STATE OF NEW JERSEY v. W.S.C.
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5316-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
W.S.C.,
Defendant-Appellant.
_________________________________
Argued telephonically April 16, 2018 –
Decided April 26, 2018
Before Judges Simonelli, Haas and Gooden
Brown.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
13-04-1301.
Alyssa Aiello, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Alyssa Aiello, of counsel and on the brief).
Linda A. Shashoua, Assistant Prosecutor,
argued the cause for respondent (Mary Eva
Colalillo, Camden County Prosecutor,
attorney; Linda A. Shashoua, of counsel and
on the brief).
PER CURIAM
Tried before a jury on a two-count indictment, defendant
W.S.C.1 was convicted of first-degree aggravated sexual assault,
N.J.S.A. 2C:14-2(a)(1) (count one); and second-degree endangering
the welfare of a child,
N.J.S.A. 2C:24-4(a) (count two). The
trial judge sentenced defendant to seventeen years in prison on
count one, subject to an 85% period of parole ineligibility
pursuant to the No Early Release Act,
N.J.S.A. 2C:43-7.2, with a
five-year period of parole supervision upon release. The judge
sentenced defendant to a concurrent seven-year term on count two.
The judge advised defendant that he was subject to Megan's Law
registration and reporting requirements, and parole supervision
for life. This appeal followed.
On appeal, defendant raises the following contentions:
POINT I
THE TRIAL COURT ERRED IN PERMITTING EXPERT
TESTIMONY REGARDING CHILD SEXUAL ASSAULT
ACCOMMODATION SYNDROME (CSAAS) WHERE THE
ALLEGED CHILD-VICTIM NEVER CLAIMED THAT SHE
WAS SEXUALLY ABUSED OR ENGAGED IN BEHAVIOR
ASSOCIATED WITH CSAAS.
POINT II
REVERSAL IS REQUIRED BECAUSE THE TRIAL COURT
FAILED TO INSTRUCT THE JURY ON THE PERMISSIBLE
AND FORBIDDEN USES OF THE CSAAS EVIDENCE, AS
IT IS REQUIRED TO DO WHEN SUCH EVIDENCE IS
ADMITTED AT TRIAL (Not raised below).
1
We use initials and fictitious names to protect the identity of
the victim.
2 A-5316-14T3
POINT III
THE TRIAL COURT'S DISPERSAL OF THE JURY FOR
NINE DAYS DURING DELIBERATIONS WAS A
STRUCTURAL DEFECT IN THE TRIAL SO
INTRINSICALLY HARMFUL THAT REVERSAL IS
AUTOMATICALLY REQUIRED (Not raised below).
POINT IV
A REMAND FOR RESENTENCING IS REQUIRED BECAUSE
THE 17-YEAR PRISON TERM IMPOSED ON W.S.C., WHO
HAD NO PRIOR CRIMINAL HISTORY, WAS EXCESSIVE
AND BECAUSE THE COURT MISAPPLIED THE
SENTENCING FACTORS.
POINT [V]2
CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME IS
NOT BASED ON RELIABLE SCIENCE, AND THEREFORE,
SHOULD NOT HAVE BEEN ADMITTED AT TRIAL.
For the reasons that follow, we agree with defendant's
argument in Point II that the judge's failure to instruct the jury
on the proper use of CSAAS expert testimony was prejudicial error.
Therefore, we reverse defendant's conviction and sentence, and
remand for further proceedings without reaching defendant's other
arguments.
I.
Defendant is the biological father of V.C. (Vanessa), who was
five years old at the time of the incident that is at the center
of this case. Vanessa and her three-year-old brother were spending
2
By leave granted, defendant's attorney raised this point in a
supplemental brief.
3 A-5316-14T3
the weekend at defendant's home, where he lived with his
girlfriend, J.M., and her seven-year-old son. During the week,
defendant's two children lived with their mother, S.W.
During the afternoon on August 26, 2012, defendant and Vanessa
were upstairs in the house. J.M. was in the downstairs living
room. J.M. testified that defendant came downstairs and asked
J.M. to come to the upstairs bathroom because Vanessa was bleeding
from her vagina. When she got to the bathroom, J.M. saw the child
sitting on the toilet. Vanessa's underpants were bloody. Because
there was no blood in the bowl, J.M. had Vanessa lay down on a
clean towel. When she did so, J.M. could see there was blood
coming from "her vagina area." J.M. put a clean pair of underpants
and a feminine pad on Vanessa.
