State v. J.R. (076694)

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 v. J.R. (A-50-15) (076694)
Argued October 13, 2016 -- Decided January 9, 2017
Patterson, J., writing for a unanimous Court.
In this appeal, the Court considers whether the State’s expert’s testimony concerning Child Sexual Abuse
Accommodation Syndrome (CSAAS) offered against J.R. conformed to the limitations placed on CSAAS evidence
in prior holdings by this Court and whether, if it did exceed the bounds of proper expert opinion on that subject, the
admission of that testimony was harmless error.
In May 2010, when N.R. was twelve years old, N.R.’s mother learned that N.R. had allegedly been sexually
abused on several occasions over the previous two years by N.R.’s father’s stepfather, J.R., and that N.R. had told
her brothers of the abuse but instructed them not to tell anyone. The mother immediately reported the alleged abuse,
and a criminal investigation was initiated. Interviewed by a detective specializing in sexual offenses against
children, N.R. detailed several episodes of sexual abuse by J.R. and indicated that J.R. had instructed her not to tell
anyone. J.R. was arrested and interviewed. He was charged with first-degree aggravated sexual assault, second-
degree endangering the welfare of a child, second-degree sexual assault, and fourth-degree child abuse.
Prior to J.R.’s jury trial, the court denied a defense motion to exclude the testimony of the State’s proposed
expert witness on CSAAS, Dr. Lynn Taska, but noted that her testimony should be limited in accordance with the
Court’s opinion in State v. W.B., 205 N.J. 588 (2011). Dr. Taska told the jury that she knew nothing about the
specific defendant, victim, or family involved in this case. Her testimony did not address any aspect of the facts of
this case. Instead, she described the five “areas” of behavior attributed to child victims that comprise CSAAS.
N.R., fourteen years old at the time of trial, recounted the incidents that she had alleged in her police
interview. She described for the jury the location of each offense, the manner in which defendant allegedly coerced
her, the nature of defendant’s sexual contact with her, and the aftermath of each incident. She confirmed that she
had told only her brothers about J.R.’s alleged sexual abuse, and instructed them not to tell anyone. N.R.’s parents
and one of her brothers also testified on behalf of the State, and their testimony supported N.R.’s account. J.R.
called several witnesses including N.R.’s oldest brother. J.R. also testified on his own behalf.
The jury convicted J.R. of all charges. He was sentenced to eighteen-years’ imprisonment. J.R. appealed,
challenging the admissibility of Dr. Taska’s testimony and raising several other claims of error. The Appellate
Division found that the expert had exceeded the bounds of permissible CSAAS testimony and reversed defendant’s
conviction. The panel declined to fully address the remaining issues raised by J.R.
The Court granted the State’s petition for certification, limited to the issue of whether the State’s expert
testimony exceeded the permissible scope of admissible CSAAS testimony. 224 N.J. 243 (2016).
HELD: Although Dr. Taska’s testimony was in part proper CSAAS opinion evidence, it exceeded the parameters
imposed on CSAAS testimony. In that respect, the admission of her testimony constituted error. However, the trial
court’s error with respect to Dr. Taska was not clearly capable of producing an unjust result, and does not warrant a new
trial. Accordingly, the Court reverses the judgment of the Appellate Division panel, and remands to the Appellate
Division for consideration of the issues raised by defendant that the panel did not reach.
1. N.J.R.E. 702 governs the admissibility of expert testimony, such as CSAAS testimony, which can help “to dispel
[preconceptions] jurors may have concerning the likelihood of the child’s truthfulness as a result of her delay in having
disclosed the abuse or sought help.” State v. P.H., 178 N.J. 378, 395 (2004). CSAAS testimony must not be admitted
for purposes of demonstrating that the child was—or was not—subjected to sexual abuse. (pp. 17-21)
1
2. In State v. J.Q., 130 N.J. 554, 578 (1993), the Court held that a CSAAS expert should not opine on the question
whether the child victims had been sexually abused. That basic rule was refined and expanded in State v. R.B., 183
N.J. 308, 326 (2005), where the CSAAS expert told the jury that two of the behaviors that had been exhibited by the
child are “among the range of behaviors consistent with [CSAAS].” The Court warned that CSAAS testimony
should be used only “to explain . . . why it is not uncommon for sexually abused children, without reference to the
child victim in that case, to delay reporting their abuse and why many children, again without reference to the child
victim in that case, recant allegations of abuse and deny the events at issue.” Id. at 329. The Court further
constrained CSAAS testimony in W.B., supra, 205 N.J. at 613-14, when it declared testimony about the “statistical
credibility of victim-witnesses” inadmissible and commented that “[a]ny CSAAS testimony beyond its permissible,
limited scope cannot be tolerated.” The Court has also underscored the critical importance of the trial court’s
limiting instructions to the jury as to CSAAS testimony. (pp. 21-24)
3. Here, in most respects, Dr. Taska’s testimony was consistent with the Court’s prior holdings. However, in her
discussion of the third aspect of CSAAS, entrapment and accommodation, Dr. Taska described to the jury a range of
behavior expansive enough to encompass the behavior of almost any child, and suggested that adults should believe
children who manifest any of the disparate types of conduct that she described. Describing an array of behaviors as
characteristic of children who are confirmed victims of sexual abuse may improperly suggest to the jury that any
child who exhibits the behavior described has been the victim of sexual abuse. Further, Dr. Taska briefly
commented on the Pennsylvania State University child sexual abuse case to illustrate that media coverage of child
sexual abuse typically results in a sharp increase in reporting. To avoid confusing a jury, a CSAAS expert should
not cite another case—particularly a publicized incident that resulted in a conviction—in his or her testimony.
Finally, Dr. Taska was called as the State’s first witness, which is incompatible with the exclusively rehabilitative
role of CSAAS expert testimony. Dr. Taska’s testimony exceeded the parameters imposed on CSAAS testimony,
and admitting her testimony was error. (pp. 24-29)
4. An error will not lead to reversal unless it is “clearly capable of producing an unjust result.” R. 2:10-2.
Accordingly, the Court considers the portion of Dr. Taska’s testimony that exceeded the bounds of CSAAS evidence
in the broader context of J.R.’s trial. (pp. 29-30)
5. Dr. Taska’s discussion of the range of behavior that child victims of sexual abuse may exhibit was brief.
Moreover, the trial court delivered a strong limiting instruction, which tracked the CSAAS Model Charge and
conformed to this Court’s admonitions in P.H. and W.B., immediately before Dr. Taska’s testimony, and again in its
final charge to the jury. Significantly, the critical witness for the State was not Dr. Taska, but N.R. herself.
