According to the detective, J.C.'s "spontaneous utterings

of the assault" were common in such child victim interviews.                       On

cross-examination,        the   detective     acknowledged       that,    although

J.C. had stated that the inappropriate touching occurred while

being seated, J.C. demonstrated with the working doll that the

touching instead had occurred with his pants fully down.

       The   prosecution        also   elicited      testimony     from      J.C.'s

mother's cousin, G.K., who had picked J.C. up from the bus stop.

According to G.K., she observed A.R., who she identified in the

courtroom, holding J.C.'s hand after they got off the bus.                       She

recalled that while walking with her across the street, J.C.

said, "[A.R.] touched [my] belly button and pee-pee."                    G.K. then

walked J.C. home and notified his mother of the incident.

       The defense countered at the Rule 104 hearing with expert

testimony    from    a    forensic     psychologist     with     experience        in

techniques    used   in    interviewing      child    victims.       The     expert

opined that the detective's interview of J.C. did not comport

with   professional      standards.         According   to   the    expert,      the

detective should have made an assessment of J.C.'s ability to



                                       11                                  A-2238-14T3
"distinguish    between    the    truth   and     a    lie"    and   the      child's

understanding of the "burden to tell the truth."

    The defense expert perceived a "red flag" raised by J.C.'s

apparent inability to distinguish fantasy from reality, such as

when J.C. stated in the interview that he lived with cartoon

characters.    He found this particularly significant in light of

J.C.'s developmental capacity equivalent to that of a three-

year-old child.     The expert also criticized the detective for

"selectively investigating [the child's] statements" by using

leading questions, and by tending to pursue only the child's

inculpatory    statements   that    conformed         to   a   theory    of     sexual

assault, but not statements which undercut that theory.

     The Judge's       Findings     of    Admissibility          Under      N.J.R.E.
803(c)(27)

    After considering these matters, the judge preliminarily

ruled that the statements J.C. made to G.K. after getting off of

the bus and to the detective during the interview were both

admissible under N.J.R.E. 803(c)(27).             Tracking the requirements

of that hearsay exception, the judge found that "there is a

probability that [each] statement is trustworthy on the basis of

the time[,] content[,] and circumstances of the statement[s]."

    The judge acknowledged that the detective did ask a few

leading   questions,      but    found    those       questions      were      not     a


                                    12                                        A-2238-14T3
"decisive          determining             factor"      in      the          analysis          of

trustworthiness.             The    judge     also   found     that      the     detective's

failure       to    delve      into    J.C.'s        ability       to       understand        the

difference         between       telling     the     truth     and      a    lie   did        not

"automatically" render the child's statements untrustworthy.

       The     judge      was       unpersuaded       by     the        defense     expert's

criticisms of the interview.                  Instead, the judge concluded that

"the departures, if any, from what would be a strict protocol or

strict       standards      of     questioning       . . .     did       not     cause      this

[child's] statement to [the detective] to become untrustworthy."

       With    respect       to    J.C.'s     initial      statement        to   G.K.     after

getting      off    the   bus,      the     judge    found     significant         that       the

assertion was "completely spontaneous."                      Appellant had failed to

show   anything        "that       would    render    that     statement         not     to    be

probably trustworthy in the totality of the circumstances."

       As a caveat, the judge did state that his ruling to admit

J.C.'s hearsay statements was expressly "conditioned upon the

alleged victim being available to testify."

       The Judge's Findings of J.C.'s Incompetency

       Following her opening statement, the prosecutor called J.C.

to the stand.          The judge noted that defense counsel had filed a

pretrial motion challenging J.C.'s competency.                                 Consequently,



                                             13                                        A-2238-14T3
the judge conducted a preliminary examination of J.C. to assess

his competency before the child's trial testimony proceeded.

    During     the    preliminary     examination,       the   judge   posed     a

series of questions to J.C., supplemented by a few more asked by

the prosecutor.        The questions delved into J.C.'s ability to

discern    truth     from   lies,    and    whether    J.C.    understood     the

importance of telling the truth.

    Many of J.C.'s responses to these questions posed in the

courtroom reflected his confusion between reality and fantasy,

and a lack of recognition of his obligation to tell the truth.

For example, J.C. agreed that it would be the "truth" to call a

"red" toy and a "red" tie "green".              He also agreed that if he

were told a "dinosaur" was a "chicken," that would also be the

"truth".    When asked whether it would be the truth or a lie to

call the courthouse a McDonald's, J.C. ambiguously responded,

"Yes."     He stated several times that he did not know what the

truth is, or know the difference between the truth and a lie.

He denied knowing whether he was supposed to tell his mother the

truth or a lie.       He also nonsensically referred to the truth as

a "dinosaur" and "chicken butt."

    Given    these     problematic    responses,       the   judge   ruled   that

J.C. was not competent to testify.            But in light of the proviso

within    N.J.R.E.    803(c)(27)(c)       permitting    tender-years    hearsay

                                     14                                 A-2238-14T3
statements despite a child declarant's incompetency, the judge

allowed     the     prosecutor     to       proceed    with         J.C.'s      direct

examination.

      The    prosecutor     attempted       on   direct        to    focus      J.C.'s

attention to the alleged incident on the school bus, but she was

thwarted in that endeavor by J.C. stating several times that he

had   actually     walked   to   summer     school.     At      that    point,      the

prosecutor requested that the judge allow her to recall J.C. to

the stand on another day, because the child had not taken his

medication for several hours.

      Defense counsel objected to the State being given a second

attempt to establish J.C.'s competency.               The judge overruled the

objection,        exercising     his    discretion        to        oversee      court

proceedings under N.J.R.E. 611.              Among other things, the judge

noted that J.C. has "several types of diagnosed mental health

disabilities," and that since the State had not requested J.C.

to testify via a closed-circuit video, there were "too many

people in the courtroom" when J.C. first testified.

      The Resumption of the Trial and the Court's Renewed Finding
      of J.C.'s Incompetency

      The case resumed several days later.              J.C. was recalled to

the stand by the prosecutor, who renewed an attempt to establish

the child's competency.          However, J.C. again showed difficulty


                                       15                                     A-2238-14T3
discerning truth from fiction, stating that it would be "right"

to call a spider a flower, and to call a red spider black.

Revealingly, J.C. also answered "no" when he was asked, "if you

tell   mommy     something    that    did    not   happen,    would       you    get    in

trouble?"

       Despite    J.C.'s     continued      shortcomings     as     a    witness,      the

prosecutor pivoted to the substantive allegations of this case.

She asked the child, "Did anything happen this summer on the

school bus?"       J.C. replied in the affirmative, elaborating that

"[A.R.] touched me."         J.C. added that A.R. had touched his "pee-

pee" and "butt."        He then identified A.R. in the courtroom as

the person who had touched him.

       Defense counsel conducted a brief cross-examination of J.C.

During    that    questioning,       J.C.    reiterated      that       appellant      had

touched his "pee-pee" and "butt," as well as "all over."                             J.C.

agreed that he sat with the "small kids" near the front of the

bus.     J.C. also agreed that there was another child on the bus

who had the same first name as appellant.

       At that point, in light of J.C.'s continued problems with

exhibiting a grasp of the basic concepts of truth-telling, the

trial judge reiterated his earlier finding that the child was

not competent to testify.            The judge amplified his reasoning as

follows:

                                       16                                       A-2238-14T3
     My decision with regard to the issue of
competency is that the witness was not
competent.   And I'm going to state now for
the record my reasons why I'm saying that,
but there are three elements of the issue to
determine the issue of competency.

     Number one is that the Court must be
satisfied that the witness, in this case the
child, understands the difference between
right and wrong.   I think that some of the
answers that [J.C.] gave do indicate that he
knows the difference between right and
wrong[,] although there were some answers
also that it was not clear that he knew that
difference.     I think he answered the
questions truthfully but there were a couple
of answers that he gave -- for example, he
stated that the spider -- and, by the way,
as he was answering questions, he had a toy
spider which was like about more or less
three inches in diameter and the top of the
spider was red but the part underneath the
spider and the legs were grey colored.
There were a couple of times where he gave
answers which were not clear, whether he
knew the difference between the right and
the wrong answer.

     For example, the assistant prosecutor
asked if she said that the spider was black,
would that be right, I think he said right
to that, and that's an example of a couple
of   times   when  his   answers  were   not
consistently accurate in reflecting right
versus wrong. However, I do think that most
of the times he did seem to answer the
questions correctly.