J.M. called S.W. to let her know that Vanessa was bleeding.
S.W., who was a registered nurse, told J.M. to take Vanessa to the
hospital emergency room. Before she did so, J.M. placed Vanessa's
bloody panty in a plastic bag so she could show it to the medical
staff. When J.M. and Vanessa left for the hospital, defendant
stayed at home to care for the two other children.
At the hospital, a sexual assault nurse examiner (SANE nurse
or nurse) with the county prosecutor's office did a physical
examination of Vanessa. The nurse testified that the child "was
very, very, very happy, pleasant, [and] cooperative" during the
4 A-5316-14T3
examination. Detective Jayne Jones from the local police
department was also in the emergency room during the examination.
She testified that Vanessa was "calm," sitting up in bed, and
playing with an Etch-a-Sketch while in the examination room.
The nurse observed redness on the outside of Vanessa's labia;
a three-millimeter laceration on the inside of the labia, right
at the vaginal opening; a large purple bruise at the site of the
laceration, and "a lot of dried blood" as well as "an active
bleed." The nurse used an "alternative light" and "special
goggles" to look for saliva or semen secretions on Vanessa's body,
but was unable to detect any. The nurse took vaginal and anal
swabs from Vanessa for later testing. She also collected the
underpants and pad Vanessa was wearing when she got to the
hospital, dried the items, and placed them in an evidence box.
Around 8:00 p.m. Detective Nicholas Villano, who was assigned
to the county prosecutor's office, came to the hospital, collected
the evidence kit from the nurse, and interviewed Vanessa. The
child stated she did not know how she got hurt. Vanessa told the
detective that no one had touched her in a "not o.k. spot," and
said she would tell him, her mother, or defendant if anyone had.3
3
The detective videotaped the interview and it was played for
the jury at the trial.
5 A-5316-14T3
By this time, J.M. had returned home to care for the other
children, so that defendant could join Vanessa at the emergency
room. Detective Jones testified she heard defendant tell Vanessa
that she was not going to get any ice cream that night because the
other two children had eaten all their dinner. The detective said
this made the child "real sad." Detective Jones stated that
defendant's demeanor "was calm" while he spoke to Vanessa. On the
other hand, the detective asserted that defendant was "aggressive"
toward her because when she was introduced to him, he said he knew
who Detective Jones "is, she's the one who plays bad cop."
The emergency room then transferred Vanessa to a hospital in
Philadelphia. S.W. met her there around 12:30 a.m. on August 27,
2012.4 When she arrived, Vanessa was in bed and defendant was
sitting next to her on the bed. By this time, it was well past
Vanessa's bedtime. S.W. testified that the child was "very quiet
and very withdrawn," and would not let the doctors examine her.
S.W. also stated that defendant's behavior was "bizarre" and
"seemed inappropriate" because he "was just laughing, joking,
[and] trying to goof around with" the child.
4
S.W. was in Nevada visiting her mother when J.M. called to tell
her that Vanessa was bleeding. S.W. immediately made arrangements
to fly home.
6 A-5316-14T3
S.W. took Vanessa home to her house later in the morning.
The child "went to sleep immediately" and "slept for a long time."
When she woke up, S.W. gave her a shower in the bathroom. S.W.
testified that Vanessa then "began crying . . . [a]nd it appeared
as if she was going to tell me what happened. And she shut down."
S.W. tried to encourage the child to speak to her, but Vanessa
said she was afraid she would get "daddy" in trouble. The child
then "shut down" again and "wouldn't talk any further."
A couple of days later, S.W. asked Vanessa how she was feeling
and the child stated "it really hurt when it first happened." S.W.
then asked, "Oh, well what did happen?" Vanessa "proceeded to
tell [S.W.] that she fell on a couch." Vanessa explained that she
was on the couch in the children's playroom at defendant's house,
and defendant was vacuuming the room. Defendant lifted the couch
so he could vacuum underneath it. When he did so, Vanessa told
S.W. she jumped and landed on the arm of the couch.