Although there were no witnesses to the alleged abuse, N.R.’s account was corroborated in important respects by
members of her family, including the brother called as a defense witness. In his testimony, J.R. vehemently denied
N.R.’s allegations of sexual abuse but confirmed N.R.’s account in material respects. Moreover, his credibility was
substantially challenged on cross-examination through inconsistencies between his trial testimony and statements he
made in his police interview, as well as self-incriminating comments he had made during the interview. (pp. 30-33)
6. In light of the testimony of N.R., her family members, and J.R. himself, there is no basis to conclude that Dr.
Taska’s brief venture beyond the bounds of proper CSAAS testimony changed the result of J.R.’s trial. The trial
court’s error with respect to Dr. Taska does not warrant a new trial. (pp. 33-34)
7. The Court declines to consider the argument raised by the Office of the Public Defender, as amicus curiae, that
the Court should reject CSAAS evidence in its entirety on the ground that it is unreliable and therefore inadmissible
under N.J.R.E. 702, because this argument was not asserted by a party. The Court notes that the proper procedure to
present evidence that CSAAS has been rejected by experts on child sexual abuse is a challenge of the admissibility
of the evidence before the trial court in an appropriate case. (pp 34-35)
The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the Appellate
Division so that it may consider the issues that it did not reach in its prior review of this case.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in JUSTICE PATTERSON’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-50 September Term 2015
076694
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
J.R.,
Defendant-Respondent.
Argued October 13, 2016 – Decided January 9, 2017
On certification to the Superior Court,
Appellate Division.
John R. Mulkeen, Assistant Prosecutor,
argued the cause for appellant (Esther
Suarez, Hudson County Prosecutor, attorney).
Jeffrey G. Garrigan argued the cause for
respondent (Cammarata, Nulty & Garrigan,
attorneys).
Sarah E. Ross, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (Christopher S.
Porrino, Attorney General, attorney).
Joshua D. Sanders, Assistant Deputy Public
Defender, argued the cause for amicus curiae
Office of the Public Defender (Joseph E.
Krakora, Public Defender, attorney).
JUSTICE PATTERSON delivered the opinion of the Court.
In this case, we consider a criminal defendant’s challenge
to the State’s expert’s testimony concerning Child Sexual Abuse
Accommodation Syndrome (CSAAS). CSAAS evidence is presented to
1
explain why some child victims of sexual abuse delay reporting
sexual offenses to adults, refrain entirely from reporting the
abuse, or retract their allegations prior to trial. Such
evidence is not admissible to prove that a particular child was
the victim of a sexual offense. CSAAS evidence must be
carefully circumscribed so that it does not improperly bolster
the testimony of the alleged victim, mislead the jury, or
prejudice the defendant’s right to a fair trial.
This appeal arises from defendant J.R.’s conviction for
several sexual offenses against his step-granddaughter, who was
between ten and twelve years old when the alleged offenses took
place. The child did not disclose defendant’s conduct to any
adult; she told only her brothers, one of whom revealed the
allegations to their mother almost two years after the abuse
began.
At defendant’s trial, the State proffered the testimony of
a CSAAS expert to opine that child victims of sexual offenses
sometimes delay reporting sexual abuse and to explain other
aspects of victims’ behavior. The trial court denied
defendant’s motion to bar the testimony. Testifying as the
State’s first witness, the expert properly refrained from
discussing the specific victim in this case. She told the jury,
however, that studies of confirmed child victims of sexual abuse
have reported a broad array of behaviors, ranging from a
2
cooperative demeanor and academic success to disruptive and
sadistic conduct, including in that broad description behaviors
exhibited by the alleged victim in this case. The expert also
invoked a highly publicized child sexual abuse scandal in her
testimony.
The State’s witnesses included the victim and members of
her family. Defendant testified on his own behalf. He was
convicted of all charges.
Defendant appealed his conviction, raising the CSAAS
expert’s opinion as his primary issue on appeal. An Appellate
Division panel reversed his conviction on the ground that the
CSAAS expert exceeded the bounds of proper expert opinion on
that subject. The panel remanded for a new trial. We granted
the State’s petition for certification, limited to the question
of whether the trial court properly limited the testimony of the
CSAAS expert.
We concur with the Appellate Division panel that the
expert’s testimony did not entirely conform to the limitations
placed on CSAAS evidence in prior holdings by this Court.
However, we conclude that the error was harmless. In her
compelling testimony, the child victim not only described the
incidents of abuse, but explained her failure to report her
allegations to anyone but her brothers. As to the critical
question of defendant’s access to the child on multiple
3
occasions with no one else present, the victim’s account was
substantially supported by her parents and brothers, and by the
admissions of defendant himself. Moreover, defendant’s
credibility was impeached in important respects when he
testified. Viewed in the context of all of the trial evidence
heard by the jury, the CSAAS expert’s improper statements were
not clearly capable of producing an unjust result and do not
warrant a new trial.
Accordingly, we reverse the judgment of the Appellate
Division panel, and remand to the Appellate Division for
consideration of the issues raised by defendant that the panel
did not reach.
I.
We derive our summary of the facts from the trial record.
In the spring of 2008, N.R. was a ten-year-old fourth
grader. She lived with her mother, C.S., and eleven-year-old
brother, A.R. Her father, G.R., lived in a different
municipality with his twelve-year-old son, G.L.R. C.S. and G.R.
closely cooperated in the parenting of their children. N.R. and
A.R. spent every other weekend with their father and older
brother.
Defendant is G.R.’s stepfather; he married G.R.’s mother
when G.R. was a teenager. Defendant maintained a close
relationship with his stepson and step-grandchildren. Defendant
4
and his wife lived in a series of residences that were either in
the same building as G.R.’s home, or adjacent to it. The three
children were fond of their step-grandfather, whom they called
“Grandpa”; he organized camping trips for the entire family and
outings for the children.
During his children’s weekend visits, G.R. sometimes was
away from home for work or other reasons. Often, the children
stayed at the home of defendant and his wife. On some of the
occasions when the children were present, defendant’s wife was
not at home. At times, the two boys left defendant’s apartment
to play outside, but N.R. was not permitted to accompany them.
The children would occasionally stay overnight, either with
defendant and his wife or with defendant alone.