     Now, the other aspect of the inquiry as
to competency is that the witness must know
that to tell the truth is right.        That
aspect, I'm not sure.   I was not satisfied
that the witness knows that to tell the
truth is right in the moral sense of the

                   17                          A-2238-14T3
              word right. While I think that most of the
              answers were truthful, I am not satisfied
              that he knew that to tell the truth is right
              and many, if not most, of the answers that
              he gave that have to do with that did not
              reflect an understanding that he knows that
              to tell the truth is the right thing.

                   And thirdly, the witness, in this case
              the child, alleged victim, must understand
              that he or she will be punished if he or she
              lies to the Court. There was no answer -- I
              don't -- I think there was only like one or
              two questions in that regard and the answers
              that the witness gave did not show that he
              knew that if he lied, that there would be a
              consequence, a negative consequence to him.

                   So of the three aspects that the Court
              must be satisfied of, I think that -- I
              think he was for the most part truthful.
              However, I'm not satisfied that his answers
              indicated that he knew that to tell the
              truth was right and certainly not at all
              that he understood that he would be punished
              or that there would be consequences if he
              lied to the Court. So, for those reasons, I
              do find that the witness was not competent.

              [(Emphasis added).]

      After    the     judge    sustained   appellant's         objection   to    the

State   calling      J.C.'s     mother     as    an    impromptu    witness,      the

prosecution rested.        The defense then moved for dismissal based

on (1) the fact that the alleged victim lacked competency and

was therefore unavailable; and (2) a claimed insufficiency of

the evidence.        The judge rejected both arguments.              In doing so,

the   judge    noted    that,    although       J.C.   lacked    competency      as   a


                                      18                                    A-2238-14T3
witness,      he     had       been        "consistent"      with      respect     to    his

allegations of improper touching, both in his earlier hearsay

statements and in the courtroom.

       The Defense Proofs

       The defense called three witnesses:                         the driver and the

aide   who    were       on    the     bus    on    the    day    in   question,       and   a

transportation liaison employed by the board of education.                                The

aide testified that she was responsible for seating the "small

kids in the front and the big kids . . . in the back[.]"                                  She

explained that she sits in the middle of the bus, so she can

keep   an    eye    on    both       the    small    and   big    kids    and    keep   them

separated.         The aide asserted that she did not notice anyone

pulling another student's pants down on the day in question.

Additionally, no one said anything to her about an incident

occurring that day.

       The bus driver similarly testified that he did not notice

anything     unusual          taking    place       that   day.        According   to     the

driver, A.R. would be considered one of the "[b]ig kids," and

that the students were seated on the bus by height.

       Lastly,     the     transportation           liaison      testified      that    there

were two children with appellant's first name on the bus, one

who was enrolled in elementary school and the other in high

school.      The liaison agreed that the "whole entire [bus] trip

                                              19                                   A-2238-14T3
[was]      really     very      short,"     approximately            twenty     to        thirty

minutes.

      The Court's Adjudication of Delinquency

      Following       summations,         the    trial        judge    issued        an    oral

opinion concluding that the State had met its burden of proof,

and   adjudicating        A.R.    delinquent.            In   particular,       the       judge

determined that A.R. had "touched the victim on the victim's

penis underneath his clothes."

      As    part     of   his     fact-finding,        the     judge    adopted           J.C.'s

specific     assertion       to   the     detective       that,      when    the     touching

occurred, "other children laughed at [him]," even though that

particular       claim    had     not   been     repeated       in    J.C.'s       courtroom

testimony.          The   judge     rejected       the    defense's         suggestion       of

mistaken identity, finding that although "there may have been

another minor on the bus also named [A.] . . . the juvenile in

the courtroom was the one identified by both [G.K.] and by the

victim."

      Reflecting again on J.C.'s credibility, the judge repeated

his   earlier       finding     that    the     boy   was     "consistent"         with      his

account, even though he was not competent to testify.                                 On the

whole,     the   judge    determined        that      J.C.'s    testimony       about        the

incident on the bus was truthful, "given the consistency of



                                           20                                        A-2238-14T3
everything that the victim said right after the incident and

[his] statement to the detective and in this courtroom."

    As a disposition for appellant's offense, the judge placed

him on a two-year period of probation.      The two years were

designated to run concurrently with another probationary term

that A.R. was already serving for another juvenile offense. The

judge also required that A.R. be admitted into a program where

he could receive sex offender treatment.

    The Appeal and the Amici

    A.R. has raised the following issues on appeal:

         POINT ONE

         THE   IMPROPER  ADMISSION  OF   THE  CHILD'S
         UNRELIABLE OUT-OF-COURT STATEMENT REGARDING
         ALLEGED SEXUAL ABUSE DENIED THE JUVENILE THE
         RIGHT TO CONFRONT WITNESSES AND THE RIGHT TO
         DUE PROCESS OF LAW AND A FAIR ADJUDICATION
         PROCEEDING.

         POINT TWO

         THE COURT ERRED IN BASING THE ADJUDICATION
         OF DELINQUENCY UPON THE VICTIM'S TESTIMONY
         WHERE THE COURT FOUND THE VICTIM INCOMPETENT
         TO TESTIFY.

         POINT THREE

         BECAUSE J.C. WAS FOUND INCOMPETENT AS A
         WITNESS, HE WAS NOT AVAILABLE FOR MEANINGFUL
         CROSS EXAMINATION, AND THUS, ADMISSION OF
         HIS    HEARSAY   STATEMENT    VIOLATED   THE
         CONFRONTATION CLAUSE. (Not Raised Below).



                               21                          A-2238-14T3
            POINT FOUR

            THE ADJUDICATION OF DELINQUENCY MUST BE
            REVERSED   BECAUSE  THE   EVIDENCE DID NOT
            ESTABLISH THE JUVENILE'S GUILT OF SEXUAL
            ASSAULT BEYOND A REASONABLE DOUBT.

       After the parties filed their appellate briefs, we invited

two amici to participate:          the Attorney General and the John J.

Gibbons    Fellowship    in   Public    Interest       and   Constitutional     Law

(the   "Gibbons     Fellowship").           We   extended     those   invitations

because     of    appellant's      constitutional            challenge    to    the

incompetency proviso in N.J.R.E. 803(c)(27), and also in light

of the most recent Confrontation Clause jurisprudence emanating

from the United States Supreme Court.5                   The amici graciously

accepted    our    invitations,    providing       helpful     briefs    and   oral

arguments on the important issues before us.

       In its amicus brief and at oral argument, the Attorney

General has agreed with the prosecutor that the incompetency

proviso    is     constitutional     under       the    Confrontation     Clause,

5
   The significance of the constitutional issue has been
underscored by the observation in a leading New Jersey treatise
on evidence law, stating that "[i]t is unclear, given the New
Jersey Supreme Court's rejection of Subsection (c)(ii) [of
N.J.R.E. 803(c)(27)] based on Crawford, whether a criminal
defendant's   rights   under   the   Confrontation   Clause   are
sufficiently protected" under the proviso within the rule
deeming incompetent child witnesses to be "available" to
testify.   See Biunno, Weissbard & Zegas, Current N.J. Rules of
Evidence, ("Biunno") comment 6 on N.J.R.E. 803(c)(27) (2016).



                                       22                                 A-2238-14T3
assuming we reach that issue, and has joined with the prosecutor

in urging affirmance of this juvenile disposition.               The Gibbons

Fellowship, meanwhile, has argued that J.C.'s hearsay statements

were   improperly    admitted   under    N.J.R.E.   803(c)(27)    and   that,

even if the hearsay is deemed admissible under               the evidence

rules, appellant's confrontation rights were violated because

his counsel had no meaningful opportunity to cross-examine this

incompetent child in court.         The Gibbons Fellowship has thus

joined with appellant's counsel in urging reversal.

                                   II.

                                    A.

       The Genesis of the Tender-Years Exception

       The tender-years hearsay exception, presently codified at

N.J.R.E. 803(c)(27), was crafted by our State Supreme Court in

1988 in D.R., supra, 109 N.J. at 348.          The Court sought in D.R.

to balance, on the one hand, the difficulties of young child

victims testifying in court about acts of alleged sexual abuse,

and, on the other hand, the interests of criminal defendants and

juveniles    in     effectively   confronting       and   rebutting      such

allegations as part of their right to a fair trial.

       In D.R., the defendant was charged with and convicted of

sexually abusing his granddaughter.           Id. at 351.        The State's

case was primarily based on the defendant's confession, which he

                                   23                               A-2238-14T3
later repudiated, and the out-of-court statement of the child

victim,    who       was     age       three    at    the       time     of     trial      and   found

incompetent          to    testify.            Id.    at    353-55.           The     trial         court

determined       after       a     hearing       that       the     child       victim        had     not

adequately       shown       the       ability       at    her     age    "to     deal       with     the

concept of lying and telling the truth."                                   Ibid.         This court

found on appeal that the victim's out-of-court statements were

not admissible under any of the recognized hearsay exceptions.

