A.B. v. Y.Z.

PER CURIAM.

In 1997, plaintiffs, A.B.¹, individually and as guardians ad litem for their son, H.T., brought a civil action against defendant, Y.Z., for sexual abuse, assault and battery, and intentional infliction of emotional distress. Defendant failed to file or serve an answer or any other pleading. A default was entered against him, and the matter proceeded directly to a proof hearing to determine damages. Prior to the proof hearing, plaintiffs requested that the testimony of their son, who was by then twenty-one years old, be conducted on closed circuit television because confronting defendant face-to-face would “freak [him] out.” Defendant objected on the grounds that N.J.S.A. 2A:61B-1(e)(2), the Child Sexual Abuse Act, specifically permits closed circuit testimony only when the victim is sixteen years of age or younger and testifying in open court would result in a substantial likelihood of severe emotional or mental distress. The trial judge granted plaintiffs’ request.

The issue before us is whether the trial judge’s decision to permit the twenty-one-year-old victim to testify by closed circuit television outside of the presence of defendant in a civil proof hearing was erroneous. The Appellate Division held that it was but that the error was harmless. We now affirm.

I

The details of the victim’s sexual abuse need not be recounted here insofar as an entirely procedural issue is before us. In brief, he was abused by defendant, a teacher, four or five times a week, over the course of two years, from 1998 to 1995. Defendant was arrested and convicted on federal and state charges and spent almost five years in prison.

In May 1997, plaintiffs filed a civil action for damages on behalf of H.T. against defendant, the X.Y.Z. school, and its headmaster, for the continual sexual abuse of their son occurring while defendant was a teacher and H.T. was a student at the X.Y.Z. School. The complaint also alleged assault and battery and intentional infliction of emotional distress. The school and its headmaster later settled with plaintiffs.

After some procedural missteps, an order of default was entered against defendant, which he made no effort to vacate. A proof hearing was scheduled, without a jury, to determine the quantum of damages. Prior to the proof hearing, plaintiffs’ attorney requested that H.T. testify outside the presence of defendant. Because H.T. was twenty-one years of age at the time, defendant objected. The trial judge agreed to plaintiffs’ request, and defendant subsequently requested reconsideration.

Plaintiffs then submitted a letter, dated October 9, 2002, from Dr. Julie Lippmann, a psychologist, who had previously treated H.T. but who had not seen him in a number of years. In the letter, she stated:

At the request of his mother, [plaintiff], I am writing to express my concern about the prospect [of] [H.T.’s] testifying in the presence of [defendant] at the upcoming hearing on Friday, October 11. As you are aware, I treated [H.T.] for the depressive and posttraumatic sequelae of his victimization for several years following his disclosure of sexual abuse. / have not seen or treated him recently and thus I cannot speak to his current emotional state or functioning. However, from my years of experience at the UMDNJ Center for Children’s Support, specializing in the evaluation and treatment of children alleged to have been sexually abused, I have seen that one’s suddenly having to confront an alleged perpetrator face to face is potentially traumatic to most young victims. In fact, such a confrontation in the courtroom may well be so intimidating as to inhibit the victim’s ability to testify.

In view of his history, I believe that it would be highly disturbing for [H.T.] to have to see [defendant] under these circumstances. Although I have not personally had the opportunity to discuss this issue with him, I understand that, according to his mother, when the prospect of seeing [defendant] was broached with [H.T.] this past August, he indicated that it would “freak me out if I have to see this guy!” [H.T.] is a college student, residing far away from his family’s support and supervision. I share his parents’ concern about the impact of this experience on his mental state, particularly as he would return alone to college following the hearing, distressed and perhaps disorganized by this experience, and be without the resources for support and assistance that he might need in its aftermath. [ (Emphasis added).]