According to N.R. and her brothers, during a ride in the
back of defendant’s truck in either 2008 or 2009, N.R. told A.R.
and G.L.R. that “Grandpa” was “touching” her. She was adamant
that her brothers refrain from telling anyone what she had
confided in them. According to the three children, A.R. and
G.L.R. counseled N.R. to make up excuses to avoid being with
defendant. However, N.R. and her brother A.R. continued to
visit their father on their regular schedule and spend time with
defendant as they did before N.R. disclosed the alleged abuse to
her brothers; her parents did not notice a change in her
demeanor when in defendant’s presence. According to her
5
parents, N.R. sometimes isolated herself in her room and she
struggled academically during that time period.1
In early 2010, shortly after N.R.’s twelfth birthday, her
parents briefly reconciled. C.S. told N.R. that she and G.R.
were going out on a date, and that defendant would babysit for
her, without her brothers present. According to both parents,
N.R. refused to stay with defendant. C.S. recalled, however,
that she and G.R. compelled N.R. to go to defendant’s home.
According to her mother and brother, when N.R. returned from
that visit, she went straight to her room. Her brother A.R.
testified that she later told him that “Grandpa” had “touched
her again.”
N.R.’s allegations were finally disclosed to her parents on
May 11, 2010. That morning, as N.R. and A.R. waited at a
relative’s home for their school bus, A.R. sent his mother a
text message stating that his sister “is having sex with
Grandpa.” C.S. immediately contacted the children’s father and
their school. Within hours, the parents met with their
children, school officials, and law enforcement. The New Jersey
Division of Child Protection and Permanency (Division) was
contacted, and the County Prosecutor’s Office initiated a
criminal investigation.
1 By the time the case was tried several years later, N.R. was
an honor student.
6
Interviewed by a detective specializing in sexual offenses
against children, N.R. recounted several incidents. She said
that defendant first assaulted her when she hid from her
brothers in defendant’s apartment during a game of hide-and-
seek. N.R. claimed that defendant shut the door, blocking it
with a fan, kissed her, undressed her, touched her chest,
digitally penetrated her, and touched her vagina with his penis,
without engaging in intercourse. She detailed several
subsequent episodes of sexual abuse by defendant, involving
digital penetration, genital-oral contact, and contact between
defendant’s penis and her vagina. According to N.R., these
incidents occurred in defendant’s apartment, in a second
apartment to which he moved, on a cot located in his work truck,
in a second truck in which he stored materials, and on a meat
cutting board in the back of a restaurant that he owned.
When the investigator asked during the interview what
defendant had said to her after one of the incidents, N.R. was
silent for two minutes. She then wrote on an easel that
defendant had instructed her not to tell anyone, and that he had
asked her whether she “liked it.”
Defendant was arrested. He waived his rights under Miranda
v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966), and was interviewed by detectives. Defendant denied all
of N.R.’s allegations. He stated that N.R. had never stayed
7
overnight in his home and insisted that only the two boys had
stayed overnight in his apartment. After police officers told
defendant that they had spoken with witnesses, defendant pressed
the detectives on whether the witnesses had said that they saw
him “doing something to her.” He commented, “[s]econd of all
nobody was there besides [N.R.] with me alone.”
II.
Defendant was charged with first-degree aggravated sexual
assault, N.J.S.A. 2C:14-2(a); second-degree endangering the
welfare of a child, N.J.S.A. 2C:24-4(a); second-degree sexual
assault, N.J.S.A. 2C:14-2(b); and fourth-degree child abuse,
N.J.S.A. 9:6-1 and 9:6-3.
Prior to defendant’s trial, the trial court denied a
defense motion to exclude the testimony of the State’s proposed
expert witness on CSAAS, Dr. Lynn Taska.2 In light of the
State’s assurance that the expert would not be questioned about
N.R.’s individual characteristics or asked to opine whether
defendant had sexually abused N.R., the court held that the
testimony was admissible. It noted, however, that the expert’s
testimony should be limited in accordance with this Court’s
opinion in State v. W.B., 205 N.J. 588 (2011). The trial court
2 It does not appear that either party requested that Dr. Taska
testify at a pretrial hearing pursuant to N.J.R.E. 104, and no
pretrial evidentiary hearing was held.
8
advised counsel that the model charge on CSAAS testimony, Model
Jury Charge (Criminal), “Child Sexual Abuse Accommodation
Syndrome” (May 2011) (CSAAS Model Charge), would be used to
guide the jury to properly interpret Dr. Taska’s testimony.
Defendant was tried before a jury over nine trial days.
Prior to the testimony of Dr. Taska, who was the State’s first
witness, the trial court instructed the jury with respect to the
limitations of CSAAS, based on the CSAAS Model Charge.
After she was qualified as an expert witness on the subject
of CSAAS, Dr. Taska told the jury that she knew nothing about
the specific defendant, victim, or family involved in this case.
Her testimony did not address any aspect of the facts of this
case. Instead, the expert generally described the five “areas”
of behavior attributed to child victims that comprise CSAAS:
“secrecy,” “helplessness,” “entrapment and accommodation,”
“delayed and unconvincing disclosure,” and “retraction and
recantation.”
Explaining the first component of CSAAS, secrecy, Dr. Taska
described offenders’ use of threats and coercion to maintain a
victim’s silence, and opined that child victims of abuse often
deny abuse notwithstanding the presence of medical evidence or
the statement of a third party who has witnessed the offense.
She noted, “when there’s a lot of attention, like recently with
this Penn State case and Jerry Sandusky, there’s an increase in
9
disclosure. Here in New Jersey, there’s many more reports to
[the Division] lately as a result of that case.”
Dr. Taska testified that the second area, helplessness,
denotes the tendency among child victims to “play dead” or
“freeze” when confronted by a sexual abuser.
Addressing the third area, entrapment and accommodation,
Dr. Taska described a range of behaviors that are sometimes
exhibited in child victims of sexual abuse. Although Dr. Taska
stated that she was unaware of the facts of this case, the broad
panoply of potential reactions that she described included
compliant behavior and occasional self-isolation, which N.R.
exhibited during the period of the alleged abuse.
Dr. Taska stated that the fourth area, delayed and
unconvincing disclosure, describes the behavior of children who
delay reporting abuse for years, who disclose sexual abuse by an
indirect manner such as in a diary, or who never disclose at
all, due to fear of an investigation, a trial, or “get[ting]
someone in trouble.”