See State v. D.R., 214 N.J. Super. 278, 287-88 (App. Div. 1986).

However, we also perceived the need for the adoption of a new

exception       to    the     evidence         rules       allowing       hearsay       from     child

abuse victims to be admitted in certain circumstances, where

there     are        "sufficient         indicia           of     reliability           to     justify

admission[.]"             Id. at 296-98.

    On     review,          the    Supreme       Court          reversed      our    decision         and

remanded the case.                 D.R., supra, 109 N.J. at 352.                             While the

Court agreed with the need for a special hearsay exception for

child     sexual          abuse    victims,          it     also        found       that      "such     a

fundamental          change       in    the     hearsay          rule    solely       by      judicial

decision is inconsistent with the procedure set forth in the

Evidence Act [of] 1960, that involves collaboration among all

three branches of government." Ibid. (citing N.J.S.A. 2A:84A-33

to -45).

                                                24                                            A-2238-14T3
       Having acknowledged the other branches' collaborative role

in adopting new evidence rules, the Court in D.R. went on to

discuss at length the policies favoring a "tender-years" hearsay

exception.      The Court recognized that significant proof problems

can arise in child sexual abuse prosecutions, because "testimony

by     the   victim    is    often   the     indispensable    element    of    the

prosecution's case."          Id. at 358.        The Court further recognized

that     the   courtroom      setting      is    generally   "intimidating      to

children and often affects adversely their ability to testify

credibly."     Id. at 360.

       The Court noted that such evidentiary challenges "would be

alleviated by a modification of the hearsay rule that addresses

the admissibility of out-of-court [child] victim statements[.]"

Id. at 351.           As the Court recognized, hearsay statements by

young sexual assault victims are often "highly credible because

of [their] content and the surrounding circumstances."                   Id. at

359.     On the other hand, the Court likewise acknowledged "the

substantial     constitutional       interests       of   defendants    in    such

proceedings."     Id. at 363.

       Mindful of these competing interests of the State and of

defendants, the Court set forth in Appendix A to its opinion in

D.R. an amendment to the Rules of Evidence creating a tender-

years exception.            Id. at 378.         In shaping that new proposed

                                        25                              A-2238-14T3
rule,     the    Court       considered        recommendations      on        the    subject

developed        by     the     American         Bar      Association          ("the       ABA

Recommendations"), id. at 358-59, a host of law review articles

examining child sexual abuse prosecutions, id. at 359 n.3, and

statutes and case law from other jurisdictions addressing the

subject.    Id. at 361-62.

    Overall,          the     Court      found       "thoroughly    persuasive"            the

reasoning       underlying      the      ABA     Recommendations,         the       laws    of

several other states, and the analysis of many commentators that

supported       the    adoption     of    a     hearsay      exception    allowing         the

admission,        in        circumstances            where     a    probability             of

trustworthiness         is    shown,      of     a    young    child's        out-of-court

statement concerning acts of sexual abuse.                         Id. at 363.             The

Court found such a new hearsay exception, when combined with

methods to allow child victims to testify at trials through

closed-circuit video, "will enable the judicial system to deal

more sensibly and effectively with the difficult problems of

proof inherent in child sex abuse prosecutions."                        Ibid.

    The Incompetency Proviso

    One of the key facets of the tender-years exception drafted

by the Court in D.R. is the proviso within the final portion of

N.J.R.E. 803(c)(27), the focus of this appeal.                            That proviso

recites    that       "no   child     whose     statement     is   to    be    offered      in

                                           26                                       A-2238-14T3
evidence pursuant to this rule shall be disqualified to be a

witness in such proceeding by virtue of the requirements of

[N.J.R.E.] 601."6

       The Court recommended this proviso after concluding, as a

matter of policy, that a competency disqualification should not

apply to the proposed hearsay exception.            Id. at 369.    In this

regard,    the   Court   noted   that,   as   a   practical   matter,   "[a]

finding that a child-victim is incapable of understanding the

duty . . . to tell the truth, and thus incompetent, is difficult

to reconcile with a ruling that admits into evidence, insulated

from cross-examination, the out-of-court statements of the same

child made several months prior to trial."           Id. at 370 (internal

citations omitted).

       On the whole, the Court in D.R. was persuaded by both the

ABA Recommendations and the "growing trend among states . . .

6
    N.J.R.E. 601 provides that:

            Every person is competent to be a witness
            unless (a) the judge finds that the proposed
            witness    is   incapable    of   expression
            concerning the matter so as to be understood
            by the judge and jury either directly or
            through interpretation, or (b) the proposed
            witness is incapable of understanding the
            duty of a witness to tell the truth, or (c)
            except as otherwise provided by these rules
            or by law.

            [(Emphasis added).]


                                   27                              A-2238-14T3
[to] abolish[] the presumption that a child's incompetent and

[instead] leave[] to the jury the determination of the weight

and credibility of a child's testimony."                    Id. at 368.      The Court

cited    to   leading      evidence    law     scholars       such    as    Professors

Wigmore and McCormick, whose treatises favor the admission of

such    statements    by     child    witnesses       "for    what    it    is    worth,"

allowing the weight of their statements to be evaluated by the

trier of fact.       Ibid.

       Rather than require young victims of alleged sexual assault

to meet the general threshold for competency under N.J.R.E. 601,

the Court instead fashioned a tender-years exception that would

admit the hearsay declarations if they are specifically found by

the     court    to        have      sufficient         indicia        of        probable

trustworthiness.        Id. at 370.7          As the Court made clear, this

trustworthiness       limitation      is     needed    to    assure    "the       equally

significant interests of the defendant, who seeks to exercise

7
  This "indicia of trustworthiness" concept derives from the
United States Supreme Court's prior opinion in Idaho v. Wright,
497 U.S. 805, 815, 110 S. Ct. 3139, 3146, 111 L. Ed. 2d 638, 652
(1990). In 2004, in Crawford, supra, the Court repudiated Idaho
v. Wright and the related test of Ohio v. Roberts, 448 U.S. 56,
66-67, 100 S. Ct. 2531, 2539, 65 L. Ed. 2d 597, 607-08 (1980),
under the Confrontation Clause and replaced it with the present
"testimonial" standard. 541 U.S. at 51-53, 124 S. Ct. at 1364-
65, 158 L. Ed. 2d at 192-94.      Even so, nothing prevents the
"indicia of trustworthiness" standard from continuing to be used
as a test of admissibility under state evidence rules, subject
to the constraints of the Confrontation Clause.


                                        28                                       A-2238-14T3
the   basic      rights      of    confrontation          and    cross-examination            so

essential       to    the    jury's     duty     to    assess     the    credibility          of

witnesses."          Id. at 369.

      The Court did temper its approach in D.R. with a caveat

that, if the child of tender years is available to appear at

trial, he or she "should testify . . . in order to afford the

jury an opportunity to assess the child's credibility and to

afford    the    defendant        the   right        of    confrontation        and     cross-

examination."          Id. at 371.          In addition, the Court expressly

indicated that it was not considering "the recognition of any

other rights that may be asserted by a defendant in a sexual

abuse    prosecution         relating     to     a    child     victim's       out-of-court

statements."         Ibid. at n.10 (emphasis added).

      Codification and Application of the Exception

      Implementing the decision in D.R., the tender-years hearsay

exception was adopted in 1989, and numerically codified at that

time as Evidence Rule 63(33).                    See also Biunno & Guarini, New

Jersey Rules of Evidence: 1990 Edition 658-59.                          The language of

Rule 63(33), as enacted, mirrored the Court's proposed language.

See D.R., supra, 109 N.J. at 378.

      As part of the comprehensive renumbering and revision of

the   entire     body       of   Evidence    Rules        in   1993,    Rule    63(33)      was

replaced by N.J.R.E. 803(c)(27).                      The operative terms of the

                                            29                                        A-2238-14T3
rule remained substantially the same.8             See N.J.R.E. 803(c)(27);

see also Amendatory Report of the Supreme Court's Committee on

Evidence (May 17, 1993).             The only other change in the Rule

occurred     in    2005   to    eliminate    gender-based      language.          See

Biunno, supra, comment 1 on N.J.R.E. 803(c)(27).

      Since       the   time   of    the    adoption   of     the   tender-years

exception, it has frequently been used in sex crime prosecutions

involving young child victims.              Sometimes the courts have found

the child's hearsay admissible under the criteria of the Rule.

See, e.g., State v. T.E., 342 N.J. Super. 14, 36 (App. Div.),

certif. denied, 170 N.J. 86 (2001); State v. Delgado, 327 N.J.