Defense counsel objected to the use of the closed circuit television on the grounds that Dr. Lippmann had not seen H.T. in four years and, more importantly, because H.T. was twenty-one years old at the time of the hearing, thus rendering the statute inapplicable. Defendant argued that the letter provided a “completely unpersuasive” basis upon which to exclude defendant from H.T.’s presence, noting that Dr. Lippmann, “by her own admission, [has] no current information about [H.T.]” After placing the burden on defense counsel to demonstrate that there was some prejudice to defendant in permitting the arrangement, and finding defendant could not satisfy that burden, the judge allowed the use of the closed circuit television.

During his testimony, H.T. sat in one room, while the judge, defendant, and defense counsel stayed in the courtroom. Although the judge permitted defendant’s attorney to be in the same room as H.T. and to leave the room to ask defendant for additional questions, if any, the attorney elected to remain in the courtroom with defendant during H.T.’s testimony.

During the testimony, defendant could see and hear H.T. on the video, and H.T. could hear defense counsel. H.T. was the only witness called at the hearing to testify on the issue of compensatory damages. At the close of the hearing, the trial judge awarded $500,000 in compensatory and $150,000 in punitive damages. Defendant appealed.

The Appellate Division found that the trial judge incorrectly permitted H.T. to testify via closed circuit television. “[T]he procedure is a statutory one, and its provisions must be followed.” The panel noted that the statute requires the witness to be sixteen years of age or younger at the time testimony is given (not when the abuse occurred) and that H.T. was twenty-one years of age at the time of the hearing. The panel also found that the trial judge incorrectly placed the burden of demonstrating prejudice at the hearing on defendant but concluded that, on appeal, Rule 2:10-2 required defendant to prove that the error was “clearly capable of producing an unjust result.” Because the court found that he did not do so, it concluded that the use of closed circuit television was harmless.²

We granted defendant’s petition for certification on the harmless error issue. A.B. v. Y.Z., 182 N.J. 629, 868 A.2d 1032 (2005).

II

The Child Sexual Abuse Act attempts to accommodate a child-victim by permitting his or her testimony to be conducted via closed circuit television; however, specific findings must be made. The relevant provision states:

e. (1) The court may, on motion and after conducting a hearing in camera, order the taking of the testimony of a victim on closed circuit television at the trial, out of the view of the jury, defendant, or spectators upon making findings as provided in paragraph (2) of this subsection.

(2) An order under this section may be made only if the court finds that the victim is 16 years of aye or younger and that there is a substantial likelihood that the victim would suffer severe emotional or mental distress if required to testify in open court. The order shall be specific as to whether the victim will testify outside the presence of spectators, the defendant, the jury, or all of them and shall be based on specific findings relating to the impact of the presence of each.

(4) The defendant’s counsel shall be present at the taking of testimony in camera. If the defendant is not present, he and his attorney shall be able to confer privately with each other during the testimony by a separate audio system.

[N.J.S.A 2A:61B-1(e)(1), (2), (4) (emphasis added).]

Here, the victim was over the maximum age; thus, the provisions of the statute were not available to him. No alternative legal basis was advanced by plaintiffs as a source of the judge’s power to authorize closed circuit testimony. Permitting H.T. to testify via closed circuit television was therefore erroneous. The question presented is whether that error warrants reversal.

Ill

Although the Sixth Amendment right to confrontation is not applicable in civil proceedings, due process guarantees civil litigants a measure of confrontation. In re Wolf, 231 N.J.Super. 365, 376-77, 555 A.2d 722 (App.Div.), certif. denied, 117 N.J. 138, 564 A.2d 862 (1989). At issue here is whether, despite the trial errors, defendant was given sufficient opportunity to confront his accuser within the civil setting.

The Appellate Division analyzed the issue as follows:

[W]e conclude that the error was harmless, in that it was not “clearly capable of producing an unjust result.” R. 2:10-2; Campo v. Tama, 133 N.J. 123, 132 [627 A.2d 135] (1993). While we agree with defendant that the trial judge erred in placing upon him the burden of demonstrating prejudice as part of the analysis concerning whether the statute would be applied, the question of prejudice, explored at length by the judge, is clearly relevant at this stage of the proceedings. Defendant’s assertion, in his brief, that it is not incumbent on him to demonstrate prejudice on appeal is simply wrong.

