State v. David Bueso(074261) , 225 N.J. 193 ( 2016 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
State of New Jersey v. David Bueso (A-15-14) (074261)
Argued November 9, 2015 -- Decided June 8, 2016
PATTERSON, J., writing for a unanimous Court.
In this appeal, the Court considers the manner in which a trial court should assess the competency of a child
witness to testify.
In 2009, when M.C. was five years old, her father’s cousin, M.L.G., was her occasional babysitter.
According to M.C.’s mother, M.C. reported that defendant, who was M.L.G.’s boyfriend, sexually abused her on
two occasions. The first incident occurred on an unspecified date when M.L.G. chipped a tooth and went into the
bathroom, leaving M.C. with defendant. M.C. claimed that she was abused by defendant for the second time on
March 29, 2009, hours before a surprise birthday party held for M.L.G. at the child’s home.
The matter was referred to the Division of Youth and Family Services (now the Division of Child
Protection and Permanency). The Division contacted the county prosecutor’s office and, in a subsequent interview
with a detective, M.C. reiterated the allegations that her mother had reported. Defendant was charged with two
counts of first-degree aggravated sexual assault, two counts of second-degree sexual assault, and two counts of
third-degree endangering the welfare of a child. Three of the counts related to the incident alleged to have occurred
on the day M.L.G. chipped her tooth. The remaining charges arose from the alleged incident on the day of M.L.G.’s
birthday party. Prior to trial, the trial court denied defendant’s motion to dismiss the indictment and also denied his
motion to suppress M.C.’s statement to her mother and the recording of the detective’s interview of the child.
At trial, the State called M.C. to the stand for a competency examination. The State asked M.C. about
whether it would be a lie for her to tell her teacher that she had done her homework, when she had not. M.C. agreed
that would be a lie. The State then asked if M.C. understood that she had to tell the truth in court. M.C. confirmed
that she did. Thereafter, the trial court offered defense counsel the opportunity to ask questions, to which defense
counsel responded, “[n]o objection, Judge.” After briefly questioning M.C., the court found M.C. competent and
permitted her to testify.
M.C. testified that the abuse occurred “a lot” and “more than four times.” She reiterated her account of the
abuse on the day that M.L.G. chipped her tooth, but stated that on the day of the birthday party, defendant “didn’t do
it.” Defendant denied all allegations of sexual abuse and claimed that he was never alone with M.C. at the time of
either of the incidents. He claimed that on the day of M.L.G.’s birthday party, identified as the date on which he
sexually abused the child for the second time, he was at an auto repair shop waiting for his employer’s vehicle to be
repaired. He supported his alibi defense with the testimony of employees at the auto repair shop, who corroborated
his testimony.
The jury convicted defendant of one count each of aggravated sexual assault, sexual assault, and
endangering the welfare of a child, all relating to the incident on the day that M.L.G. chipped a tooth, and acquitted
him of the three remaining charges. After merger of the sexual assault offense into the aggravated sexual assault
offense, the court sentenced defendant to a fifteen-year term of incarceration subject to the No Early Release Act,
with parole supervision for life pursuant to Megan’s Law. The court imposed a concurrent four-year term of
incarceration for endangering the welfare of a child.
Defendant appealed his conviction and sentence. For the first time on appeal, defendant argued that the
trial court erred when it ruled that M.C. was competent to testify. The panel reversed defendant’s conviction,
holding that the trial court’s competency determination constituted plain error. The panel found that the trial judge
was required to question M.C. personally, and to directly ascertain her comprehension of a witness’s duty to tell the
truth, but that the court improperly delegated that responsibility to the prosecutor. The panel held that the record
before the trial court did not support its determination that M.C. was competent. The Court granted the State’s
petition for certification. 200 N.J. 40 (2014).
HELD: When the witness is a child, the concepts of truth, falsehood, and punishment may be difficult to reach with
open-ended questions. Subject to the discretion of the trial judge, who must carefully monitor the examination to
ensure that the child’s answers are his or her own, leading questions may be used in a competency inquiry. There
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was no plain error in the procedure used by the trial court in this case.
1. Because defendant did not object to the trial court’s ruling that M.C. was competent to testify, Rule 2:10-2
prescribes the applicable standard of review. That rule provides that any error or omission shall be disregarded by
the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result. (pp. 11-
12)
2. N.J.R.E. 601 provides that all persons should be qualified to testify, and that disqualification should be the
exception. Accordingly, any claim of disqualification must be strictly construed against exclusion and in favor of
admitting any relevant testimony the witness may offer. When the witness is an adult, competency hinges in part on
the witness’s capacity to understand the nature and obligations of an oath. That objective is complicated in the case
of a child witness, who may be incapable of understanding either the concept of divine punishment or the legal
implications of false swearing. In the majority of reported decisions in which appellate courts affirmed competency
determinations, the judge personally conducted the questioning of the child. (pp. 13-15)
3. Direct questioning by the trial judge, with immediate follow-up on an evasive or inconclusive response, may be
the most effective method to probe the child’s understanding of the importance of telling the truth in the formal
setting of a courtroom. However, the Court has never held that the questioning of the witness is the exclusive
province of the trial judge as a child may be more candid and forthcoming in response to questions posed by an
attorney with whom he or she has a rapport. It is the trial court’s charge to make certain that any questioning by
counsel is conducted fairly, and to supplement counsel’s questions as necessary to ensure the integrity of the
proceeding. Subject to the trial court’s careful oversight, leading questions may be used in the examination of a
child witness. Accordingly, a court may in its discretion allow counsel to use leading questions in order to elicit
testimony from a child. (pp. 16-19)
4. With substantial discretion, the trial court’s task is to determine whether the child witness appreciates the
distinction between truth and lies. The trial court’s competency inquiry should focus on whether the child
understood her duty to tell the truth. The testimony should establish that the child understood the distinction
between telling the truth and lying, that he or she understood that it was important to tell the truth in court, and that
he or she anticipated negative consequences in the event of a lie. (pp. 19-24)
5. Here, the trial court’s decision was based on a three-part inquiry. First, using leading and non-leading questions,
the prosecutor introduced the concept of telling a lie in the context of M.C.’s obligation to do her homework. In the
second phase, conducted by the prosecutor posing leading questions, the inquiry became more pointed. The
prosecutor inquired about the consequences of lying, and compared the duty to tell the truth at school to the duty to
testify truthfully in court. Finally, the trial judge questioned the witness, challenging her to declare whether the
judge’s own hypothetical misstatement of fact –- that a rectangular book was round -– constituted the truth or a lie.