Super. 137, 147-48 (App. Div. 2000).               In other instances, our

courts   have      excluded    the   child's   hearsay      statement,    or   have

required a stronger foundation to justify its admission.                       See,

e.g., State v. D.G., 157 N.J. 112, 125-27 (1999) (remanding for

further proceedings as to a child's statements to a relative,

and   also    excluding        the   child's    statements      made     during    a

subsequent "re-interview"); State v. R.M., 245 N.J. Super. 504,

8
  During the late 1990s, an amendment to N.J.R.E. 803(c)(27) was
proposed, but ultimately rejected, that would have changed the
age of the child from a bright-line cutoff of age twelve to a
child of "tender age" only.     The failed amendment would have
also deemed out-of-court statements inadmissible if the child
was available to testify competently. See Report of the Supreme
Court Committee on the Rules of Evidence 19-22 (1998).



                                       30                                 A-2238-14T3
516-18 (App. Div. 1991) (remanding for further hearing on the

trustworthiness of a child's statement that a trial court had

excluded under the Rule).

                                  B.

     Confrontation Clause Jurisprudence Since Crawford

     The     application    of   N.J.R.E.   803(c)(27)    has    been

substantially affected by the momentous decision of the United

States Supreme Court in Crawford, supra, and the series of post-

Crawford decisions construing the Confrontation Clause.9

     The Confrontation Clause guarantees an accused the right

"to be confronted with the witnesses against him."       U.S. Const.

amend. VI.     The recognized objective of the Confrontation Clause

is "to ensure the reliability of the evidence against a criminal

defendant by subjecting it to rigorous testing in the context of

an adversary proceeding before the trier of fact."         State v.

Castagna, 187 N.J. 293, 309 (2006) (quoting Maryland v. Craig,

497 U.S. 836, 845, 110 S. Ct. 3157, 3163, 111 L. Ed. 2d 666, 678

(1990)).     This goal is ordinarily achieved by the opportunity to


9
  To date, the cognate language of the Confrontation Clause
within the New Jersey Constitution, N.J. Const., art. I, ¶ 10,
has been construed coextensively with the federal counterpart.
See, e.g., State v. Roach, 219 N.J. 58, 74 (2014); State v.
Cabbell, 207 N.J. 311, 328 n.11 (2011). We therefore apply the
same   analysis   to   both  appellant's  federal   and  state
confrontation arguments.


                                 31                         A-2238-14T3
cross-examine witnesses effectively, which is an "essential and

fundamental requirement" of a fair trial.    Pointer v. Texas, 380

U.S. 400, 405, 85 S. Ct. 1065, 1068, 13 L. Ed. 2d 923, 927

(1965); see also Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.

Ct. 292, 294, 88 L. Ed. 2d 15, 19 (1985); see also State v.

Chun, 194 N.J. 54, 139 (2008).

    It is well settled that juveniles charged with offenses

that would be crimes if they had been committed by adults, such

as appellant here, have equivalent rights to a fair trial.     See,

e.g., In re Winship, 397 U.S. 358, 365, 90 S. Ct. 1068, 1073, 25

L. Ed. 2d 368, 376 (1970).        Those rights have been held to

include the right of confrontation.    See State ex rel. J.A., 195

N.J. 324, 329 (2008) (holding that the admission of testimonial

hearsay statements violated a juvenile's "Sixth Amendment right

to confront the witnesses against him").

    In Crawford, supra, 541 U.S. at 59, 124 S. Ct. at 1369, 158

L. Ed. 2d at 197, the Supreme Court construed the historical

intent of the framers of the Confrontation Clause.         Sharply

breaking with several of its prior precedents, the Court held

that the Clause bars the admission of "[t]estimonial statements

of witnesses absent from trial" admitted to prove the truth of

the matter asserted, except "where the declarant is unavailable,



                                 32                       A-2238-14T3
and only where the defendant has had a prior opportunity to

cross-examine."    Ibid.

    Since issuing its seminal opinion in Crawford in 2004, the

Court has further refined these concepts, including the meaning

of the pivotal notion of a "testimonial" statement. In Davis,

supra, 547 U.S. at 822, 126 S. Ct. at 2273-74, 165 L. Ed. 2d at

237, the Court delineated what has become known as the "primary

purpose" test for deciding whether or not a declarant's hearsay

statement is testimonial for purposes of Confrontation Clause

analysis.      The eight-justice majority in Davis explained that

standard as follows:

            Statements are nontestimonial when made in
            the course of police interrogation under
            circumstances objectively indicating that
            the primary purpose of the interrogation is
            to enable police assistance to meet an
            ongoing emergency. They are testimonial when
            the circumstances objectively indicate that
            there is no such ongoing emergency, and that
            the primary purpose of the interrogation is
            to   establish    or   prove   past   events
            potentially   relevant  to   later  criminal
            prosecution.

            [Ibid. (emphasis added).]

    Subsequently, in Michigan v. Bryant, 562 U.S. 344, 131 S.

Ct. 1143, 179 L. Ed. 2d 93 (2011), a divided Court further

illuminated the primary purpose test.         The majority in Bryant,

except   for   Justice   Thomas   in   concurrence,   concluded   that     a


                                  33                              A-2238-14T3
mortally-wounded shooting victim's statements on the street to

police officers were non-testimonial because the primary purpose

of the conversation was to deal with the ongoing emergency of

the recent shooting and a missing firearm.                  Id., 562 U.S. at

370-78, 131 S. Ct. at 1162-67, 179 L. Ed. 2d at 104-09.                       The

dissenting Justices, meanwhile, concluded that the interview's

primary    purpose     was    to     generate    evidence     for   a     future

prosecution. Id., 562 U.S. at 380-96, 131 S. Ct. at 1168-77, 179

L. Ed. 2d at 120-31.          The majority in Bryant did clarify that

the   "primary    purpose"    of     an    officer's   conversation      with    a

declarant is to be evaluated on an objective basis, rather than

turning upon the personal subjective intentions of either the

declarant or the police officers who interviewed him.                   Id., 562

U.S. at 370-71, 131 S. Ct. at 1162-63, 179 L. Ed. 2d at 114-16.

      Most recently, in Ohio v. Clark, ___ U.S. ___, 135 S. Ct.

2173, 192 L. Ed. 2d 306 (2015), the Supreme Court classified as

non-testimonial various hearsay statements that a three-year-old

boy made to his preschool teachers after they had noticed his

eyes looked bloodshot.        The boy stated to the teachers that the

defendant, his mother's boyfriend, had injured him.

      With the exception of Justice Thomas, who concurred in the

result    based   on    his    own    personal     interpretation       of    the

Confrontation Clause, all other eight Justices in Ohio v. Clark

                                      34                                A-2238-14T3
concluded that the primary purpose of the child's conversation

with    his    teachers   was     not    "to   gather    evidence     for    [the

defendant's] prosecution."         Id., ___ U.S. at ___, 135 S. Ct. at

2181, 192 L. Ed. 2d at 316 (Alito, J., majority opinion).                     See

also id., ___ U.S. at ___, 135 S. Ct. at 2184, 192 L. Ed. 2d at

318-19 (Scalia, J., concurring) (noting that the primary purpose

of the child's conversation was "not to invoke the coercive

machinery of the State against [the defendant]").                   The Court's

majority opinion underscored that the "first objective" of the

discussion was to protect the child, that it was "informal and

spontaneous," and that it took place "in the informal setting of

the preschool lunchroom and classroom."             Id., ___ U.S. at ___,

135 S. Ct. at 2181, 192 L. Ed. 2d at 316.                  Consequently, the

child's hearsay statements to his teachers were constitutionally

admissible at trial against the defendant, even though the child

had been found incompetent to testify. Id., ___ U.S. at ___, 135

S. Ct. at 2178, 192 L. Ed. 2d at 312-13.

                                         C.

       Post-Crawford's Impact in New Jersey

       The    Supreme   Court's    jurisprudence    in    Crawford     and    its

progeny has had a substantial impact upon criminal and juvenile

prosecutions in our State.              See, e.g., State v. Michaels, 219

N.J. 1, 15-32 (2014) (tracing what our Supreme Court termed the

                                        35                             A-2238-14T3
"turmoil over confrontation rights" spawned by Crawford and the

cases applying it).

    For     example,     in    J.A.,    supra,    195    N.J.    at   348-51,    our

Supreme Court reversed a juvenile's delinquency adjudication for

robbery   because     the     trial    court   had   improperly       admitted   and

relied upon an unavailable eyewitness's hearsay statement to the

police    about    observing    the    robbery    and    the    robber's   flight.