S.W. confirmed there was a couch in the playroom and that it
had "very little padding on the back and the arms[.]" J.M.
testified that all three children often played, stood, and jumped
on the couch. Earlier on the weekend in question, J.M. told
Vanessa to "get down" from the couch after she saw the child "up
on the back . . . part of the couch, sitting up there."
7 A-5316-14T3
S.W. testified that Vanessa was very "matter of fact" and
"wasn't emotional" when she told her what happened. The child
repeated this same account to S.W. on two other occasions, each
time stating she "hurt [her]self down there" when she fell on the
couch.
At trial, Vanessa testified she could not remember how she
got hurt.5 She also stated she could not recall if there was a
couch at defendant's house.
The State called Dr. Julie Lippmann, a licensed psychologist
with expertise in child sexual abuse, to testify regarding CSAAS.6
Dr. Lippmann described five behavioral patterns associated with
victims of child abuse. These behavioral patterns are: secrecy;
helplessness or dependency; entrapment and accommodation; delayed
and unconvincing disclosure; and retraction.
In identifying secrecy as a "precondition" for sexual abuse
of a child, Dr. Lippmann explained:
[I]f someone is going to sexually abuse a
child they really don’t want anybody to know
about that. They may want to have continued
5
Vanessa was seven years old when she testified.
6
"[T]he use of . . . [CSAAS] expert testimony is well settled."
State v. W.B.,
205 N.J. 588, 609 (2011). The Court first discussed
and accepted this psychological phenomenon over twenty years ago
in State v. J.Q.,
130 N.J. 554, 579 (1993), to permit the State
to present expert testimony to "explain why many sexually abused
children delay reporting their abuse, and why many children recant
allegations of abuse and deny that anything occurred."
8 A-5316-14T3
access to that child. They certainly don’t
want to be recognized as someone who abuses a
child. And so the person who may offend
against a child has a very strong, vested
interest in making sure that that child
doesn’t tell. Usually a person who abuses a
child who is in their care or who they know
really well, really knows that child well
enough to know how to engage that child in
maintaining the secret.
Dr. Lippmann described some of the ways this is accomplished,
including by direct threats, whether physical or psychological,
so that children keep the secret because they recognize the "bad
consequences" that will result if they tell. Dr. Lippmann also
described "helplessness or dependency" as a precondition for
sexual abuse, explaining that children are dependent on their
parents and "are not in the position to reject the advances of
. . . a loved caretaker."
Further, Dr. Lippmann stated that the accommodation aspect
of the syndrome included "all kinds of symptoms" and that "many
children don’t seem, or at least on the surface, . . . to have
symptoms at all. And maybe just trying their very hardest to be
the perfect kid, so nobody will know and perhaps they will be
safe." Dr. Lippmann also explained that "it is very much
expectable" that disclosure will be delayed, seem inconsistent,
or never occur at all, and that if a child does not tell, it is
not a reason to dismiss the allegation.
9 A-5316-14T3
Dr. Lippmann never interviewed Vanessa, was not familiar with
the specific facts of the present case, and did not render an
opinion as to what may or may not have happened between defendant
and Vanessa. Significantly, while the trial judge provided the
jury with a general instruction prior to Dr. Lippmann's testimony
on how to evaluate the testimony of an expert witness, he did not
give the jury the special Model Jury Charge7 concerning CSAAS
testimony either before or after Dr. Lippmann testified.
Alex Porigow, a forensic scientist with the Serology Unit
of the New Jersey State Police, also testified as an expert for
the State. Porigow tested the vaginal and anal swabs that the
SANE nurse took from Vanessa in the emergency room, and found they
were "negative" for semen and saliva. However, Porigow testified
he found semen on the "back of the crotch panel" of Vanessa's
underpants. On cross-examination, Porigow stated he could not
determine "how long that biological stain had been on those
panties." He also testified that biological material can be
transferred from one surface to another.8
7
Model Jury Charge (Criminal), "Child Sexual Abuse Accommodation
Syndrome" (CSAAS Model Charge) (rev. May 16, 2011).
8
Perhaps in anticipation of this testimony, J.M. testified that
defendant masturbated in the house "on occasions" and that there
was only one bathroom in the house.
10 A-5316-14T3
Melissa Johns, the State's DNA expert, testified that based
upon her testing, the DNA profile obtained from the semen found
on Vanessa's underpants matched the DNA profile she obtained from
a buccal swab defendant provided to her.