It is within a trial court’s broad discretion to permit questioning by the prosecutor, particularly in the initial phase of
the inquiry as the witness becomes comfortable in the intimidating setting of a courtroom. (pp. 24-25)
6. When the witness is a child, the essential concepts of truth, falsehood, and punishment may be difficult to reach
with open-ended questions. Subject to the discretion of the trial judge, leading questions may be used in a
competency inquiry. There was no plain error in the procedure used by the trial court in this case. Given N.J.R.E.
601’s preference for the admission of relevant evidence, and the plain error standard that governs this case, the
inquiry conducted before the trial court was minimally sufficient to support the trial court’s finding of competency.
Although the examination conducted in this case satisfied N.J.R.E. 601, the inquiry was well short of ideal. Trial
courts and counsel should develop the record on the question of competency by means of thorough and detailed
questioning of the child witness. (pp. 25-29)
The judgment of the Appellate Division is REVERSED. The matter is REMANDED to the Appellate
Division for consideration of the issues it did not reach in defendant’s appeal.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and SOLOMON; and JUDGE
CUFF (temporarily assigned) join in JUSTICE PATTERSON’S opinion. JUSTICE FERNANDEZ-VINA did
not participate.
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SUPREME COURT OF NEW JERSEY
A-15 September Term 2014
074261
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
DAVID BUESO (a/k/a YASMIN
BUESO, DAVID ABEJAEL BUESO,
YASMIN A. BUESO, YASMIN
ABEJAEL BUESO, YASMIN ABIGAIL
BUESO),
Defendant-Respondent.
Argued November 9, 2015 – Decided June 8, 2016
On certification to the Superior Court,
Appellate Division.
Sara M. Quigley, Deputy Attorney General,
argued the cause for appellant (John J.
Hoffman, Acting Attorney General of New
Jersey, attorney).
Jacqueline E. Turner, Assistant Deputy
Public Defender, argued the cause for
respondent (Joseph E. Krakora, Public
Defender, attorney).
JUSTICE PATTERSON delivered the opinion of the Court.
This appeal raises questions about the competency of a
child witness and the process that a trial court should apply to
address that issue. Under the New Jersey Rules of Evidence, a
witness is considered competent to testify unless the court
makes a finding that he or she lacks the capacity to express his
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or her testimony so as to be understood, or is incapable of
understanding the duty to testify truthfully. N.J.R.E. 601. In
accordance with that standard, a preliminary inquiry is
undertaken to determine whether a child is competent to testify
at a criminal trial. See State v. G.C., 188 N.J. 118, 131
(2006).
In this appeal, defendant’s conviction rested in part on
the testimony of the alleged victim of sexual assault, who was
seven years old at the time of trial. Pursuant to N.J.R.E. 601,
the trial court held a competency hearing and found the child
witness was competent to testify. The Appellate Division
reversed defendant’s conviction.
We agree with the trial court’s determination. We reject
the State’s argument that defendant waived his right to appeal
the competency finding when he failed to object to that finding
at trial, and accordingly review the trial court’s determination
for plain error. We also do not construe the relevant Rules of
Evidence or our case law to require that the court must conduct
all questioning of a child witness, or to preclude the use of
leading questions in a competency hearing. Although the trial
court and the prosecutor should have conducted a more detailed
inquiry as to M.C.’s understanding of her duty to tell the truth
on the witness stand, the court’s determination that she was
competent was not an abuse of discretion.
2
Accordingly, we reverse the judgment of the Appellate
Division, and remand to the panel for consideration of the
issues that it did not reach in defendant’s appeal.
I.
The alleged acts that gave rise to this case occurred in
2009, when M.C. was five years old. The child’s occasional
babysitter was M.L.G., M.C.’s father’s cousin. M.L.G. was
defendant’s girlfriend and shared a home with him.
According to M.C.’s mother, M.C. reported that defendant
had sexually abused her on two occasions. The first incident
alleged by M.C. occurred on an unspecified date when the
babysitter, M.L.G., chipped a tooth and went into the bathroom
to attend to her tooth, leaving M.C. with defendant. M.C.
claimed that she was sexually abused by defendant on a second
occasion, on the morning of March 29, 2009, hours before a
surprise birthday party held for M.L.G. at the child’s home.