Applying the "primary purpose" test of Davis, the Court ruled

that there was no "ongoing emergency" to justify the hearsay's

admission,      and   that    the   primary    purpose    of    the   eyewitness's

statements to the police was to establish or prove past events

germane to a potential future prosecution.                Id. at 350.

    By contrast, in State v. Buda, 195 N.J. 278 (2008), a case

factually similar to what later arose in Ohio v. Clark, a 4-3

majority of our Court held that a battered child's statements to

his mother in the car, and later during his hospital admission

to a Division of Youth and Family Services ("DYFS")                        worker,

detailing physical abuse by the defendant, were not testimonial.

Hence,    the     admission    of     that    hearsay    did    not   violate    the

defendant's confrontation rights.

    In Buda, the Court majority ruled that the primary purpose

of the hearsay conversations was not to gather evidence for a

future prosecution.           Id. at 304-08.         With respect to the DYFS

                                        36                                 A-2238-14T3
worker's interview, the majority was persuaded that the worker

was merely "gathering data in order to assure a child's future

well-being."          Id.    at   308.10        However,       the       majority     in     Buda

cautioned that a child's statements about a defendant's wrongful

acts might be testimonial if the DYFS worker functioned during

such    an    interview       "predominantly           as     an        agent/proxy     or    an

operative for law enforcement in the collection of evidence of

past crimes for use in a later criminal prosecution."                                  Id. at

307.

       The Cross-Examination Right

       Our State Supreme Court has also carefully applied a key

corollary     principle       of    Crawford,          which        instructs       that     the

Confrontation Clause does not prohibit the use of a declarant's

prior    testimonial         statements,        so     long        as     "the   [declarant]

appears for cross-examination at trial[.]" Crawford, supra, 541

U.S. at 59 n.9, 124 S. Ct. at 1369 n.9, 158 L. Ed. 2d at 198

n.9.    The   Court    has    construed         that   appearance           requirement       to

connote a right to cross-examine the declarant.




10
  Justice Albin and two other justices dissented in Buda as to
the child's hearsay statements to the DYFS worker, finding that
the dual primary purposes of that interview included an
objective "to elicit information about a possible crime."   Id.
at 318 (Albin, J., dissenting).


                                           37                                         A-2238-14T3
    For instance, in State v. Nyhammer, 197 N.J. 383 (2009),

the Court upheld the trial court's admission of a videotaped

police    interview        of    a       nine-year-old         child      who    accused   the

defendant, her uncle, of sexual assault.                               The Court readily

found that, based on Crawford, "there is no question that [the

child's]    videotape       statement            –    given    to     a    law   enforcement

officer     investigating            a    crime       –   constitute[d]          testimonial

hearsay for Sixth Amendment purposes."                          Id. at 412.          However,

the Court also found that the defendant in Nyhammer had not been

denied    his     rights    of       confrontation        because         his    counsel   had

received the opportunity to attempt to cross-examine the child

when she took the stand at trial.                     Id. at 412-13.

    Even though the child victim in Nyhammer had been unable on

direct     examination          by   the     prosecutor         to     repeat     the   "core

accusations" detailing the defendant's assaultive conduct, the

Court     found    that     defendant's              counsel    had       made   a   tactical

decision to refrain from cross-examining the child about those

allegations.       Id. at 413-14.                The Court reasoned that "[h]aving

chosen that strategic course . . . defendant cannot now claim

that he was denied the opportunity for cross-examination."                                 Id.

at 414.

    In contrast to the situation in                            Nyhammer, our Court in

Cabbell,    supra,     207       N.J.       at    311,    reversed         the   defendants'

                                             38                                      A-2238-14T3
convictions in a homicide case, in which the trial court had

admitted hearsay statements against them made by an eyewitness

when he was interviewed by the police.                   As in Nyhammer, the

Court readily determined that a right of confrontation applied.

In fact, the State did not dispute in Cabbell that one of the

witness's       statements       during     the     police       interview      was

"testimonial."      Id. at 330.       The sole Sixth Amendment issue in

Cabbell   was    whether   the    defendants'      confrontation      rights    had

been honored because their counsel had been provided with a

chance to cross-examine the eyewitness at a Rule 104 preliminary

hearing before the trial judge.            Ibid.

    The Court majority ruled in Cabbell that defense counsel's

cross-examination of the declarant at the hearing before trial

was insufficient to comply with the Constitution, and that the

defendants had been deprived of their rights of confrontation

because the witness was never produced before the jury, despite

defense   counsel's    request      that    she    so   appear   at   that    later

proceeding.      Id. at 331.      The trial judge had denied the request

because the witness had been resistant to testifying.                        Id. at

322. The majority stressed that a trial court "has no authority

to deny defendants their constitutional right of confrontation

merely because it believes that cross-examination will be of

little use."     Id. at 333.

                                     39                                  A-2238-14T3
       On the other hand, the majority in Cabbell further noted

that a defendant has no carte blanche right to cross-examine a

witness "in whatever way, and to whatever extent, the defense

might wish."      Ibid. (quoting Fensterer, supra, 474 U.S. at 20,

106 S. Ct. at 294, 88 L. Ed. 2d at 19).                  Instead, a defendant

only must be given the "opportunity to engage in 'otherwise

appropriate      cross-examination,'"        with   no   guarantee   that    the

cross-examination will be effective.            Ibid. (quoting Delaware v.

Van Arsdall, 475 U.S. 673, 680, 106 S. Ct. 1431, 1436, 89 L. Ed.

2d 674, 684 (1986).

       Crawford Applied to the Tender-Years Rule

       The Court instructively applied these Confrontation Clause

principles in a tender-years context in State v. Coder, 198 N.J.

451    (2009).     The    defendant    in    that   case   was   convicted    of

committing sexual assault of a three-year-old child.                   Id. at

460.    The assault occurred while the defendant and the victim

were in the basement of her apartment building, along with the

child's eleven-year-old friend.              Id. at 456.      The friend who

witnessed the assault immediately ran upstairs and notified the

victim's mother.         Id. at 457.       The mother then spoke with her

frightened daughter, who told her that the defendant had touched

her vagina and buttocks.       Ibid.        The State moved before trial to

admit the daughter's hearsay statement to her mother, relying

                                      40                              A-2238-14T3
upon N.J.R.E. 803(c)(27).          Id. at 458.          At an ensuing Rule 104

hearing, the daughter, then age four, was unable to recall or

speak about the incident.            Ibid.      The daughter did not testify

at the defendant's trial, but her hearsay statement was admitted

over objection.        Id. at 459.

       The   Supreme    Court    held     in    Coder   that,    because    of     her

inability to render a courtroom account of the incident for the

jury, the child victim was "unavailable" to testify.                            Id. at

467.    Hence, in order to admit the victim's hearsay, the State

was required to present under N.J.R.E. 803(c)(27)(c)(ii) other

"admissible evidence corroborating the act of sexual abuse[.]"

Id. at 466-68.         Because the older child who had witnessed the

incident     provided     such    corroboration,        the     Court    found     the

victim's hearsay admissible under the tender-years exception.

Id. at 468.

       Notably, the Court found no violation of the defendant's

right   of    confrontation      under    the    Crawford     doctrine     in    Coder

because      the   victim's      statements       to    her   mother     were      not

testimonial.       Id. at 469.       Finding the situation comparable to

the child victim's statement to his mother in Buda, supra, 195

N.J. at 304, the Court observed that the daughter's account to

her mother about what had happened to her a few minutes earlier

"lack[ed] any indicia that [it] resulted from law enforcement

                                         41                                 A-2238-14T3
efforts 'to establish or prove past events potentially relevant

to later criminal prosecution.'"                Ibid. (emphasis added) (citing

Davis, supra, 547 U.S. at 822, 126 S. Ct. at 2274, 161 L. Ed. 2d

at 237).

       A year later, the Court again applied these post-Crawford

principles to the tender-years exception in State v. P.S., 202

N.J. 232, 249 (2010).               There, the trial court admitted into

evidence under N.J.R.E. 803(c)(27) hearsay statements that an

eleven-year-old child had made to a child interview specialist

in a county prosecutor's office.                The child told the interviewer

that the defendant had sexually assaulted her on three occasions

several years earlier.             Id. at 241.        Because the video equipment

used    to    record   that    interview        had    malfunctioned,      the   State

instead presented the contents of the child's statements through

the    trial   testimony      of    the   interviewer.        Id.    at   245.     The

Supreme Court in P.S. agreed that the child's statements, as

recollected by the interviewer and as buttressed by her written

report, supported the trial court's finding that the statements

were   sufficiently     trustworthy        to    satisfy    the     requirements     of

N.J.R.E. 803(c)(27).          Id. at 254.