Dr. Monique Higginbotham, an expert in pediatrics and child
abuse pediatrics, also testified for the State. Dr. Higginbotham
conducted a physical examination9 of Vanessa on August 28, 2012.
Dr. Higginbotham testified that the right and left outer lips of
Vanessa's vagina were "very tender"; she had a bruise on her
clitoris; and there was "significant" and "contiguous" bruising
going from the labia to the hymen, which was also bruised.
Dr. Higginbotham opined that the contiguous nature of the
bruising indicated a "penetrating injury," which caused the doctor
to be "very concerned" that Vanessa's injuries resulted from sexual
abuse. Dr. Higginbotham rejected the suggestion that Vanessa
suffered a "straddle injury" by jumping and landing on the arm of
a couch while her legs were straddled. The doctor explained that
it would be "very atypical to have injury to the hymen in a
straddle injury."
Dr. Maria McColgan, who also qualified as an expert in
pediatrics and child abuse pediatrics, testified for defendant.
9
Dr. Higginbotham videotaped the examination, and it was
therefore available for review by defendant's expert.
11 A-5316-14T3
After reviewing the videotape of Vanessa's examination and the
child's medical records, Dr. McColgan stated that Vanessa's
injuries could have occurred from a straddle injury as she reported
to S.W. a few days after she got home from the hospital. The
doctor acknowledged she could not rule out sexual assault as the
cause of the injuries because of the bruise to Vanessa's hymen.
However, Dr. McColgan opined that the "bruise that's on the base
of the [child's] hymen seems contiguous, seems continuous if you
will, with the bruises on the outermost structures[,]" and,
therefore, she did not believe the bruise on the child's hymen
provided "definitive evidence of penetration."
Defendant did not testify on his own behalf at the trial.
During the trial judge's final charge to the jury at the
conclusion of the testimony, he again failed to instruct them on
the proper use of CSAAS testimony.10 Defendant did not object to
this omission.
II.
As stated at the outset, we focus our attention on defendant's
argument in Point II of his brief that the judge plainly erred by
neglecting "to instruct the jury on the permissible and forbidden
10
Instead, the judge merely gave a general instruction on expert
testimony and stated it applied to all of the experts who
testified.
12 A-5316-14T3
uses of the CSAAS evidence, as . . . required . . . when such
evidence is admitted at trial." The principles guiding our review
of this contention are well settled. "[A]ppropriate and proper
charges are essential for a fair trial." State v. Baum,
224 N.J.
147, 158-59 (2016) (quoting State v. Reddish,
181 N.J. 553, 613
(2004)). Jury instructions must give a "comprehensible
explanation of the questions that the jury must determine,
including the law of the case applicable to the facts that the
jury may find." Id. at 159 (quoting State v. Green,
86 N.J. 281,
287-88 (1981)).
"[I]n reviewing any claim of error relating to a jury charge,
the 'charge must be read as a whole in determining whether there
was any error[.]'" State v. Gonzalez,
444 N.J. Super. 62, 70-71
(App. Div. 2016) (quoting State v. Torres,
183 N.J. 554, 564
(2005)). If, like here, defense counsel did not object to the
jury charge at trial, the plain error standard applies. State v.
Singleton,
211 N.J. 157, 182-83 (2012).
Under that standard, we reverse only if the error was "clearly
capable of producing an unjust result," id. at 182 (quoting R.
2:10-2), and consider the totality of the circumstances when making
this determination. State v. Marshall,
123 N.J. 1, 145 (1991).
However, the Supreme Court has often cautioned that in a criminal
trial, "erroneous jury charges presumptively constitute reversible
13 A-5316-14T3
error . . . and are poor candidates for rehabilitation under the
harmless error philosophy." Singleton,
211 N.J. at 196 (citations
omitted).
The Court's observation in Singleton is particularly apt here
because of the special nature of CSAAS expert testimony. The
underlying rationale supporting the use of this testimony "was
first presented in a comprehensive manner by Dr. Roland Summit."
W.B.,
205 N.J. at 609. According to Dr. Summit's scientific
research of child sexual abuse victims, such victims may engage
in five categories of behavior, "each of which contradicts the
most common assumption of adults." Id. at 610. As noted above
in our discussion of Dr. Lippmann's testimony, those identified
behaviors are: (1) secrecy; (2) helplessness; (3) entrapment and
accommodation; (4) delayed disclosure; and (5) retraction. Ibid.