The child’s mother notified M.L.G. about M.C.’s
allegations. Defendant contacted M.C.’s mother to deny that he
sexually abused M.C. The matter was referred to the Division of
Youth and Family Services (now the Division of Child Protection
and Permanency). The Division contacted the county prosecutor’s
office. In an interview with a detective from the prosecutor’s
office, M.C. reiterated the allegations that had been reported
by her mother.
3
Defendant was charged with two counts of first-degree
aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); two counts of
second-degree sexual assault, N.J.S.A. 2C:14-2(b); and two
counts of third-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(a). Three of the counts related to the
incident alleged to have occurred on day the babysitter, M.L.G.,
chipped her tooth. The remaining three arose from the alleged
incident on the day of the babysitter’s birthday party. Prior
to trial, the trial court denied defendant’s motion to dismiss
the indictment and also denied his motion to suppress M.C.’s
statement to her mother and the videotape of the detective’s
interview of the child.
At trial, following the testimony of M.C.’s mother, the
State called M.C. to the stand for a competency examination.
The State initially questioned M.C. about whether it would be a
lie for her to tell her teacher that she had done her homework,
when she had not:
[Prosecutor]: Now, if you forgot to do your
spelling homework -– you didn’t do your spelling
homework –- and you told your teacher you did the
spelling homework, would that be a lie?
[M.C.]: Yes.
[Prosecutor]: And what would your teacher do if
you told her you did your spelling homework --
[M.C.]: He’s going to --
4
[Prosecutor]: -- but you didn’t do your spelling
homework?
[M.C.]: He’s going to put me an X in the homework.
[Prosecutor]: She’s going to do what?
[M.C.]: Put me an X.
[Prosecutor]: She’s going to make you do the next
homework?
[M.C.]: No. She -- he’s going to put an X.
[Prosecutor]: Oh. Put an X? So, he -- your
teacher’s a man? Yes? You just have to say out
loud --
[M.C.]: Yes.
[Prosecutor]: -- yes or no. So, your teacher,
who’s a male, would put an X?
[M.C.]: Yes.
[Prosecutor]: Is the X good or bad?
[M.C.]: Bad.
[Prosecutor]: What happens if you get a lot of
X’s?
[M.C.]: You probably not play with that -- be
alone.
[Prosecutor]: You’d be alone?
The State then introduced the subject of telling the truth
in court in its examination of the child:
[Prosecutor]: Everything you do today in court,
you have to tell the truth. Do you understand that?
[M.C.]: Yes.
[Prosecutor]: So, is it good to tell the truth?
5
[M.C.]: Yes.
[Prosecutor]: And is it bad to tell a lie?
[M.C.]: Yes.
[Prosecutor]: And do you understand bad things
happen if you tell a lie in court. Do you
understand that?
[M.C.]: Uh-un. No.
[Prosecutor]: Do you understand that bad things
happen if you tell a lie in school?
[M.C.]: Yes.
[Prosecutor]: So, just like if you tell a lie in
school, if you tell a lie here in this place, the
court, bad things happen. Do you understand that?
[M.C.]: Yes.
[Prosecutor]: Okay. So, everything you talk about
today has to be the truth. Do you understand that?
[M.C.]: Uh-huh.
The trial judge then offered defense counsel the
opportunity to ask questions. Defense counsel responded,
“[n]o objection, Judge.” The judge then briefly questioned
the child:
[The Court]: All right. Let me just ask you a
question. See that book there?
[M.C.]: Uh-huh.
[The Court]: If I told you that that book is round,
would that be a truth or a lie?
[M.C.]: A lie.
6
[The Court]: Why?
[M.C.]: Because it’s a rectangle.
[The Court]: Because it’s a rectangle. Okay. So,
you know the difference between telling what is and
what isn’t, right? What really is and what really
isn’t? Truth or a lie, right? Okay. Thanks. You
can proceed.
Having determined that M.C. was competent, the trial court
permitted her to testify. M.C. told the jury about the alleged
abuse by defendant, which she said occurred “a lot” and “more
than four times,” at the home shared by defendant and M.L.G.,
when M.L.G. was babysitting for her. M.C. reiterated her
earlier account of alleged abuse on the day that M.L.G. had
chipped a tooth, but did not repeat her prior statement that
defendant had abused her at her own home on the day of M.L.G.’s
birthday party. When cross-examined by defense counsel, M.C.
gave a more detailed account of the alleged sexual abuse on the
day that her babysitter chipped a tooth, but stated that on the
date of the birthday party, defendant “didn’t do it.”
The State called additional fact witnesses and an expert
witness on pediatric sexual abuse. Defendant testified on his
own behalf. He denied all allegations of sexual abuse and
testified that he was never alone with M.C. at the time of
either of the incidents reported by the child. Defendant
testified that on the day of M.L.G.’s birthday party, identified
by M.C. as the date on which he sexually abused the child for
7
the second time, he was at an auto repair shop waiting for his
employer’s vehicle to be repaired. Defendant supported his
alibi defense with the testimony of employees at the auto repair
shop, who corroborated his testimony that he spent that morning
waiting for his employer’s vehicle to be repaired. M.L.G.
testified that on the date that she chipped her tooth, she only
briefly went to the bathroom to check her tooth, and that
defendant was not left alone with M.C. M.L.G.’s mother also
testified, corroborating some of defendant’s testimony and that
of M.L.G.