       P.S.     then    addressed         the     constitutional          issues     of

confrontation, applying Crawford's "new rule," which the Court

described as having "entirely changed the Confrontation Clause

                                          42                                 A-2238-14T3
landscape."         Id. at 249.        Although its discussion of the issue

was not extensive, the Court declared that the admissibility of

a child's tender-years hearsay statement, if it is testimonial,

must    now    be    conditioned       upon      three   requirements:               (1)   the

State's prior notice to defense counsel; (2) a pretrial judicial

finding       of    trustworthiness;         and,     most     importantly       for       our

present       purposes,      (3)   a   defendant's       "opportunity           to     cross-

examine the child at trial[.]"                Ibid. (citations omitted).

       That     third      requirement       specified        in    P.S.   negates         the

State's       option       under   N.J.R.E.         803(c)(27)(c)(ii)           to      avoid

producing a child who has made testimonial statements for cross-

examination         at     trial       by     offering        "admissible        evidence

corroborating the act of sexual abuse."                      P.S. signifies that the

State     in        such     testimonial           situations        can    no         longer

constitutionally           rely    upon          subsection        (ii)    of    N.J.R.E.

803(c)(27)(c).           Instead, to comply with Crawford, the State must

resort to subsection (i), which requires the child to "testif[y]

at the proceeding."11


11
   See also Biunno, supra, comment 6 on N.J.R.E. 803(c)(27)
(observing that P.S. resolved the "considerable doubt" about the
constitutionality of subsection (c)(ii) in the wake of Crawford,
now requiring that since "a testimonial statement of an absent
witness is subject to the Confrontation Clause," to admit such
testimonial statement by a child victim, the child "must be
available to testify at trial").


                                            43                                       A-2238-14T3
     P.S.   did    not   address,   however,       the   specific      issue    of

confrontation     presented   here,      i.e.    whether     the    tender-years

hearsay statements of a child who has been found incompetent to

testify as a witness nonetheless can be admitted against an

accused over objection.

                                    III.

                                      A.

     We now consider the heart of the matter.                Specifically, we

address     whether      appellant's       constitutional           rights      of

confrontation were violated by the trial court admitting, over

objection,12      the    incriminating          statements     of     J.C.,      a


12
  Although it was not contended in the State's responding brief
submitted by the prosecutor, the Attorney General as amicus
argues that we should not reach the Confrontation Clause issue
because appellant allegedly waived the issue by not expressly
invoking the Clause in his arguments to the trial court.      We
decline to adopt that waiver argument for several reasons.
First, an amicus on appeal generally should not present new
issues that were not raised by the parties. State v. Lazo, 209
N.J. 9, 25 (2012).   Second, although appellant's trial counsel
did not assert the words "Confrontation Clause" or "Crawford" in
her motion briefs and arguments, there is no doubt that she
objected to the admission of J.C.'s out-of-court statements, and
repeatedly complained about her inability to confront and cross-
examine J.C. effectively because of the child's incompetency.
The clear thrust of trial counsel's continuing objection
implicated a claimed denial of a right of confrontation.     Cf.
State v. Bass, 224 N.J. 285, 312 (2016). Third, it is unlikely
that the trial record here would have been materially different
had defense counsel explicitly argued that J.C.'s hearsay
statements were "testimonial" under Crawford.    In fact, as we
discuss, infra, the prosecutor specifically asked the detective
                                                     (continued)

                                    44                                  A-2238-14T3
developmentally-disabled child whom the trial court twice found

incompetent to testify.         For the reasons that follow, we agree

that the trial court deprived appellant of those vital rights in

certain respects.

       Although    courts     generally      prefer   to   steer     away   from

constitutional questions if their resolution is not essential to

a case, the confrontation issues posed by appellant here are

appropriate for decision.         For one thing, appellant concedes in

his brief that the hearsay statements of J.C. were admissible as

a    matter   of   state    evidence   law    under   N.J.R.E.     803(c)(27).13


(continued)
on redirect examination what his purpose was in interviewing
J.C.   Fourth, appellant's trial counsel could not have been
expected to anticipate the United States Supreme Court's opinion
in Ohio v. Clark, the Court's most recent clarification of
Confrontation Clause doctrine.      Fifth, the present appeal
provides a well-briefed suitable opportunity to resolve an
important unsettled question of constitutional significance
about the validity of the incompetency proviso in N.J.R.E.
803(c)(27).
13
   The Gibbons Fellowship does not join in that concession and
instead argues that, as a matter of statutory interpretation,
the incompetency proviso in N.J.R.E. 803(c)(27)(c) only applies
to subsection (ii) of the Rule and not to subsection (i) when
the child victim testifies in court.     We need not reach that
argument raised by solely this amicus, for the same reasons that
we need not reach the waiver argument raised for the first time
by the amicus Attorney General.    See Lazo, supra, 209 N.J. at
25.    In any event, we note in passing that the Gibbons
Fellowship's suggested construction of the proviso appears to
clash with the overall design and objectives of the evidence
rule set forth by the Court in D.R., supra.     The argument for
                                                     (continued)

                                       45                              A-2238-14T3
Appellant         instead     focuses      his     arguments           for     exclusion       on

constitutional grounds of the denial of confrontation and due

process.          Moreover,    the    Court      has     made     very       clear   that     the

admissibility of hearsay under state evidence rules, even if

they   are    firmly    rooted       in    the     law      and   in    practice,       can    be

trumped      by    Confrontation          Clause    principles.               See    Crawford,

supra, 541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203.

       In    appraising       the    constitutionality            of     the      tender-years

exception's        incompetency       proviso,         we    remain      mindful       of     the

general     presumption       of    constitutionality             that       applies    to    all

legislation,        including       our     evidence        rules.           "A    statute     is

presumed to be constitutional and will not be declared void

unless it is clearly repugnant to the Constitution."                                     Newark

Superior Officers Ass'n v. City of Newark, 98 N.J. 212, 222

(1985); see also State v. Buckner, 437 N.J. Super. 8, 24 (App.

Div. 2014), aff'd, 223 N.J. 1 (2015).                         For the reasons we now

discuss, we conclude that appellant has met his heavy burden to

prove such constitutional infirmity of the incompetency proviso,


(continued)
limiting the proviso to subsection (ii) also does not mesh with
the punctuation used within the rule, as the proviso appears
immediately after both subsections (i) and (ii) and is preceded
by a semicolon rather than by a comma. Further, the unpublished
opinion cited by the Gibbons Fellowship as support for its
construction is not binding. R. 1:36-3.


                                            46                                         A-2238-14T3
at   least   when     the   proviso   is     applied    to   a   child's    hearsay

statements made in a testimonial setting.

                                        B.

      The    record    in   this   case      strongly    supports    appellant's

contention that J.C.'s statements during his recorded interview

with Detective Abromaitis were, as a matter of constitutional

law, testimonial in nature.           The manifest, and perhaps singular,

"primary purpose" of the interview session was to gather facts

about a past sexual offense that could be used in a future

prosecution.

      When   specifically      asked       by   the    prosecutor   on     redirect

examination what was the purpose of the interview, the detective

responded, "We were informed that [J.C.] had made a disclosure

that . . . a boy named [A.] touched his penis on the school bus

on the way home from school."               Although the State now suggests

that perhaps the police interview was primarily conducted to

assure that A.R. would not ride the bus again with J.C. or other

potential child victims, that hypothesized alternative purpose

notably was not mentioned in the detective's response.                      Indeed,

the school district presumably was able to keep A.R. away from

other children on its own without being commanded to do so by

law enforcement.



                                       47                                  A-2238-14T3
      The detective's role as an interviewer at the prosecutor's

office, some eighteen days after the incident, is fundamentally

different from the DYFS worker who responded to the report of

abuse at the hospital in Buda.                     The context here is instead akin

to the law enforcement interviews of the children in Nyhammer,

Cabbell,     and    P.S.,        all    of    which       were   deemed     testimonial       in

nature.

      We are cognizant that the majority opinion of Justice Alito

in Ohio v. Clark, supra, as well as the concurring opinion of

Justice      Scalia        in        that    case,    discuss          historical     sources

concerning      the        common       law     practice         of     admitting     hearsay

statements     by      young          children       in     criminal       cases.        Those

historical sources cited by the Justices indicate that, prior to

the   1789    adoption          of    the    United   States          Constitution,     courts

often allowed hearsay statements of young child victims to be

admitted at criminal trials, despite the fact that such children

were not generally considered "competent" to testify because of

their age.     Id., ___ U.S. at ___, 135 S. Ct. at 2182, 192 L. Ed.