(citing J.Q.,
130 N.J. at 568-70).
When CSAAS expert testimony is presented at a criminal trial,
it is offered to "explain[] a child's often counter-intuitive
reactions" to sexual abuse. Ibid. (citing J.Q.,
130 N.J. at 579).
However, "[t]he 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
14 A-5316-14T3
to sexual abuse." State v. J.R.,
227 N.J. 393, 411 (2017) (citing
W.B.,
205 N.J. at 610).
Thus, the expert can "not attempt to 'connect the dots'
between the particular child's behavior and the syndrome, or opine
whether the particular child was abused." W.B.,
205 N.J. at 611
(citing State v. R.B.,
183 N.J. 308, 328 (2005)). "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.'" J.R.,
227 N.J. at 411 (quoting State v.
P.H.,
178 N.J. 378, 395 (2004)).
Because "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." Id. at 413.
(Emphasis added). Indeed, the Court has noted that the
introduction of CSAAS testimony "is clearly hazardous ground" that
requires the trial judge to ensure that "[t]he jury's function to
make credibility determinations [is not] usurped by expert
testimony." R.B.,
183 N.J. at 328; see also J.R.,
227 N.J. at 414
(stating that absent clear limiting instructions on the proper use
of CSAAS testimony, there is "significant risk that jurors may
misconstrue the expert's observations to be proof of the child's
credibility and the defendant's guilt").
15 A-5316-14T3
Thus, in P.H., the Court explained that the trial court must
instruct the jury that:
The law recognizes that stereotypes about
sexual assault complainants may lead some of
you to question [complaining witness's]
credibility based solely on the fact that [he
or she] did not complain of the alleged abuse
sooner. You may not automatically conclude
that [complaining witness's] testimony is
untruthful based only on [his or her]
silence/delayed disclosure. Rather, you may
consider the silence/delayed disclosure along
with all of the other evidence including
[complaining witness's] explanation for
his/her silence/delayed disclosure when you
decide how much weight to afford to
[complaining witness's] testimony. You also
may consider the expert testimony that
explained that silence is, in fact, one of the
many ways in which a child may respond to
sexual abuse. Accordingly, your deliberations
in this regard should be informed by the
testimony you heard concerning child abuse
accommodation syndrome.
[
178 N.J. at 400.]
This mandatory language was later added to the CSAAS Model
Charge. J.R.,
227 N.J. at 413 n.4. The CSAAS Model Charge further
requires the judge to instruct the jury as follows:
You may not consider Dr. [A]'s testimony
as offering proof that child sexual abuse
occurred in this case . . . The Child Sexual
Abuse Accommodation Syndrome is not a
diagnostic device and cannot determine whether
or not abuse occurred. It relates only to a
pattern of behavior of the victim which may
be present in some child sexual abuse cases.
You may not consider expert testimony about
the Accommodation Syndrome as proving whether
16 A-5316-14T3
abuse occurred or did not occur. Similarly,
you may not consider that testimony as
proving, in and of itself, that . . . the
alleged victim here, was or was not truthful.
Dr. [A]'s testimony may be considered as
explaining certain behavior of the alleged
victim of child sexual abuse. As I just
stated, that testimony may not be considered
as proof that abuse did, or did not, occur.
The Accommodation Syndrome, if proven, may
help explain why a sexually abused child may
[delay reporting and/or recant allegations of
abuse and/or deny that any sexual abuse
occurred].
. . . .
The weight to be given to Dr. [A's]
. . . testimony is entirely up to you. You
may give it great weight, or slight weight,
or any weight in between, or you may in your
discretion reject it entirely.
You may not consider the expert testimony
as in any way proving that [defendant]
committed, or did not commit, any particular
act of abuse. Testimony as to the
Accommodation Syndrome is offered only to
explain certain behavior of an alleged victim
of child sexual abuse.
[CSAAS Model Charge.]
As our late colleague, Judge Sylvia Pressler, observed over
twenty years ago, a trial court's "failure to give the jury a
limiting instruction as to the use it could make of the CSAAS
evidence" is an "egregious" error that warrants reversal even
where defense counsel did not request such an instruction. State
v. W.L.,
278 N.J. Super. 295, 302 (App. Div. 1995). This is so
17 A-5316-14T3
because, without a proper limiting instruction on the use of CSAAS
testimony, a jury may improperly consider the expert's testimony,
in and of itself, as evidence of defendant's guilt or the victim's
credibility. Ibid.