The jury convicted defendant of three charges, one count of
first-degree aggravated sexual assault, one count of second-
degree sexual assault, and one count of third-degree endangering
the welfare of a child, all relating to the alleged incident on
the day that M.C.’s babysitter chipped a tooth. The jury
acquitted defendant on the three remaining charges, all of which
involved allegations of abuse on the date of the birthday party,
for which defendant presented an alibi. The trial court denied
defendant’s motion for a new trial.
After merger of the second-degree sexual assault offense
into the first-degree aggravated sexual assault offense, the
court sentenced defendant to a fifteen-year term of
incarceration subject to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2, with parole supervision for life pursuant to
8
Megan’s Law, N.J.S.A. 2C:43-6.4, as well as fines and fees. The
court also imposed a concurrent four-year term of incarceration
for defendant’s conviction for third-degree endangering the
welfare of a child.
Defendant appealed his conviction and sentence. For the
first time on appeal, defendant argued that the trial court
erred when it ruled that M.C. was competent to testify.
In an unpublished opinion, an Appellate Division panel
reversed defendant’s conviction. Relying primarily on State v.
Zamorsky, 159 N.J. Super. 273, 280 (App. Div. 1978), certif.
granted, 79 N.J. 485, on remand, 170 N.J. Super. 198, 199-200
(App. Div. 1979), certif. denied, 82 N.J. 287, cert. denied, 449
U.S. 861, 101 S. Ct. 172, 66 L. Ed. 2d 78 (1980), the panel held
that the trial court’s competency determination constituted
plain error. It concluded that the trial judge was required to
question M.C. personally and directly to ascertain her
comprehension of a witness’s duty to tell the truth and her
conceptual awareness of truth and falsehood and that the judge
improperly delegated that responsibility to the prosecutor. The
panel also criticized the prosecutor’s reliance on leading
questions. It held that the record before the trial court did
not support the trial court’s determination that M.C. was
competent, and that the trial court committed plain error.
9
We granted the State’s petition for certification. 220
N.J. 40 (2014).
II.
The State urges the Court to reverse the Appellate
Division’s judgment. It asserts that defendant waived his right
to contest the trial court’s competency finding on appeal by
declining to object to that determination at trial. The State
argues that the Appellate Division improperly focused on
technical considerations, such as the prosecutor’s role in the
questioning of M.C. and her use of leading questions. It notes
that leading questions are commonly used during the examination
of child witnesses and contends that the panel incorrectly
stated that the trial court was constrained to conduct the
examination. Relying on State v. R.R., 79 N.J. 97, 114 (1979),
the State contends that the trial court properly exercised its
discretion in permitting M.C. to testify. It asserts that by
virtue of her responses to questions posed by the trial court
and the prosecutor, M.C. demonstrated that she appreciated the
distinction between truth and falsehood, understood the
importance of truth telling and anticipated negative
consequences if she were to tell a lie on the witness stand.
Defendant urges the Court to affirm the judgment of the
Appellate Division. He contends that plain error is the
applicable standard of review and disputes the State’s assertion
10
that he waived his right to contest the competency determination
on appeal by failing to object at trial. Defendant argues that
the trial court committed plain error in this case. He asserts
that the Appellate Division correctly concluded that the trial
court improperly failed to conduct a thorough examination of
M.C. before permitting her to testify. Defendant argues that
the proper inquiry is whether the trial court based its
determination of competency on a showing that M.C. understood
her moral responsibility to tell the truth and that there was no
such showing in this case.
III.
A.
Because defendant did not object to the trial court’s
ruling that M.C. was competent to testify, Rule 2:10-2
prescribes the applicable standard of review. That rule
provides that “[a]ny error or omission shall be disregarded by
the appellate court unless it is of such a nature as to have
been clearly capable of producing an unjust result” and that a
reviewing court “may, in the interests of justice, notice plain
error not brought to the attention of the trial or appellate
court.” R. 2:10-2; see also Pressler & Verniero, Current N.J.
Court Rules, comment 2.1 on R. 2:10-2 (2016) (noting plain error
is “error not properly preserved for appeal but of a magnitude
dictating appellate consideration”); State v. McKinney, 223 N.J.
11
475, 494 (2015) (applying plain error standard to failure to
object to jury instructions); State v. R.K., 220 N.J. 444, 456
(2015) (applying Rule 2:10-2 plain error standard to limiting
instruction in absence of objection); State v. Ross, 218 N.J.
130, 142-43 (2014) (applying plain error to failure to object to
juror substitution); State v. Stas, 212 N.J. 37, 58 (2012)
(applying plain error standard to trial court’s reliance on
defendant’s silence in conviction).
We do not concur with the State’s position that by failing
to object to a competency determination, a defendant waives his
or her right to challenge that determination on appeal.1 Nothing
in Rule 2:10-2 or our case law suggests that a trial court’s
ruling on the competency of a witness warrants an exception to
the plain error standard of review. Moreover, that high
standard provides a strong incentive for counsel to interpose a
1 In support of its argument, the State does not rely on New
Jersey case law, but on federal authority and case law from
several states. See Benson v. United States, 146 U.S. 325, 332,
13 S. Ct. 60, 62, 36 L. Ed. 991, 995 (1892) (observing defendant
waived objection to testimony “by not objecting to her testimony
at the time it was offered”); United States v. Odom, 736 F.2d
104, 112 (4th Cir. 1984) (holding absent objection, “any claim
of incompetency of the witness is waived”); Rhymes v. State, 356
So. 2d 1165, 1169 (Miss. 1978) (noting cross-examination of
witness waived right to challenge competency of witness); Bowman
v. State, 598 S.W.2d 809, 811 (Tenn. Crim. App. 1980) (noting
“defendant waived any objection he might have had to the
competency of . . . a witness [when] [n]o objection was made”).