2d at 316-17.

      We appreciate this historical context, which Justice Alito

characterized         as        support       that        "fortifie[d]"       the     Court's

conclusion that the child's statements in Ohio v. Clark were not

testimonial.        Id., ___ U.S. at ___, 135 S. Ct. at 2181-82, 192

                                              48                                      A-2238-14T3
L. Ed. 2d at 316.            Notably, however, the majority in Ohio v.

Clark    stopped     short    of    declaring       that    statements       by    young

children can never be testimonial.              Nor did the Court hold that

the     statements     of    such   young   children         to    law     enforcement

officials,      in   particular,     cannot     have       the    objective       primary

purpose of aiding a future prosecution.

      In fact, the majority opinion in Ohio v. Clark repeatedly

contrasted the child's statements to his teachers in that case

with statements made to law enforcement personnel.                            Id., ___

U.S. at ___, 135 S. Ct. at 2182, 192 L. Ed. 2d at 317.                            Justice

Alito specifically noted that the teachers' interactions with

the     child   were    "nothing     like     the    formalized          station-house

questioning in Crawford or the police interrogation and battery

affidavit in Hammon[ v. Indiana.]"              Id., ___ U.S. at ___, 135 S.

Ct. at 2181, 192 L. Ed. 2d at 316.14                       Justice Alito further

elaborated on this point, contrasting the child's statements to

his teachers with statements that are given by children to an

investigatory police officer:

            Finally, although we decline to adopt a rule
            that statements to individuals who are not

14
  Hammon is a consolidated case with Davis, in which the Court
held that the police interrogation of a victim of domestic
violence, after responding to the victim's residence and after
the emergency had subsided, was a testimonial context. Id., 547
U.S. at 829-31, 126 S. Ct. at 2278, 165 L. Ed. 2d at 241-42.


                                       49                                     A-2238-14T3
         law enforcement officers are categorically
         outside the Sixth Amendment, the fact that
         [the victim] was speaking to his teachers
         remains   highly   relevant.     Courts  must
         evaluate challenged statements in context,
         and part of that context is the questioner's
         identity. Statements made to someone who is
         not principally charged with uncovering and
         prosecuting      criminal    behavior     are
         significantly less likely to be testimonial
         that statements given to law enforcement
         officers.     It is common sense that the
         relationship between a student and his
         teacher is very different from that between
         a citizen and the police. We do not ignore
         that    reality.       In  light   of   these
         circumstances, the Sixth Amendment did not
         prohibit the State from introducing [the
         victim]'s statements at trial.

         [Id., ___ U.S. at ___, 135 S. Ct. at 2182,
         192 L. Ed. 2d at 317 (emphasis added)
         (internal citations omitted).]

     Similarly, Justice Scalia's concurrence in Ohio v. Clark,

joined by Justice Ginsberg, pointed out that "[t]he statements

here [by the child to his teachers] would not be testimonial

under   the   usual   test   applicable   to   internal     police

interrogation."   Id., ___ U.S. at ___, 135 S. Ct. at 2183-84,

192 L. Ed. 2d at 318 (Scalia, J., concurring) (emphasis added).15


15
   We need not consider Justice Thomas's separate opinion, and
his individualized analysis of whether the child's out-of-court
declarations  were   provided  in   a  context   of  sufficient
"solemnity" to qualify as testimonial.   Id., ___ U.S. at ___,
135 S. Ct. at 2186, 192 L. Ed. 2d at 321 (Thomas, J.,
concurring).



                              50                          A-2238-14T3
The concurrence also underscored that the child was being "asked

questions by his teachers at school," a place "far from the

surroundings adequate to impress upon a declarant the importance

of what he is testifying to."         Id., ___ U.S. at ___, 135 S. Ct.

at 2184, 192 L. Ed. 2d at 319 (Scalia, J., concurring) (emphasis

added).

     Here, in contrast with the situation in Ohio v. Clark, the

interview    room   at    the   prosecutor's     office     where   J.C.   was

questioned by the detective—although structured in an atmosphere

intended to be friendly to a child—objectively was a setting

created   with   the     obvious   goal   of   eliciting,    recording,    and

preserving a statement that might be used at a future trial, if

J.C. repeated his earlier incriminating accusations during the

session.16    The use of anatomical dolls, diagrams, and video

recording for the detective's questioning all are indicative of

such a primary purpose.


16
   The Supreme Court of Iowa has likewise recently noted the
comments expressed within the Court's opinions in Ohio v. Clark
signal a constitutional distinction between statements made by
young children during police interviews, and statements made to
other persons not acting in a law enforcement capacity. See In
the Interest of J.C., 877 N.W.2d 447 (Iowa 2016). Notably, the
Iowa Justices in J.C. unanimously agreed that hearsay statements
made by a young child to a "forensic interviewer" during a
recorded interview at the behest of law enforcement officials
comprised "testimonial" statements that triggered a right of
confrontation. Id. at 458.


                                    51                               A-2238-14T3
      Our     conclusion      treating       J.C.'s      recorded     statements      to

Detective     Abromaitis      as    testimonial          is   consistent     with   the

instructive      Confrontation       Clause        analysis     performed     by    the

Indiana Court of Appeals in Purvis v. State, 829 N.E.2d 572

(Ind. Ct. App. 2005).          The defendant in Purvis was convicted of

child molestation, based in part upon incriminating statements

made by the ten-year-old victim.                  Id. at 575.      The victim first

made the allegations to his mother and her boyfriend, and then

repeated the allegations to a police officer less than two hours

later.      Id. at 576-77.

      Applying the "primary purpose" test, the Indiana appellate

court in Purvis held that the child's statements to his mother

and   boyfriend       were    not   testimonial          because    they     were   not

elicited "for the purpose of preparing to prosecute anyone but

rather to gain information about what happened, find out if [the

child] was harmed, and remedy any harm that had befallen him."

Id. at 579.       By contrast, the child's later statements to the

police      officer    were    deemed        by    the    Indiana     court    to     be

testimonial,      even     though    the      police      interview    was    not     an

"interrogation" in the formal sense of that term.                     Id. at 580.

      The court in Purvis found it significant that, at the time

of the officer's questioning, he knew of the child's allegations

against the defendant and knew that he was investigating a child

                                        52                                    A-2238-14T3
molestation.      Ibid.     The court also underscored that the officer

had "repeated his questioning to [the child] multiple times for

the purpose of obtaining evidence to be used to prosecute [the

defendant]."      Ibid.      Given this context, Purvis concluded that

"[t]here can be no question that the information [the child]

provided    to    [the     officer]    could    be   used    in    any   potential

prosecution, and a primary purpose of the questioning was to

obtain information that could be used in [such] a prosecution."

Ibid.      The    court    was    therefore     satisfied     that,      under   the

"specific circumstances" presented, the child's interview with

the   police     officer    was     testimonial,     and    thus   triggered     the

defendant's rights of confrontation.             Ibid.

      Other state courts have reached similar conclusions.                       See,

e.g. Bobadilla v. Carlson, 570 F.Supp. 2d 1098, 1111 (D. Minn.

2008) (finding that "[t]o hold that a young child's statement

during a police interrogation is 'nontestimonial' because of the

age of the declarant would require carving out an exception to

Crawford's repeated and categorical assertion that statements

taken      in     the      course      of      police      interrogations        are

'testimonial'"); State v. Grace, 111 P.3d 28, 38 (Haw. Ct. App.

2005) (similarly finding a police interview of a child to be

"testimonial"); State v. Snowden, 867 A.2d 314 (Md. Ct. App.

2005) (same); State v. Mack, 101 P.3d 349 (Or. 2004) (same).

                                       53                                  A-2238-14T3
Notably, other than pointing to the historical discussion in

Ohio v. Clark, neither the prosecutor nor the Attorney General's

brief have cited to us a reported case from another jurisdiction

that    has    treated       a     recorded         interview     conducted       by     law

enforcement        officials     with     a    child   victim     of    alleged     sexual

assault as non-testimonial.

       We   thus    hold    that    the       statements   made    here    by     J.C.    to

Detective Abromaitis were testimonial.                     The hearsay statements

could not be admitted against appellant at trial without his

counsel     having     a   constitutionally-sufficient                 opportunity       for

cross-examination.          The same is true of J.C.'s testimony at the

trial itself, which is obviously, and literally by definition,

testimonial.

       We note, however, that appellant has not challenged the

admissibility        of    J.C.'s    alleged         statements    to     his   mother's

cousin G.K.         Those hearsay statements to a relative, assuming

they   occurred       as   described,          are    fundamentally       different       in

character, akin to the non-testimonial statements that the child

victims made to their mothers in Buda and Coder.