Finally, Dr. Taska discussed the fifth component, the
“occasional” incidence of retraction and recantation among child
victims.3
3 In addition to Dr. Taska, the State presented the testimony of
a second expert, a pediatrician whose physical examination of
N.R. revealed no physical findings confirming sexual abuse.
Defendant’s challenge to the expert testimony as containing
10
N.R., fourteen years old at the time of trial, testified on
behalf of the State. At length and in detail, she recounted the
incidents that she had alleged in her police interview. She
described for the jury the location of each offense, the manner
in which defendant allegedly coerced her, the nature of
defendant’s sexual contact with her, and the aftermath of each
incident. In addition to the incidents she had described in the
interview, N.R., while testifying, recalled one instance in
which defendant “tried to put [his penis] inside [of her] where
the tampon goes,” but she was in pain and resisted. She said
that he apologized and assured her that he would never do that
again.
N.R. stated that she had not been given access to the
record of her interview in preparation for her testimony. She
testified that despite the abuse, she continued with her
schedule of visits to her father and his family, and acted
normally, “because I was scared” and “because I didn’t want them
to know.” She confirmed that she had told only her brothers
about defendant’s alleged sexual abuse, and instructed them not
to tell anyone.
inadmissible hearsay was briefly addressed by the Appellate
Division; that challenge is outside the scope of our limited
grant of certification, and we do not address it.
11
N.R.’s account was supported by the testimony of her
parents, who described her behavior during the relevant period
and her refusal to be left with defendant on the occasion in
early 2010. N.R.’s testimony was also buttressed by her brother
A.R., who provided “fresh complaint” testimony about her
disclosure of the alleged abuse to him and their brother G.L.R.
Defendant called as witnesses a detective and a hospital
employee who had interviewed N.R., two character witnesses, and
his sister, who stated that N.R. behaved normally in defendant’s
presence and was affectionate with defendant. He also presented
the testimony of N.R.’s oldest brother, G.L.R., who stated that
there was material with sexual content in his father’s apartment
but confirmed that N.R. was not given access to it. G.L.R.
substantially corroborated A.R.’s fresh-complaint testimony
about N.R.’s reporting of the abuse to her brothers. He told
the jury that “once in a while” N.R. was left alone with
defendant.
Defendant testified on his own behalf. Contrary to his
statement to police, defendant conceded that N.R. and her
brothers had stayed overnight in his apartment on many
occasions. He admitted that, on at least one overnight visit,
N.R. slept with him in his bed when his wife was not at home; he
said that he kept the bedroom door open on that occasion and
12
that when he awoke, N.R.’s brothers were asleep on the floor
next to defendant’s bed.
In its final jury charge, the trial court instructed the
jury, in accordance with the CSAAS Model Charge, that Dr.
Taska’s CSAAS testimony could be considered only for the limited
purpose of helping to explain why a sexually abused child may
keep silent and delay reporting, and not as proof that abuse
either occurred or did not occur in this case.
The jury convicted defendant of all charges. The trial
court denied defendant’s motion for a new trial. After merger
of two of the offenses, the trial court sentenced defendant to
an eighteen-year term of incarceration, subject to an eighty-
five percent parole disqualifier under N.J.S.A. 2C:43-7.2, for
first-degree aggravated sexual assault, and a concurrent eight-
year term for second-degree sexual assault.
Defendant appealed his conviction and sentence. He
asserted that the trial court had committed three errors with
respect to Dr. Taska’s CSAAS testimony: admitting opinion
evidence that was irrelevant and therefore inadmissible;
permitting Dr. Taska to exceed the bounds of CSAAS testimony;
and giving the jury inadequate limiting instructions regarding
CSAAS. Defendant also contended that the trial court committed
other errors in evidentiary rulings, permitted prosecutorial
misconduct, and improperly denied defendant’s motion for a
13
mistrial. In addition, defendant claimed that his counsel
provided ineffective assistance at trial, and that his sentence
was excessive.
The Appellate Division reversed defendant’s conviction. It
found that the trial court had properly permitted Dr. Taska to
provide expert opinion about CSAAS. The panel found, however,
that the expert testimony exceeded the boundaries of permissible
CSAAS testimony by describing the wide range of behavior
exhibited by child victims of sexual abuse, and by suggesting
that children who engage in such behavior should be believed by
adults when they report abuse. It concluded that the error was
not harmless, because the jury could have inferred from Dr.
Taska’s testimony that N.R.’s poor grades and isolation in her
room signaled that she had been subjected to sexual abuse. The
panel specifically identified Dr. Taska’s remark about “the Penn
State case and Jerry Sandusky” as an improper reference that
should be avoided on retrial. The panel briefly commented on
several of the remaining issues raised by defendant to provide
guidance for retrial but declined to fully address them.
We granted the State’s petition for certification, limited
to the issue of whether the State’s expert testimony exceeded
the permissible scope of admissible CSAAS testimony. 224 N.J.
243 (2016). We denied defendant’s cross-petition, in which he
sought to preserve for review the issues not reached by the
14
Appellate Division. 224 N.J. 245 (2016). We granted amicus
curiae status to the Attorney General and the Office of the
Public Defender (OPD).
III.
The State argues that the Appellate Division panel
improperly restricted CSAAS expert testimony in child abuse
cases. The State contends that Dr. Taska’s general discussion
of a range of behavior manifested in child victims, without
reference to N.R. and her family, was appropriate, and the fact
that N.R. exhibited some aspects of the behaviors described by
the expert does not render the opinion improper. It contests
the Appellate Division’s conclusion that any error in the
admission of CSAAS testimony was harmful. The State notes that
N.R.’s account of the alleged abuse did not change throughout
the investigation and trial, and that defendant’s testimony was
riddled with inconsistencies, particularly with respect to the
important issue of his access to the child.
Defendant counters that, in a series of decisions, this
Court has unequivocally limited the scope of CSAAS testimony to
a single purpose: to explain to the jury, without reference to
the child victim in the case, why it is not uncommon for
sexually abused children to delay reporting the abuse, and why
some child victims recant their allegations. He contends that
Dr. Taska’s testimony ventured beyond the boundaries drawn by
15
the Court because it encouraged the jury to accept the evidence
of behavior associated with sexual abuse as substantive evidence
of defendant’s guilt and suggested that N.R.’s testimony should
be believed. Defendant asserts that the trial court’s admission
of the expert evidence was not harmless because he did not
confess that he committed sexual abuse and because the State’s
case relied almost entirely on N.R.’s testimony.