Applying these principles here, we are constrained to
conclude that the trial judge's failure to provide the jury with
any guidance as to how it could consider the State's CSAAS
testimony was plain error requiring the reversal of defendant's
conviction. As noted above, the State presented Dr. Lippmann's
testimony to explain why a child might not report sexual abuse.
Because of the inherent risk in the introduction of CSAAS
testimony, however, the judge was required to carefully and fully
instruct the jury on the limited purpose of this testimony and
provide the specific guidance set forth in the CSAAS Model Charge
concerning how the evidence could be considered. The judge's
failure to provide this critically important information to the
jury was clearly capable of producing an unjust result and,
therefore, defendant's conviction and sentence must be reversed.
In so ruling, we reject the State's contention that the
omission of the mandatory CSAAS instructions was harmless error.
The State correctly points out that the judge gave the jury a
18 A-5316-14T3
general instruction on expert testimony11 when Dr. Lippmann
testified and again at the conclusion of the trial in his final
charge to the jury. However, that general instruction did not
warn the jury that the CSAAS evidence could not be considered as
establishing that Vanessa was a victim of, or that defendant
committed, an act of sexual abuse. Likewise, the judge's general
charge did not even mention that the jury could not use Dr.
Lippmann's testimony, in and of itself, to determine whether
Vanessa was or was not truthful.
The State also argues that the judge's error in omitting the
critical CSAAS instruction was harmless because the State
otherwise presented "overwhelming evidence" of defendant's guilt.
Again, we disagree.
As the State points out, the DNA evidence against defendant
was strong, and Dr. Higginbotham provided expert medical testimony
that Vanessa suffered a "penetrating" injury. At the same time,
however, the SANE nurse found no evidence of semen on the child's
body at the time of her examination; the vaginal swabs were
negative for defendant's DNA; and defendant's medical expert
testified that Vanessa suffered a "straddle injury" that could
11
Model Jury Charge (Criminal), "Expert Testimony" (rev. Nov. 10,
2003).
19 A-5316-14T3
have been caused by falling on the arm of the couch with her legs
straddled.
Moreover, Vanessa never accused defendant of sexually abusing
her and, after returning home from the hospital, claimed she was
hurt when she jumped and landed on the arm of the couch. At trial,
she stated she could not remember how she was injured.
Under these circumstances, the State made an apparent
tactical decision to introduce CSAAS testimony as a means of
explaining why a child victim of sexual assault might keep such
an assault a secret. However, this testimony is only properly
admitted when it is accompanied by the carefully crafted limiting
instructions set forth in the CSAAS Model Charge that ensure the
jury will not misunderstand its narrow purpose or otherwise misuse
it. Because none of the required instructions were provided to
the jury, the error can certainly not be deemed harmless.
As noted above, our determination of the jury instruction
issue obviates the need to address defendant's other arguments on
appeal, including his assertions that the CSAAS testimony was
irrelevant and that CSAAS testimony is not sufficiently reliable
to meet the admissibility standards of N.J.R.E. 702. In the event
of a new trial, defendant may raise both of these arguments.
In this regard, we note that the Supreme Court has recently
decided to reexamine the scientific basis of CSAAS. See State v.
20 A-5316-14T3
J.L.G.,
229 N.J. 606 (2017). In J.L.G., the Court granted
certification on the question of "the reliability of CSAAS
testimony" and summarily remanded the matter to the trial court
for a Rule 104 hearing "to determine whether CSAAS evidence meets
the reliability standard of N.J.R.E. 702, in light of recent
scientific evidence." Id. at 607. We were advised at oral
argument that the trial court has completed its task on remand
and, on September 1, 2017, submitted a written opinion to the
Court for its consideration. In that opinion, the trial court
concluded there is no general acceptance of CSAAS among the
relevant scientific community, rendering CSAAS testimony
inadmissible under N.J.R.E. 702. On remand, the parties may
certainly address the conclusions reached by the trial court and
any further guidance that becomes available from the Supreme Court
on this issue.
Reversed and remanded. We do not retain jurisdiction.
21 A-5316-14T3
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