A number of considerations lead us to the conclusion of harmless error. This was a civil proof hearing after default, not a trial. And unlike the case where liability is in issue, defendant had no personal information about the matters to which H.T. testified, concerning the impact upon him of defendant’s acts, which arguably might have been shaded by the witness testifying in defendant’s absence. Other than an abstract right to “confront” the witness in person, we perceive no harm to defendant under the circumstances. Indeed, when pressed at oral argument, counsel could offer no persuasive examples of harm flowing from this ruling. Thus, this case is quite different from Matter of Wolf, supra, 231 N.J.Super. 365 [555 A.2d 722], where we overturned a decision dismissing a tenured public school teacher charged with unbecoming conduct with some students, based on the record of a proceeding before an Administrative Law Judge, at which the teacher was excluded from the courtroom when the children testified. There, as here, the witnesses testified via closed circuit television. Id. at 373-75 [555 A.2d 722], However, the key to the outcome in Wolf was that the case was “fraught with credibility determinations” and the teacher might have been able to “tell his attorney on a question-by-question or even word-by-word basis of circumstances where he thought the children might be lying or exaggerating so that they could be more effectively cross-examined.” Id. at 375 [555 A.2d 722]. As the court further explained in a footnote, “this is especially true where the children were constantly departing from their prior statements which had been supplied to petitioner and his counsel. Thus, there was a continuing need for immediate contact between attorney and client for background and assessment of the new versions being recounted by the witnesses.” Id. at 375 fn. 10 [555 A.2d 722].

Here, in contrast, defendant and his attorney had ample time to prepare and the attorney was permitted to and did cross-examine H.T. thoroughly. The attorney was also given leave to conduct her cross-examination in person, but she chose not to do so. We do not minimize the “right” of one party in a civil action to “confront” adverse witnesses, id. at 376-77 [555 A.2d 722], but point again to the fact that this was a proof hearing, in which the defaulting party’s participation, including the extent and manner of cross-examination, is not a matter of right but subject to judicial discretion. Jugan v. Pollen, 253 N.J.Super. 123, 129-35 [601 A.2d 235] (App.Div.1992). We find no abuse of discretion in the present case.

Because due process guarantees civil litigants a measure of confrontation, the burden to prove the denial of such confrontation harmless beyond a reasonable doubt rests with plaintiffs, who benefited from the circumscription of defendant’s right to face his accuser. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710 (1967). Thus, to the extent that the appellate panel cast that obligation on defendant, it was in error.

We subscribe, however, to the remainder of the Appellate Division’s conclusions regarding harmlessness. First, defendant could not enlighten the court regarding the emotional effects of the sexual abuse on H.T. Second, his lawyer engaged in a very complete cross-examination of H.T. Third, H.T. was aware that defendant was observing him and listening to every word of his testimony. Fourth, and most importantly, this was a proof hearing, in which a defendant’s participation may be subject to circumscription depending on the facts. See BJL Leasing Corp. v. Whittington, Singer, Davis & Co., 204 N.J.Super. 314, 322-23, 498 A.2d 1262 (App.Div.1985).

Given the unique nature of a proof hearing and the full cross-examination by defense counsel, we are convinced that plaintiffs satisfied their burden of proving that the procedure adopted by the judge was harmless beyond a reasonable doubt.

IV

The judgment of the Appellate Division is affirmed. The matter is remanded to the trial judge for reconsideration of the issue of punitive damages as previously ordered by the Appellate Division.

1 A.B. refers to both, parents of H.T.

2 The court reversed and remanded the case for reconsideration of punitive damages, an issue that is not before us.