The Attorney General argues that CSAAS testimony serves a
key forensic function: it is rehabilitative evidence that
explains why many children delay reporting sexual abuse, or
recant allegations that they previously made. The Attorney
General asserts that CSAAS evidence is properly presented to
dispel jurors’ preconceived notions that a child’s delayed
reporting suggests that his or her allegations are fabricated.
The Attorney General notes that Dr. Taska did not attempt to
“connect the dots” between her general testimony and defendant’s
case, and contends that her testimony was accordingly proper.
Raising a contention not made by defendant, the OPD urges
the Court to reject CSAAS expert testimony in its entirety by
holding that it is inadmissible, in all prosecutions for child
sexual abuse, under N.J.R.E. 702. The OPD contends that any
legitimate purpose for CSAAS evidence would be served by a jury
instruction explaining to jurors why child victims of sexual
abuse may delay reporting the abuse.
16
IV.
A.
The sole issue before the Court -- whether the trial court
properly limited the State’s expert evidence regarding CSAAS --
is governed by N.J.R.E. 702. That Rule permits a qualified
expert to offer an opinion “[i]f scientific, technical, or other
specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue.”
N.J.R.E. 702. For an opinion to be admissible under N.J.R.E.
702, the expert must utilize a technique or analysis with “a
sufficient scientific basis to produce uniform and reasonably
reliable results so as to contribute materially to the
ascertainment of the truth.” State v. Kelly, 97 N.J. 178, 210
(1984); see Hisenaj v. Kuehner, 194 N.J. 6, 17 (2008); State v.
Torres, 183 N.J. 554, 568 (2005). The party seeking to present
expert testimony must demonstrate that it “would ‘enhance the
knowledge and understanding of lay jurors with respect to other
testimony of a special nature normally outside of the usual lay
sphere.’” Kelly, supra, 97 N.J. at 209 (quoting State v.
Griffin, 120 N.J. Super. 13, 20 (App. Div.), certif. denied, 62
N.J. 73 (1972)).
If a party challenges an expert opinion pursuant to
N.J.R.E. 702, the “trial court should conduct a hearing under
[N.J.R.E. 104] concerning the admissibility of the proposed
17
expert testimony.” Torres, supra, 183 N.J. at 567 (citing State
v. Harvey, 151 N.J. 117, 167 (1997), cert. denied, 528 U.S.
1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000)). In that
setting, the proponent of the expert testimony may demonstrate
that the expert’s methodology meets the benchmark of N.J.R.E.
702, and the opposing party may challenge the reliability of the
expert’s opinion. A hearing pursuant to N.J.R.E. 104 “is a
favored means to create a record for appellate review of a
disputed decision.” Ibid.
Although “the trial court is in a better position to shape
the record and make credibility determinations,” an “appellate
court need not be as deferential to the trial court’s ruling on
the admissibility of expert scientific evidence as it should be
with the admissibility of other forms of evidence.” Ibid.
(citing Harvey, supra, 151 N.J. at 167).
In accordance with the N.J.R.E. 702 framework and the
applicable standard of appellate review, this Court has
addressed the role of CSAAS testimony in several decisions. As
the Court has noted, CSAAS was first discussed in a 1983 study
by Roland C. Summit, M.D., undertaken “to provide a vehicle for
a more sensitive, more therapeutic response to legitimate
victims of child sexual abuse and to invite more active, more
effective clinical advocacy for the child within the family and
within the systems of child protection and criminal justice.”
18
State v. J.Q., 130 N.J. 554, 567-68 (1993) (quoting Roland C.
Summit, The Child Sexual Abuse Accommodation Syndrome, 7 Child
Abuse & Neglect 177, 179-80 (1983) (Summit Study)); see State v.
P.H., 178 N.J. 378, 395-96 (2004). In the Summit Study,
researchers identified five categories of behavior that
countered “the most common assumptions of adults.” J.Q., supra,
130 N.J. at 568 (quoting Summit Study at 181). Those categories
include two preconditions to abuse, secrecy -- often enforced by
the abuser’s threats -- and helplessness, and three “sequential
contingencies” of the abuse: entrapment and accommodation;
delayed, conflicted, and unconvincing disclosure; and
retraction. Id. at 568-71 (citing Summit Study at 181-88).
As this Court has observed,
the behavioral studies of CSAAS are designed
not to provide certain evidence of guilt or
innocence but rather to insure that all
agencies, including the clinician, the
offender, the family, and the criminal justice
system, offer “the child a right to parity
with adults in the struggle for credibility
and advocacy.”
[Id. at 571 (quoting Summit Study at 191).]
In the courtroom, CSAAS testimony “helps to dispel
preconceived, but not necessarily valid, conceptions jurors may
have concerning the likelihood of the child’s truthfulness as a
result of her delay in having disclosed the abuse or sought
help.” P.H., supra, 178 N.J. at 395.
19
The Court has repeatedly emphasized that CSAAS is not a
diagnostic tool as used by experts in psychiatry or psychology,
and that in the setting of a criminal trial, CSAAS must not be
admitted to demonstrate that the child was -- or was not --
subjected to sexual abuse. W.B., supra, 205 N.J. at 610; State
v. Schnabel, 196 N.J. 116, 133-34 (2008); State v. R.B., 183
N.J. 308, 327 (2005); P.H., supra, 178 N.J. at 395-96; J.Q.,
supra, 130 N.J. at 578-82. Instead, “CSAAS expert testimony may
serve a ‘useful forensic function’ when used in a rehabilitative
manner to explain why many sexually abused children delay in
reporting their abuse, or later recant allegations of abuse.”
P.H., supra, 178 N.J. at 395 (quoting J.Q., supra, 130 N.J. at
579).
Given an expert witness’s singular status in the courtroom,
“[t]he uncritical acceptance of expert testimony can becloud the
issues.” State v. R.W., 104 N.J. 14, 30 (1986). The trial
court is charged to ensure that the expert does not usurp the
jury’s function to determine guilt or innocence, or opine on the
credibility of witnesses. State v. McLean, 205 N.J. 438, 453-57
(2011); see State v. Vandeweaghe, 177 N.J. 229, 239 (2003);
State v. Jamerson, 153 N.J. 318, 340-41 (1998). The trial
court’s careful oversight is particularly important when the
State proffers an expert on CSAAS in a prosecution for the
sexual abuse of a child. The line between the discrete
20
rehabilitative purpose of CSAAS testimony and an improper
inference as to the defendant’s guilt is fine indeed; as we have
noted, courts defining the scope of this evidence are on
“clearly hazardous ground.” R.B., supra, 183 N.J. at 328
(discussing J.Q., supra, 130 N.J. 554).