We decline to adopt the principles stated in those cases.
12
timely objection, enabling the trial court to forestall or
correct a potential error. See State v. Johnson, 31 N.J. 489,
511 (1960) (“A timely objection gives the trial court and the
prosecutor an opportunity to counteract the effect of any
unseemly remark.”); State v. Douglas, 204 N.J. Super. 265, 274
(App. Div. 1985) (noting timely objections allow for curative
instructions), certif. denied, 102 N.J. 378 (1985); see also
State v. Wilson, 57 N.J. 39, 51 (1970) (observing “a timely
objection [also] signifies that the defense believes itself to
have been prejudiced by the prosecutor’s remarks”). We discern
no reason to deviate from that standard in this case.
Accordingly, we review the trial court’s competency
determination for plain error.
B.
“[O]ur ‘system of justice . . . has established as a
general rule that all persons should be qualified to testify,
and that disqualification should be the exception[.]’” G.C.,
supra, 188 N.J. at 133 (alteration in original) (quoting Germann
v. Matriss, 55 N.J. 193, 217 (1970)). That governing principle
is reflected in N.J.R.E. 601, which provides:
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
13
witness to tell the truth, or (c) except as
otherwise provided by these rules or by law.
Accordingly, any claim of witness disqualification must be
strictly construed against exclusion and in favor of admitting
any relevant testimony the witness may offer. See G.C., supra,
188 N.J. at 132.
Typically, when the witness is an adult, competency hinges
in part on the witness’s capacity “to understand the nature and
obligations of an oath[.]” Id. at 131 (quoting State v. Butler,
27 N.J. 560, 602 (1958)). N.J.R.E. 603 requires that a witness
“take an oath or make an affirmation or declaration to tell the
truth under the penalty provided by law.” A witness may not be
barred from testimony “because of religious belief or lack of
such belief.” Ibid. Thus, the mandated oath need not be an
expression of religious belief; instead, it serves “as a vehicle
to remind the witness that he has a special obligation to speak
the truth in court.” R.R., supra, 79 N.J. at 110.
That objective is complicated in the case of a child
witness, who “may be incapable of understanding either the
concept of divine punishment or the legal implications of false
swearing.” Ibid. Consequently, “[a]ny ceremony which obtains
from an infant a commitment to comply with” the obligation to
testify truthfully, “on pain of future punishment of any
kind[,]” satisfies the requirement of an oath. Id. at 111. In
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a prosecution for a sexual offense in which the alleged victim
is a child, who may be the sole witness to the offense,
[w]e accept something different in the way of
an oath from child victim witnesses for two
reasons. First, “any holding to the contrary
would virtually preclude children from
testifying against their assailants.” Second,
we are confident that “allowing departures
from the traditional oath will not result in
convictions based upon the word of infants
incapable of understanding the difference
between right and wrong.”
[G.C., supra, 188 N.J. at 131 (quoting R.R.,
supra, 79 N.J. at 111).]
N.J.R.E. 601 does not prescribe the procedure by which
trial courts develop a record to determine competency. In the
majority of reported decisions in which appellate courts
affirmed competency determinations, the judge personally
conducted the questioning of the child. See, e.g., G.C., supra,
188 N.J. at 126 (noting court questioned child witness); State
v. Krivacska, 341 N.J. Super. 1, 32 (App. Div.) (stating trial
judge questioned alleged victims, who were children residing in
facility for special-needs students), certif. denied and appeal
dismissed, 170 N.J. 206 (2001), cert. denied., 535 U.S. 1012,
122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002); State v. Walker, 325
N.J. Super. 35, 41 (App. Div. 1999) (observing trial judge
“relied on his observations of [the child] at the voir dire
during pretrial motions and upon the report prepared by [the
child]’s treating psychiatrist” to make competency
15
determination), certif. denied, 163 N.J. 74 (2000); Zamorsky,
supra, 159 N.J. Super. at 280 (acknowledging trial court
conducted questioning of child in one of two proceedings).
Direct questioning by the trial judge, with immediate follow-up
on an evasive or inconclusive response, may be the most
effective method to probe the child’s understanding of the
importance of telling the truth in the formal setting of a
courtroom.
This Court, however, has never held that the questioning of
the witness is the exclusive province of the trial judge.2 Our
case law recognizes that a prosecutor’s examination of a child
witness may be appropriate in a given case. In R.R., supra, the
child witness was questioned in turn by the trial judge, court
clerk, prosecutor, and defense counsel. 79 N.J. at 104.3
Similarly, in State v. T.E., 342 N.J. Super. 14, 27 (App. Div.),
2 To the extent that the first Appellate Division panel in
Zamorsky, supra, 159 N.J. Super. at 280-82, intended to state a
rule barring counsel from questioning a witness when it
commented that a judge must be satisfied from “his
interrogation” that the child understands the duty to tell the
truth, we do not endorse such a requirement.
3 The Court’s statement in R.R., supra, that when a party
challenges a witness’s competency to testify, the trial court
should “conduct a preliminary inquiry,” does not mandate that
questioning be conducted by the trial judge. See 79 N.J. at 113
(citing Evid. R. 8). As is confirmed by the citation to Evid.