                                              IV.

       As the last step of our analysis, we must consider whether

appellant's trial counsel was afforded a meaningful and adequate

opportunity at trial to cross-examine J.C. about his testimonial

                                              54                                  A-2238-14T3
accusations.           We    conclude      that     appellant's       counsel        was

effectively deprived of that important right, given the trial

court's twice-repeated findings of the child's incompetency.

    As our Supreme Court recognized in Nyhammer and Cabbell,

the right of cross-examination entails more than the physical

presence of a witness in a courtroom.                  If a hearsay declarant

has previously communicated out-of-court testimonial statements,

those statements are offered for their truth by a prosecutor

against an accused at trial, and the declarant cannot speak or

refuses    to   speak       on   the   witness    stand,     then    the   right      of

confrontation cannot be fulfilled.                 A defense attorney must be

afforded    a   fair    opportunity        to    question    the     declarant       and

attempt to impeach his or her demeanor, memory, perception, and

overall credibility.

    These       fundamental       objectives      cannot     be     achieved    by     a

defense lawyer posing questions to an incompetent witness such

as J.C., who has been judicially found incapable of reliably

distinguishing     between        truth    and    fiction,    and    who   does      not

understand the paramount need to tell the truth about matters of

grave importance in a prosecution.                 See, e.g., State v. Bueso,

225 N.J. 193, 207 (2016) (explaining the competency standards

for testimony by young children).                Indeed, the Indiana court in

Purvis correctly followed such logic in excluding the child's

                                          55                                A-2238-14T3
statements to the police officer because the child was found

incompetent to testify, being "unable to understand the nature

and obligation of an oath."       Purvis, supra, 829 N.E.2d at 581.17

     We adopt the same conclusion here.            Although appellant's

trial counsel did attempt to question J.C. on cross about the

underlying events, the incompetent child's testimony, such as it

was, leaves us with no assurance that his answers on the witness

stand had any dependable probative value.          The child's responses

to   counsel   could   not   be   relied   upon,   any   more   than   his

assertions to the judge that a dinosaur could be a chicken, that

a red toy was green, and that he lived with cartoon characters

and dragons.

     This is not a situation like Nyhammer where defense counsel

tactically refrained from confronting a reluctant child witness.

Here, the child was not reluctant, but instead seemingly willing

to agree with a number of preposterous facts suggested to him on

17
  We agree with Purvis that a child can be deemed incompetent to
testify in court for purposes of state evidence rules, but
nevertheless be considered, for purposes of the Confrontation
Clause, to have uttered hearsay statements to a law enforcement
official in an objectively "testimonial" setting. We reject the
Attorney   General's  argument   that   the   two   concepts  are
necessarily incompatible. As used by the Court in Crawford and
its   progeny,  the  objective   concept   of   "testimonial"  is
essentially situational, whereas the notion of an individual's
competency to testify in court is essentially an assessment of
the personal characteristics of that individual.     See N.J.R.E.
601.


                                   56                            A-2238-14T3
the    witness     stand.        At    the     very    least,      he   was    repeatedly

confused. We are loathe to allow appellant's finding of the

commission of a serious sexual offense, with its potential long-

term consequences, based on this incompetent child's testimonial

assertions.

       In reaching this conclusion, we do not second-guess the

trial court's perception that J.C.'s specific assertions about

the alleged incident on the bus had the ring of truth.                          Even so,

we cannot with confidence conclude that those assertions, even

if    they   are    accepted     at    face    value     to   be    trustworthy,         were

meaningfully       subjected      to    the     important     customary        rigors       of

cross-examination.          In    fact,       it   may   have      been   unseemly        and

perhaps even harmful to the child for defense counsel to have

undertaken a pointed cross-examination designed to emphasize the

child's already-exhibited failings as a reliable communicator in

the    witness     box.     The       judge's      repeated     findings       of     J.C.'s

incompetency,       which   the       State    does    not    challenge,       are     amply

supported.         Indeed, his incompetency is clearly apparent from

the record.

       We    therefore    conclude       that      appellant       in   this    case      was

denied a fair opportunity to confront and cross-examine J.C.

regarding previous statements he made in a testimonial setting.



                                          57                                        A-2238-14T3
Hence,      A.R.'s    delinquency        adjudication       must   be     reconsidered

because of the court's reliance on those testimonial assertions.

                                           V.

       The   foregoing     analysis       leaves     us    to   address      appellant's

final point that the evidence was insufficient here to support a

finding      of    delinquency      beyond       a    reasonable        doubt.          In

considering        that    argument,      we    are       obligated     to     view   the

competent      evidence      on    the     record     indulgently,           giving   all

favorable inferences to the State.                    See State v. Elders, 192

N.J. 224, 243-44 (2007) (citing State v. Johnson, 42 N.J. 146,

164 (1964)).

       Since we have excluded both J.C.'s courtroom testimony and

his recorded police interview, the State's remaining evidence

consists of: (1) J.C.'s non-testimonial spontaneous utterance to

G.K.   at    the     bus   stop;   (2)     G.K.'s     observation       of     appellant

holding J.C.'s hand after they got off the bus; and (3) G.K.'s

in-court identification of appellant as the child that she saw

with J.C.

       The State's case is bolstered, at least to some limited

extent, by the alleged inconsistency in the testimony of the bus

driver and the bus aide about exactly where the aide had been

seated on the trip and whether or not she had been in a position

to observe any interaction on the bus between appellant and J.C.

                                          58                                    A-2238-14T3
Conversely, the State's case is weakened by the lack of any

eyewitnesses on the bus who saw the alleged touching, or who

heard the alleged laughter of children after it occurred.

      We are reluctant to cast aside the trial judge's first-hand

assessment that what J.C. allegedly said to G.K. was credible.

Indeed, as we have noted, appellant does not contest the judge's

finding of trustworthiness regarding that particular statement

for purposes of admissibility under the hearsay exception.                              Nor

are we willing to discard the judge's                       observation that G.K.

herself was "believable."           To the contrary, we generally owe the

trier   of    fact    considerable         deference        on     such    credibility

findings.      See,      e.g.,    State    v.    Locurto,        157    N.J.    463,    471

(citing Johnson, supra, 42 N.J. at 161-62).

      Our ruling that J.C.'s incompetence deprived appellant of

the chance to meaningfully cross-examine him in court about his

testimonial accounts does not necessarily compel a finding that

J.C.'s separate, non-testimonial spontaneous utterance to his

mother's     cousin   was    incredible.             Indeed,     the    young    child's

excited utterances in Buda, which our Supreme Court deemed non-

testimonial,      were    treated     as       competent       proof,     despite       the

child's non-appearance for cross-examination at trial.                             Supra,

195   N.J.   at   308.      The    same        was   true   of    the     child's      non-

testimonial hearsay in Coder, supra, 198 N.J. at 469.

                                          59                                     A-2238-14T3
    Our      Supreme   Court   has     yet   to   hold      that   a   person's

incompetency to testify in a courtroom signifies that his or her

admissible out-of-court assertions must be per se disregarded.

Moreover, the Supreme Court in D.R. specifically rejected ABA

Recommendation    4.3,   which   had      suggested   the    inclusion    of    a

corroboration requirement when a child of tender years does not

testify.   See D.R., supra, 109 N.J. at 365.

    Because this case was tried as a non-jury juvenile matter,

we have a distinct procedural advantage of an opportunity to

remand this difficult decision about the weight of the remaining

evidence to the trial judge in the first instance.                     We shall

take advantage of that opportunity.

    On remand, the judge shall reconsider the case – this time

ignoring the child's recorded interview and in-court statements

– and assess only the strength of the State's remaining proofs,

bearing, of course, in mind appellant's competing arguments for

acquittal.     If, on further reflection, the trial judge finds

that the remaining proofs are inadequate to meet the State's

burden, he shall enter a judgment of acquittal.                Conversely, if

the judge remains persuaded that the burden was met, he shall

state his reasons as fully as practicable and re-issue a final




                                     60                                A-2238-14T3
judgment    of     delinquency,       which   appellant       is   free    to    have

reviewed in a new appeal.18

     Reversed in part as to the                 evidential admission of the

child's testimonial statements, and remanded in part.                     We do not

retain    jurisdiction.         The    remand    shall   be    completed        within

ninety     days.         In    the    meantime,     appellant's          delinquency

adjudication       and   any   outstanding      portions      of   his    sentencing

disposition shall remain in force, subject to the decision on

remand.




18
   In light of the possibility of appellant's acquittal by the
trial court on remand, we need not address at this time his
contentions that the original delinquency finding violated his
due process rights, aside from his right of confrontation.


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