Accordingly, our case law has substantially restricted the
State’s use of CSAAS testimony. In J.Q., supra, this Court held
that a CSAAS expert should not opine on the question whether the
child victims had been sexually abused. 130 N.J. at 578. That
basic rule was refined and expanded in R.B. There, Dr. Taska,
testifying for the State as a CSAAS expert, was not asked to
testify about whether the defendant was guilty or innocent, or
to opine on the truth of the alleged victim’s allegations.
R.B., supra, 183 N.J. at 327-28. Instead, without expressly
connecting her testimony to the child victim’s conduct, the
expert referred to two of the behaviors that had been exhibited
by the child -- the torture of animals and the setting of fires
-- and told the jury that both categories of conduct are “among
the range of behaviors consistent with [CSAAS].” Id. at 326.
Because the expert’s comment on the behaviors associated
with CSAAS “was fleeting, was made without connecting those
elements to [the victim], and was made in the context of
substantial other evidence of guilt,” the Court did not reverse
the defendant’s conviction in R.B. Id. at 327, 334. The Court
21
observed, however, that “the CSAAS expert should not describe
the attributes exhibited as part of that syndrome due to the
risk that the jury may track the attributes of the syndrome to
the particular child in the case.” Id. at 327. It noted that
the testimony at issue in R.B. came “perilously close to the
setting we condemned in [J.Q.], where . . . the CSAAS expert
testified not only to ‘the various aspects of CSAAS’ but also
‘related them to the behavior she had observed in [the child
victims].’” Ibid. (second alteration in original) (quoting
J.Q., supra, 130 N.J. at 559). The Court warned that,
[i]n the future, prosecutors and trial courts
must insure that the scope of a CSAAS expert’s
testimony is carefully circumscribed and does
not exceed its proper bounds: solely to
explain to the jury why it is not uncommon for
sexually abused children, without reference to
the child victim in that case, to delay
reporting their abuse and why many children,
again without reference to the child victim in
that case, recant allegations of abuse and
deny the events at issue.
[Id. at 329.]
The Court further constrained CSAAS testimony in W.B.
There, the State’s redirect examinations of its CSAAS witness
focused on the statistical improbability that a child who
accuses an adult of sexual abuse is lying. W.B., supra, 205
N.J. at 612-13. The Court declared the CSAAS expert testimony
about the “statistical credibility of victim-witnesses”
inadmissible. Id. at 613. It observed that statistical
22
evidence “quantifying the number or percentage of abuse victims
who lie deprives the jury of its right and duty” to make an
individualized determination as to the credibility of the
victim. Id. at 613-14. The Court commented that “[a]ny CSAAS
testimony beyond its permissible, limited scope cannot be
tolerated.” Id. at 614.
As it has set narrow parameters for CSAAS testimony, the
Court has also underscored the critical importance of the trial
court’s limiting instructions to the jury. As directed in P.H.,
supra, 178 N.J. at 399-400, and W.B., supra, 205 N.J. at 621,
the CSAAS model jury charge instructs jurors that they may or
may not conclude that the child victim’s testimony is untruthful
because of his or her silence or delayed disclosure. CSAAS
Model Charge.4 Consistent with the Court’s decisions in both
4 In P.H., supra, the Court suggested prefatory language for the
Model Charge, and referred the matter to the Model Charge
Committee “for their consideration and suggestions for
refinement.” 178 N.J. at 400. Following the suggestion of the
Court in P.H., the Model Charge on CSAAS was amended to include
an opening paragraph to explain that a juror may not
“automatically” conclude that a child witness is untruthful
because the child remained silent or took time to come
forward. The Model Charge was considered again in W.B. There,
the Court directed the Model Charge Committee to consider
whether the word “automatically,” as used in the phrase, “you
may not automatically conclude that [complaining witness’s]
testimony is untruthful based only on [his or her]
silence/delayed disclosure,” should be deleted as urged by the
defendant in that case, and replaced by the language, “[you] may
or may not conclude that” the testimony is untruthful, or “words
of like effect.” W.B., supra, 205 N.J. at 621-22. Following
W.B., the Model Charge was amended to read in part, “[y]ou may
23
cases, the Model Charge advises jurors that CSAAS is “not a
diagnostic device and cannot determine whether or not abuse
occurred,” or that the alleged victim “was or was not truthful.”
Ibid. It directs jurors to consider CSAAS expert testimony only
for a limited purpose: to “explain [] certain behavior of an
alleged victim of child sexual abuse.” Ibid.
This Court’s prior jurisprudence regarding CSAAS thus
recognizes the expert testimony’s potential value to
rehabilitate a child witness, whose silence in the face of
sexual abuse might otherwise be viewed as a signal that the
abuse never occurred. Our case law acknowledges, however, the
significant risk that jurors may misconstrue the expert’s
observations to be proof of the child’s credibility and the
defendant’s guilt; it thus imposes strict limits on the
evidence. The Court’s decisions urge trial courts and counsel
to proceed with caution and care in the presentation of CSAAS
testimony before a jury. See W.B., supra, 205 N.J. at 612-13;
R.B., supra, 183 N.J. at 327-29; J.Q., supra, 130 N.J. at 577-
81.
B.
or may not conclude that [the child witness’] testimony is
untruthful based only on his/her [silence/delayed
disclosure].” CSAAS Model Charge. That is the form of the
charge given in the present case.
24
We apply the governing standard set forth in the Court’s
prior jurisprudence to the disputed testimony in this case.
In most respects, Dr. Taska’s testimony was consistent with
this Court’s prior holdings. Dr. Taska was not asked to opine
on the guilt or innocence of the defendant and did not do so.
See R.B., supra, 183 N.J. at 327-28 (noting that “vice
identified in [J.Q.] was the expert’s ultimate conclusion” as to
defendant’s guilt); J.Q., supra, 130 N.J. at 578 (same). The
expert testified that she was uninformed about the specific
defendant, victim, and family at issue in this case, consistent
with the Court’s admonitions in R.B., supra, 183 N.J. at 326-29,
and W.B., supra, 205 N.J. at 614-15. She did not present
statistical data on the percentage of children who fabricate
allegations of sexual assault, as disapproved in W.B., supra,
205 N.J. at 612-14.
Dr. Taska’s testimony in this case, however, did not
entirely conform to the limited role for CSAAS opinion evidence
that our case law has authorized. In her discussion of the
third aspect of CSAAS, entrapment and accommodation, Dr. Taska
told the jury that child victims of sexual abuse manifest a
broad spectrum of behavior as a result of the abuse:
One of the ways kids survive is by trying to
control the environment. There are many kids
who adapt by being really good -- really
other-oriented. They try to please this other
25
person in order to control whether or not
things are going to happen.