R. 8, the predecessor rule to N.J.R.E. 104, the Court’s comment
is a reference to the judge’s responsibility to determine the
preliminary question of competency, not to the procedure for
examining the witness. Ibid.
16
certif. denied, 170 N.J. 86 (2001), the Appellate Division
acknowledged that the “preferred procedure” is for a court
officer to “administer a ‘traditional’ oath and for the judge to
engage in colloquy constituting its functional equivalent with a
youthful witness.” However, the T.E. panel rejected the
defendant’s argument that, by conducting the competency
examination of a child victim, the prosecutor usurped the
court’s function. Ibid. A child may be more candid and
forthcoming in response to questions posed by an attorney with
whom he or she has a rapport. It is the trial court’s charge to
make certain that any questioning by counsel is conducted
fairly, and to supplement counsel’s questions as necessary to
ensure the integrity of the proceeding.
Subject to the trial court’s careful oversight, leading
questions may be used in the examination of a child witness.
N.J.R.E. 611(c) provides:
Leading questions should not be used on the
direct examination of a witness except as may
be necessary to develop the witness’
testimony. Ordinarily, leading questions
should be permitted on cross-examination.
When a party calls an adverse party or a
witness identified with an adverse party, or
when a witness demonstrates hostility or
unresponsiveness, interrogation may be by
leading questions, subject to the discretion
of the court.
The purpose of N.J.R.E. 611(c) is to “encourage testimony
from the witnesses, rather than evidence resulting from the
17
prompting of counsel.” Biunno, Weissbard & Zegas, Current N.J.
Rules of Evidence, comment 8 on N.J.R.E. 611(c) (2015). Trial
judges are vested with broad discretion over the mode of
interrogation to “make the interrogation . . . effective for
ascertainment of the truth, and . . . protect witnesses from
harassment or undue embarrassment.” T.E., supra, 342 N.J.
Super. at 29-30 (quoting N.J.R.E. 611(a)).
Moreover, leading questions are frequently permitted in the
examination of child witnesses. See Biunno, Weissbard & Zegas
supra, comment 8 on N.J.R.E. 611(c) (noting questioning of
youthful witnesses is “[a] prime example” of when leading
questions are necessary); State v. Smith, 158 N.J. 376, 390
(1999) (“[T]he use of leading questions to facilitate an
examination of child witnesses who are hesitant, evasive or
reluctant is not improper.”); T.E., supra, 342 N.J. Super. at 30
(recognizing protecting children from “undue trauma” is weighty
public policy goal warranting use of leading questions); State
in Interest of B.G., 289 N.J. Super. 361, 370 (App. Div.)
(granting counsel “substantial leeway” to ask leading questions
of child witnesses), certif. denied, 145 N.J. 374 (1996)).
Accordingly, “[i]t is well-settled that a court may in its
discretion allow counsel to use leading questions in order to
elicit testimony from an infant.” R.R., supra, 79 N.J. at 114-
15.
18
With substantial discretion regarding the form of
questioning, the trial court’s task is to determine whether the
child witness appreciates the distinction between truth and
lies, and comprehends his or her duty to tell the truth. The
showing necessary for a competency determination is illustrated
by this Court’s prior applications of N.J.R.E. 601 in child
sexual abuse cases. In R.R., the Court reviewed the trial
court’s finding that the alleged victim, a four-year-old boy,
was competent to testify in the defendant’s trial. Id. at 103-
06. After the trial court rejected the defendant’s argument
that the child was incompetent by virtue of his age, the court
clerk conducted the following inquiry:
The Clerk: Will you tell the truth to this
Court?
The Witness: Yes.
The Clerk: Do you believe in God?
The Witness: Yes.
The Clerk: If you lie do you believe that God
will punish you?
The Witness: No.
The Clerk: God will not punish you if you
tell a lie? Or will he punish you?
The Witness: He will.
The Clerk: He will. The boy is sworn, Judge.
[Id. at 104.]
19
In response to a challenge by the defendant to the court’s
initial finding of competency in R.R., the trial court and
counsel further examined the child. Ibid. That inquiry
established that the child always obeyed his teacher, that his
teacher would scold him if he did things “wrong,” that he never
did things “wrong” at home, that truthfulness denotes being
“good,” and that if he told a lie, he would be “bad” and get a
“beating.” Ibid. The child assured the court that he would not
be “bad” while answering questions in court, promised to report
the facts “the way it [was].” Ibid. (alteration in original).
The defendant was convicted and appealed. The Appellate
Division upheld the trial court’s competency determination, but
ruled the child’s testimony inadmissible because the court had
not administered a traditional oath. Id. at 107.
This Court reversed the Appellate Division’s judgment. Id.
at 121. It noted that a trial court must determine “whether the
child possesses ‘moral responsibility’ –- that is, a
consciousness of the duty to tell the truth.” Id. at 113. It
observed that “[s]o long as the child understands (a) the
difference between right and wrong; (b) that to tell the truth
is ‘right’; and (c) that he will be punished in some way should
he lie to the court, this requirement is satisfied.” Id. at
114. The Court concurred with the trial judge’s conclusion that
20
the child witness understood his duty to speak the truth on the
witness stand. Ibid.4
The same standard was applied in G.C., supra, 188 N.J. at
132-33. In G.C., the State presented the testimony of the
defendant’s five-year-old daughter, the victim of his alleged
sexual abuse. Id. at 121, 125-27. In response to a defense
objection to the child’s competency to testify, the trial court
agreed to “mak[e] certain that this witness can understand the
difference between the truth and a lie.” Id. at 125.
