190 A.3d 442 (N.J. 2018), A-50-2016, State v. J.L.G.

Docket Nº:A-50-2016
Citation:190 A.3d 442, 234 N.J. 265
Party Name:STATE of New Jersey, Plaintiff-Respondent, v. J.L.G., a/k/a J.L.J., Defendant-Appellant.
Attorney:Lauren S. Michaels, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Lauren S. Michaels and Joseph J. Russo, Deputy Public Defender, of counsel and on the briefs). Najma Q. Rana, Assistant Prosecutor, argued the cause for respondent (...
Case Date:July 31, 2018
Court:Supreme Court of New Jersey

Page 442

190 A.3d 442 (N.J. 2018)

234 N.J. 265

STATE of New Jersey, Plaintiff-Respondent,


J.L.G., a/k/a J.L.J., Defendant-Appellant.

No. A-50-2016

Supreme Court of New Jersey

July 31, 2018

Argued April 24, 2018

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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On certification to the Superior Court, Appellate Division.

Lauren S. Michaels, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Lauren S. Michaels and Joseph J. Russo, Deputy Public Defender, of counsel and on the briefs).

Najma Q. Rana, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, Jersey City, attorney; Najma Q. Rana and Stephanie Davis Elson, Assistant Prosecutor, on the briefs).

John J. Zefutie, Jr., argued the cause for amicus curiae The Last Resort Exoneration Project at Seton Hall University School of Law (Duane Morris and The Last Resort Exoneration Project at Seton Hall University School of Law, attorneys; John J. Zefutie, Jr., of counsel and on the briefs, and D. Michael Risinger, on the briefs).

Brian J. Neary argued the cause for amicus curiae The Association of Criminal Defense Lawyers of New Jersey (Law Offices of Brian J. Neary, attorneys; Brian J. Neary, Hackensack, on the brief).

Alexi Machek Velez argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Alexi Machek Velez, Alexander Shalom, Edward L. Barocas, and Jeanne M. LoCicero, on the brief).

Sarah E. Elsasser, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Sarah E. Elsasser, of counsel and on the brief).

Theo Mackey Pollack submitted a brief on behalf of amicus curiae American Professional Society on the Abuse of Children (The Law Office of Theo Mackey Pollack, and Munger, Tolles & Olson, attorneys).

Laura Sunyak, Assistant Mercer County Prosecutor, submitted a letter brief on behalf of amicus curiae County Prosecutors Association of New Jersey (Richard T. Burke, President, Hackettstown, attorney; Laura Sunyak and Joseph Paravecchia, Assistant Mercer County Prosecutor, of counsel and on the brief).

Herbert I. Waldman submitted a brief on behalf of amicus curiae New Jersey Association for Justice (Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, attorneys; Herbert I. Waldman and Rubin M. Sinins, Newark, on the brief).



[234 N.J. 271] I. Introduction

Thirty-five years ago, Dr. Roland Summit, M.D., a clinical psychiatrist, identified five categories of behavior that were reportedly common in victims of

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child sexual abuse: secrecy; helplessness; entrapment and accommodation; delayed, conflicted, unconvincing disclosure; and retraction. Dr. Summit drew on various sources, including his own clinical practice, and asserted that the five behaviors comprised a syndrome -- the "Child Sexual Abuse Accommodation Syndrome" (CSAAS).

Courts across the nation embraced Dr. Summit’s findings, which paved the way for experts to testify about the syndrome in criminal sex abuse trials. In 1993, this Court found that CSAAS evidence was sufficiently reliable to be admitted. State v. J.Q., 130 N.J. 554, 617 A.2d 1196 (1993).

[234 N.J. 272] In the decades since Dr. Summit’s article first appeared, neither the American Psychiatric Association nor the American Psychological Association has recognized CSAAS. The syndrome does not appear in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), the mental health field’s authoritative list of mental disorders. And the notion of a child abuse accommodation "syndrome" has been examined, critiqued, and undermined by a number of scientific studies.

Defendant challenged the CSAAS evidence introduced at trial. To better assess defendant’s claim, we remanded the matter for a hearing before the trial court. Four experts testified at the hearing, and the parties introduced and discussed numerous scientific studies.

We rely heavily on the record developed at the hearing. Based on what is known today, it is no longer possible to conclude that CSAAS has a sufficiently reliable basis in science to be the subject of expert testimony. We find continued scientific support for only one aspect of the theory -- delayed disclosure -- because scientists generally accept that a significant percentage of children delay reporting sexual abuse.