And these kids are very obedient. They look
very responsible, well-adjusted, they do well
in school in general, and this leads people
then to not believe them if they tell, but
this is a normal thing that happens in real
cases of sexual abuse. And that -- so that’s
one form of adaptation.
We have everything in between, all the way
down to the kids who’s acting out, telling
lies, setting fires, torturing small animals,
acting out from him or herself sexually.
Those kids, when they tell, also are not
believed, but their behavior is often an
acting out way of coping with what’s happening
in their lives.
In between that we have everything. You know,
a kid who is self-injuring, a kid who’s using
drugs and alcohol, a kid who’s use --
disassociating.
In one important respect, Dr. Taska’s comments were less
prejudicial than the testimony that this Court disapproved in
R.B.: in defendant’s trial, Dr. Taska did not focus on specific
idiosyncratic behaviors that had been observed in the child
victim at issue, as she did in R.B. Cf. R.B., supra, 183 N.J.
at 327. Here, however, Dr. Taska described to the jury a
complete range of behavior that might appear in children --
including well-adjusted, considerate and successful children,
destructive and sadistic children, and everything “[i]n
between.” She then attributed this array of potential conduct -
- expansive enough to encompass the behavior of almost any child
26
-- to victims of child sexual assault, and suggested that adults
should believe children who manifest any of the disparate types
of conduct that she described. That testimony raises the
concern repeatedly expressed by the Court: that a CSAAS expert,
expressly or implicitly, might relate the behavior observed in
some child sexual assault victims to the demeanor and conduct of
the victim in a given case. Clearly, in discussing entrapment
and accommodation, an expert may provide a definition of that
component of CSAAS. The expert, however, should avoid
describing an array of behaviors as characteristic of children
who are confirmed victims of child sexual abuse; such testimony
may improperly suggest to the jury that any child who exhibits
the behavior described has been the victim of sexual abuse.
Further, in the context of her discussion of the secrecy
component of CSAAS, Dr. Taska briefly commented on the
Pennsylvania State University child sexual abuse case, in which
a member of the University’s football coaching staff was
convicted of sexual assault, among other offenses, against
children. The expert used that highly-publicized case to
illustrate that media coverage of child sexual abuse typically
results in a sharp increase in reporting. To avoid confusing a
jury, a CSAAS expert should not cite another case --
particularly a publicized incident that resulted in a conviction
-- in his or her testimony. The expert’s opinion should be
27
streamlined to address the five components of CSAAS for its
rehabilitative purpose, and nothing more.
Finally, we note that Dr. Taska was called as the State’s
first witness, prior to the testimony of N.R., her parents, and
her brother, A.R. We recognize that the timing of an expert
witness’s appearance may be dictated by that witness’s
scheduling conflicts or other considerations. A trial court,
however, has discretion to “exercise reasonable control over the
mode and order of interrogating witnesses and presenting
evidence” to “(1) make the interrogation and presentation
effective for the ascertainment of the truth, (2) avoid needless
consumption of time, and (3) protect witnesses from harassment
or undue embarrassment.” N.J.R.E. 611(a). As a general rule, a
CSAAS witness should not be called as the State’s initial
witness, prior to the testimony of the child victim. That
primary position in the sequence of witnesses may mislead the
jury about the import of the expert’s opinion, and undermine its
proper function: to counter the inference that the victim’s
allegations of sexual abuse are fabricated because they were
delayed. A CSAAS expert’s appearance as the State’s initial
witness is incompatible with the exclusively rehabilitative role
of the evidence.
Accordingly, although Dr. Taska’s testimony was in part
proper CSAAS opinion evidence, it exceeded the parameters
28
imposed on CSAAS testimony. In that respect, the admission of
her testimony constituted error.
C.
We next determine whether Dr. Taska’s testimony deprived
defendant of a fair trial. An error will not lead to reversal
unless it is “clearly capable of producing an unjust
result.” R. 2:10-2. Thus, even though an alleged error was
brought to the trial judge’s attention, it will not be grounds
for reversal if it was “harmless error.” State v. Macon, 57
N.J. 325, 337-38 (1971).
An evidentiary error will not be found “harmless” if there
is a reasonable doubt as to whether the error contributed to the
verdict. State v. McLaughlin, 205 N.J. 185, 211-12 (2011)
(citing Macon, supra, 57 N.J. at 338). The prospect that the
error gave rise to an unjust result “must be real [and]
sufficient to raise a reasonable doubt as to whether [it] led
the jury to a verdict it otherwise might not have reached.”
State v. Lazo, 209 N.J. 9, 26 (2012) (second alteration in
original) (quoting R.B., supra, 183 N.J. at 330). As the Court
noted in W.B., supra, “[c]onvictions after a fair trial, based
on strong evidence proving guilt beyond a reasonable doubt,
should not be reversed because of a technical or evidentiary
error that cannot have truly prejudiced the defendant or
affected the end result.” 205 N.J. at 614.
29
Accordingly, we consider the portion of Dr. Taska’s
testimony that exceeded the bounds of CSAAS evidence in the
broader context of defendant’s trial. The State called Dr.
Taska as its first witness, but her testimony followed defense
counsel’s attack on N.R.’s credibility because of her delayed
reporting of her allegations of abuse. Dr. Taska’s presentation
to the jury was not extensive, and her discussion of the range
of behavior that child victims of sexual abuse may exhibit was
brief. As in R.B., Dr. Taska “never attempted either to
‘connect the dots’ between [the victim’s] behavior and [CSAAS]
or tender an opinion as to whether [the victim] in fact was
abused.” R.B., supra, 183 N.J. at 328.
Moreover, the trial court delivered a strong limiting
instruction, which tracked the CSAAS Model Charge and conformed
to this Court’s admonitions in P.H. and W.B., immediately before
Dr. Taska’s testimony, and again in its final charge to the
jury. Prior to the expert’s testimony, the trial court warned
the jury:
You may not consider Dr. Taska’s testimony as
offering proof that child sexual abuse
occurred in this case. [CSAAS] is not a
diagnostic device and cannot determine whether
or not abuse occurs -- occurred, rather. It
relates only to a pattern of behavior of the
victim[,] which may be present in some child
sexes -- sexual abuse cases.