Questioned by the trial judge outside the presence of the jury,
the child stated that it was “[n]ot good” to tell a lie and that
it is “good to tell the truth.” Id. at 125-26. Defense counsel
asked for a more specific inquiry about the witness’s
understanding of the consequences of lying, and the trial judge
continued:
4 On the same day that it decided R.R., the Court granted the
State’s petition for certification in Zamorsky and remanded for
reconsideration in light of R.R.. See State v. Zamorsky, 79
N.J. 485 (1979). The Appellate Division in Zamorsky, supra, in
reversing defendant’s conviction on one of two charges of
impairing the morals of a minor, applied a two-step inquiry for
determining whether a child witness was competent to testify:
first, an exploration of the child’s understanding of the
concepts of truth and falsehood, and second, a discussion of his
or her understanding of the duty to tell the truth. See 159
N.J. Super. at 280. On remand, the Appellate Division vacated
its reversal of the defendant’s conviction after finding that
the trial court’s colloquy with the child demonstrated “a
sufficient commitment by the child to tell the truth on pain of
some kind of punishment.” Zamorsky, supra, 170 N.J. Super. at
202.
21
The Court: Now, before when you came in and
we talked a little bit, I asked you if it was
good to tell the truth. Do you remember that?
[The Witness]: (Nods.)
The Court: And I asked you about telling a
lie. Do you remember that?
[The Witness]: (Nods.)
. . . .
The Court: When you talk to [the jury], are
you going to tell the truth or are you going
to tell a lie?
[The Witness]: I’m not going to tell the lie.
I will tell the truth.
The Court: Okay. That’s what we want you to
do. Okay?
[The Witness]: (Nods.)
The Court: Are you going to tell the truth?
[The Witness]: (Nods.)
[Id. at 126.]
The trial court overruled the defendant’s objection to the
child’s competence to testify. Ibid. The Appellate Division
reversed the trial court’s determination, holding that the
court’s inquiry was insufficient to ascertain the child’s
understanding of the duty to tell the truth and the consequences
of false testimony. Id. at 128-29.
Reversing the Appellate Division’s judgment, this Court
held that the trial court’s competency inquiry properly focused
22
on whether the child understood her duty to tell the truth, a
duty that “necessarily implicates the consequences arising as a
result of a failure to comply with the duty.” Id. at 133.
Accordingly, the Court upheld the trial court’s determination
that the child was competent to be a witness. Ibid. Justice
Wallace wrote a concurring opinion, agreeing with the majority
that the witness’s competence was established, but finding the
court’s questions “minimally sufficient” to establish the girl’s
understanding of the duty to tell the truth. Id. at 135
(Wallace, J., concurring).
The questioning of the children in R.R. and G.C. was not
optimal; in each case, the trial court could have conducted a
more thorough and enlightening examination of the witness.
Neither examination erased all uncertainty about the child’s
comprehension of these concepts. The child witness in R.R.,
supra, initially stated that he did not fear divine punishment
if he were to lie, and then corrected himself. 79 N.J. at 104.
The child witness in G.C., supra, offered minimal -– at times
nonverbal -– responses to some of the questions. 188 N.J. at
125-27.
Nonetheless, both decisions illustrate the basic elements
of an adequate competency determination. In each inquiry, the
testimony established that the child understood the distinction
between telling the truth and lying, that he or she understood
23
that it was important to tell the truth in court, and that he or
she anticipated negative consequences in the event of a lie.
G.C., supra, 188 N.J. at 125-28, 133; R.R., supra, 79 N.J. at
104, 113-14. Because our evidence rules presume the competency
of a witness, see G.C., supra, 188 N.J. at 132, this Court
determined in both cases that the trial court properly permitted
the child witnesses to testify, id. at 133; R.R., supra, 79 N.J.
at 113-14.
C.
Guided by N.J.R.E. 601 and our case law, we conduct a
plain-error review of the trial court’s determination that M.C.
was competent to testify at defendant’s trial. R. 2:10-2.
The trial court’s decision was based upon a three-part
inquiry. During the preliminary phase of the examination, the
prosecutor introduced the concept of telling a lie in the
context of M.C.’s obligation to do her homework. She asked both
leading and non-leading questions in a non-confrontational
manner. In the second phase, conducted by the prosecutor posing
leading questions, the inquiry became more pointed. The
prosecutor inquired about the consequences of lying, and
analogized the duty to tell the truth at school to the duty to
testify truthfully in court. Finally, the trial judge
questioned the witness, challenging her to declare whether the
24
judge’s own hypothetical misstatement of fact –- that a
rectangular book was round -– constituted the truth or a lie.
We do not concur with the Appellate Division’s conclusion
that the trial court’s competency determination was procedurally
flawed because the trial court permitted the prosecutor to
question M.C. Although a judge will often be in the best
position to elicit candid answers from a child witness, it is
within a trial court’s broad discretion to permit questioning by
the prosecutor, particularly in the initial phase of the inquiry
as the witness becomes comfortable in the intimidating setting
of a courtroom. T.E., supra, 342 N.J. Super. at 26. The record
of this case suggests an unrehearsed inquiry; until she was
corrected by M.C., who testified that her teacher was male, the
prosecutor mistakenly assumed that the teacher was a woman.