We therefore hold that expert testimony about CSAAS in general, and its component behaviors other than delayed disclosure, may no longer be admitted at criminal trials. Evidence about delayed disclosure can be presented if it satisfies all parts of the applicable evidence rule. See N.J.R.E. 702. In particular, the State must show that the evidence is beyond the understanding of the average juror.

That decision will turn on the facts of each case. Here, because the victim gave straightforward reasons about why she delayed reporting abuse, the jury did not need help from an expert to evaluate her explanation. However, if a child cannot offer a rational explanation, expert testimony may help the jury understand the witness’s behavior. We therefore ask the Committee on Model Jury Charges to develop an appropriate instruction on delayed disclosure.

[234 N.J. 273] In this appeal, there was overwhelming evidence of defendant’s guilt. Among other things, the victim made an audio recording of an act of sexual abuse that took place several weeks before she spoke with the police. As a result, we find that the expert testimony about CSAAS introduced at trial was harmless, and we affirm defendant’s convictions.

II. Facts and Procedural History

A. Facts

A Hudson County Grand Jury charged defendant J.L.G. in a nine-count indictment in 2012. After the trial court severed four of the counts and the State dismissed a fifth, defendant went to trial on the following charges: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and third-degree witness tampering, N.J.S.A. 2C:28-5(a). Defendant’s

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stepdaughter, whom we refer to bye the fictitious name "Bonnie" to protect her identity, testified at trial about an escalating pattern of sexual abuse that defendant carried out against her for roughly eighteen months. We rely on the trial record to recount the facts.

Defendant began dating Bonnie’s mother around 1996, when Bonnie was an infant. He moved in with them months later and assumed the role of Bonnie’s father.

According to Bonnie, the sexual abuse began in 2011, when she was fourteen and defendant was about thirty-two. One day, defendant called Bonnie into the living room and showed her his exposed penis. Over the course of the next year and a half, defendant had Bonnie record him masturbating, ejaculated on her chest area, touched her, had her masturbate him, performed oral sex on her, digitally penetrated her, and had vaginal intercourse with her four or five times.

Bonnie said the sexual abuse occurred on a daily basis, always against her wishes. After each incident, defendant put money on her dresser. At one point, he gave her an iPhone. He also [234 N.J. 274] instructed her not to say anything and threatened her; defendant pointed a gun at Bonnie and threatened to hurt her, her mother, or her brother if word got out. Bonnie told no one about the abuse, which she found embarrassing.

A close friend of Bonnie’s mother visited the family apartment one day in or around 2011 and found defendant lying on top of Bonnie. Although defendant wore jeans, the friend noticed that he had an erection. When Bonnie’s mother heard about the incident, she questioned her daughter. With a knife in hand, the mother said she would kill defendant "if he’s doing something." Bonnie was afraid her mother would follow through with the threat and denied any sexual activity. Although Bonnie claimed she wanted to tell her mother, she also did not "want her to do anything for her to get locked up."

In May or June of 2012, Bonnie used her iPhone to record the last episode of sexual abuse. She felt that she could no longer "stick it out" at home until age 18 and wanted to have proof when the abuse eventually came to light.

Bonnie testified that defendant performed oral sex on her and also tried to penetrate her on this occasion. The State introduced the audio recording at trial and played it during Bonnie’s testimony. The jury heard very descriptive, at times graphic, language about sexual acts. At one point, Bonnie refused to follow defendant’s directive about how to position herself. At another, defendant said, "I’m not [ejaculating] in you" and cursed at Bonnie. Throughout the recording, Bonnie repeatedly stated that "[t]his is going to be the last thing."

After an argument with defendant on June 13, 2012, Bonnie told her mother that defendant had "been raping [her] for the past year and a half." Bonnie added that she had proof and tried to play the iPhone recording. According to Bonnie’s mother, defendant tried to take away the phone, turned "white as a ghost," and left the apartment after she decided to call the police.

[234 N.J. 275] Bonnie made a statement to the prosecutor’s office and placed two phone calls to defendant under the guidance of detectives. During the recorded conversations, defendant repeatedly said he was "sorry," at Bonnie’s urging, but he did not specify the reason or admit to any sexual misconduct. He also offered to give Bonnie money, pay for her phone, and...

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