You may not consider expert testimony about
[CSAAS] as proving whether abuse occurred or
30
did not occur. Similarly, you may not
consider that testimony as proving in and of
itself, that [N.R.], the alleged victim here,
was or was not truthful.
The trial court’s charge unequivocally informed the jury
that CSAAS is not a diagnostic device, directed the jury not to
consider the testimony as proof that sexual abuse had occurred
in this case or that N.R. was truthful, and stated that the
expert opinion related only to a pattern of behavior that may
appear in some victims of sexual abuse.
Significantly, the critical witness for the State was not
Dr. Taska, but N.R. herself. The record before this Court
reveals that N.R. told the jury, in simple, non-confrontational
language, why she was alone with defendant when the alleged acts
of sexual abuse occurred, and explained the setting of each
encounter. With minimal prompting by the prosecutor, using
terms appropriate to her age, N.R. recounted each alleged
instance of abuse and its aftermath. Although N.R. testified
that she did not review her statement to police, two years
earlier, in preparation for trial, her trial testimony was
fundamentally consistent with that statement, and defense
counsel had few discrepancies to explore on cross-examination.
N.R. did not leave the jury to speculate about the reason
why she delayed reporting the abuse to an adult and spoke only
to her slightly older brothers about it. She testified that she
31
did not disclose the abuse to an adult because she was afraid of
defendant, who instructed her not to tell anyone, and that she
told her brothers about the incidents in the hope that they
would try to protect her.
Although there were no witnesses to the alleged abuse,
N.R.’s account was corroborated in important respects by members
of her family. Her parents and brothers -- including her oldest
brother, G.L.R., who was called as a defense witness --
supported N.R.’s contention that defendant had access to N.R.,
on multiple occasions, with no one else present. Both brothers
concurred with her account of her disclosure of the alleged
abuse to them, and her plea that they not tell anyone what she
had told them. N.R.’s parents and brothers testified
consistently about A.R.’s disclosure to his mother and the
investigation that followed. The family members acknowledged
that defendant was affectionately greeted by all three children,
including N.R., and that he took them on outings. They
recounted, however, N.R.’s unsuccessful attempt in early 2010 to
avoid staying alone with defendant. In short, the testimony of
four family members was essentially consistent with N.R.’s
testimony on the critical questions of defendant’s access to her
and her “fresh complaint” of the alleged abuse.
In his testimony, defendant vehemently denied N.R.’s
allegations of sexual abuse. Defendant confirmed N.R.’s account
32
in material respects, however. Moreover, defendant’s
credibility was substantially challenged on cross-examination.
In his police interview, defendant denied that N.R. ever stayed
overnight at the home he shared with his wife, insisting that
only her brothers made overnight visits to his home. In his
trial testimony, defendant conceded that N.R. had stayed
overnight in his apartment; he insisted that he did not remember
stating otherwise to police officers. He admitted that, on
occasion, N.R. had wanted to leave his apartment and go outside
with her brothers, but was not permitted to do so, and stayed
with him alone.
Defendant was also confronted with self-incriminating
comments that he had made in his police interview, in which he
noted that “nobody was there” except him and N.R., and pressed
officers to tell him whether N.R. had been examined by a doctor.
He admitted that he had commented to the officers, “I have the
mind and capability to lie and remember many things. Sure,
about lies and whatever. I can go to Court. Right? And you
tell maybe 95 percent of whatever I say over here exactly in
Court.” Before the jury, defendant had no explanation for that
statement.
In light of the testimony of N.R., her family members, and
defendant himself, there is no basis to conclude that Dr.
Taska’s brief venture beyond the bounds of proper CSAAS
33
testimony changed the result of defendant’s trial. N.R.,
substantially supported by her parents and brothers, directly
confronted the question at the heart of CSAAS testimony: why
she did not immediately report the alleged abuse to an adult.
The jury heard N.R.’s explanation for her disclosure to her
brothers and her insistence that they not share her secret with
her parents. N.R.’s testimony was challenged in a skillful
cross-examination, but the jury evidently found her credible.
Moreover, defendant’s credibility was effectively impeached on
the core issue of his access to N.R.
In short, when the evidence is considered in its entirety,
it is clear that the trial court’s error with respect to Dr.
Taska was not clearly capable of producing an unjust result, and
does not warrant a new trial.
V.
Amicus curiae the OPD seeks relief that is distinct from
that requested by defendant and beyond the limited grant of
certification in this case. The OPD contends that almost all of
the hypotheses underlying CSAAS testimony have been rejected by
the scientific community over several decades, and that CSAAS
constitutes “junk science” that has no place in a courtroom. It
seeks the rejection of CSAAS evidence in its entirety on the
ground that it is unreliable and therefore inadmissible under
N.J.R.E. 702. The OPD would limit discussion of CSAAS in a
34
sexual assault prosecution to a brief jury instruction on the
reasons for which victims of abuse sometimes delay disclosure.
This Court does not consider arguments that have not been
asserted by a party, and are raised for the first time by an
amicus curiae. See Bethlehem Twp. Bd. of Educ. v. Bethlehem
Twp. Educ. Ass’n, 91 N.J. 38, 48-49 (1982) (“[A]s a general rule
an amicus curiae must accept the case before the court as
presented by the parties and cannot raise issues not raised by
the parties.”); Fed. Pac. Elec. Co. v. N.J. Dep’t of Env’tl
Prot., 334 N.J. Super. 323, 345 (App. Div. 2000) (holding that
amici curiae “must accept the issues as framed and presented by
the parties”); accord Townsend v. Pierre, 221 N.J. 36, 54 n.5
(2015). Consequently, we do not consider the OPD’s challenge to
CSAAS evidence based on developments in the relevant field.
In the event that the OPD wishes to present evidence that
CSAAS has been rejected by experts on child sexual abuse, and to
argue that it should therefore be excluded in accordance with
N.J.R.E. 702, the proper procedure is a challenge to the
admissibility of the evidence before the trial court in an
appropriate case. In such a challenge, the trial court will be
in a position to hold a pretrial hearing pursuant to N.J.R.E.
104, consider the scientific evidence presented by both sides,
and generate an appropriate record for appellate review.
VI.
35
The judgment of the Appellate Division is reversed, and the
matter is remanded to the Appellate Division so that it may
consider the issues that it did not reach in its prior review of
this case.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE PATTERSON’s
opinion.
36