Significantly, the final phase of the questioning was conducted
by the judge. We find no abuse of discretion in the
prosecutor’s conduct of most of the questioning.
Moreover, we do not share the Appellate Division’s view
that the inquiry was improper because the prosecutor asked
leading questions. When the witness is a child, the essential
concepts of truth, falsehood, and punishment may be difficult to
reach with open-ended questions. See Biunno, Weissbard & Zegas
supra, comment 8 on N.J.R.E. 611(c); Smith, supra, 158 N.J. at
390; T.E., supra, 342 N.J. Super. at 30; B.G., supra, 289 N.J.
25
Super. at 370-71. Subject to the discretion of the trial judge,
who must carefully monitor the examination to ensure that the
child’s answers are his or her own, leading questions may be
used in a competency inquiry. We find no plain error in the
procedure used by the trial court in this case.
In light of N.J.R.E. 601’s preference for the admission of
relevant evidence, and the plain error standard that governs
this case, we find that the inquiry conducted before the trial
court was minimally sufficient to support the trial court’s
finding under the standard prescribed in R.R., supra, 79 N.J. at
114. M.C.’s testimony reflected an understanding of “the
difference between right and wrong,” as well as the concept that
“to tell the truth is ‘right.’” See ibid. The child
identified, as examples of lies, two hypothetical statements
posed to her: a statement to her teacher that she had done her
spelling homework, when she had not, and the trial judge’s
suggestion that a book was round, when it was rectangular. The
latter example is the more compelling of the two, because M.C.
demonstrated that she was willing to confront an authority
figure in the event that he made a false statement. M.C.
further testified, albeit in response to leading questions, that
it was “good” to tell the truth, and “bad” to tell a lie. She
26
confirmed that she understood that in court she had to tell the
truth.5
Less conclusive, but nonetheless sufficient, was M.C.’s
testimony about her fear of punishment in the event that she
told a lie. See G.C., supra, 188 N.J. at 133; R.R., supra, 79
N.J. at 114. The prosecutor initially raised the topic of
punishment with non-leading questions about the anticipated
reaction of M.C.’s teacher if she falsely claimed to have done
her homework. The child’s initial answer -– that the teacher’s
response would be an “X” on the homework –- was ambiguous; it
was unclear whether the teacher’s “X” on the homework would be a
sanction for M.C.’s failure to perform the assignment, or for
lying about it. M.C. hesitated when the prosecutor pivoted to a
leading question about “bad things” that would happen if she
told a lie in court. She initially responded that she did not
understand that such “bad things” would happen, but then
confirmed that she understood that “bad things” would follow if
a lie were told in court, as they would occur if a lie were told
in school. Ultimately, the examination elicited testimony that
5 At the conclusion of the examination, the trial court asked
“[s]o you know the difference between telling what is and what
isn’t right? What really is and what really isn’t? Truth or a
lie, right? Okay.” Although M.C. may have nodded, or otherwise
responded affirmatively, in response to those questions, her
answers were unrecorded in the transcript, and we do not rely on
them.
27
established M.C.’s understanding that lied in her testimony, she
would be punished.
Thus, the competency determination was premised on a record
adequate to support it. Accordingly, the trial court’s finding
that M.C. was competent did not constitute plain error. R.
2:10-2. Moreover, defendant’s counsel had the opportunity to
thoroughly cross-examine the child, exploring discrepancies
between her statement to investigators and her testimony at
trial. Allowing M.C. to testify, and permitting the jury to
assess her credibility, did not bring about an unfair trial or
unjust result.
Although we find the examination conducted in this case to
satisfy N.J.R.E. 601, given the plain error standard of review
that governs this appeal, we note that the inquiry conducted in
this case was well short of ideal. A thorough and detailed
examination of the child might have established a more
compelling record. When M.C. offered her unclear comment about
the consequences of a misstatement about spelling homework –-
indicating that she may not have understood the import of the
question -- the prosecutor should have shifted to alternative
examples of falsehoods that a child might tell in the familiar
setting of her school. The trial judge’s brief questioning
about a hypothetical lie concerning the shape of a book was
instructive, but the judge’s inquiry would have been more
28
effective had it extended beyond a single topic. Trial courts
and counsel should develop the record on the question of
competency by means of thorough and detailed questioning of the
child witness.6
In sum, the trial court did not commit plain error when it
concluded that M.C.’s testimony demonstrated that she was a
competent witness, under the standard of N.J.R.E. 601. The
trial court properly exercised its discretion when it permitted
M.C. to be a witness at defendant’s trial.
IV.
The judgment of the Appellate Division is reversed, and the
matter is remanded to the Appellate Division for its
consideration of issues that it did not need to address in its
review of this appeal.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE
PATTERSON’S opinion. JUSTICE FERNANDEZ-VINA did not
participate.
6 We suggest that to assist trial courts and counsel, the
Criminal Practice Committee consider developing model questions
for use in competency determinations involving child witnesses.
29
SUPREME COURT OF NEW JERSEY
NO. A-15 SEPTEMBER TERM 2014
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
DAVID BUESO (a/k/a YASMIN
BUESO, DAVID ABEJAEL BUESO,
YASMIN A. BUESO, YASMIN
ABEJAEL BUESO, YASMIN ABIGAIL
BUESO),
Defendant-Respondent.
DECIDED June 8, 2016
Chief Justice Rabner PRESIDING
OPINION BY Justice Patterson
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA ------------------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 6