L.Q., Matter of

• Decision Date: 25 July 1988
• Parties: In the Matter of Subpoena Issued to L.Q., a Juvenile.
• Court: New Jersey Superior Court — Appellate Division

Page 41

227 N.J.Super. 41

545 A.2d 792

In the Matter of Subpoena Issued to L.Q., a Juvenile.

Superior Court of New Jersey,

Appellate Division.

Argued June 6, 1988.

Decided July 25, 1988.

Marshall L. Gates, Succasunna, for appellant (Catherine M. Langlois, Morristown, of counsel and on the brief).

Jared L. McDavit, Newton, for respondent (Richard E. Honig, Sussex County Prosecutor, attorney; Jared L. McDavit, on the brief).

Before Judges J.H. COLEMAN, O'BRIEN and HAVEY.

The opinion of the court was delivered by

O'BRIEN, J.A.D.

Pursuant to leave granted, L.Q., a 17-year-old female, and her parents appeal from the denial of their application to quash a subpoena issued to L.Q. to testify before the grand jury. We reverse and remand for further proceedings.

L.Q. was born on November 11, 1970. Between February and June 1986, on 25 or more occasions while a sophomore in high school, ¹ 15-year-old L.Q. was the victim of several incidents of sexual contact by one of her male teachers. ² It was not until the fall of 1986, after L.Q. ran away from home to talk to her brother who was attending college in New York City, that her parents learned of these incidents. When L.Q. returned home, her parents reported it to the high school administration. L.Q. was present and explained the nature and details of the incidents to the high school principal. ³ When the teacher was confronted with the report, he immediately resigned. Toward the end of September 1986, L.Q. gave a statement concerning the incidents to the police.

The prosecutor originally scheduled the matter for presentation to the grand jury on December 11, 1986 and subpoenaed L.Q., her mother and her brother. At the request of the attorney for L.Q. and her parents, a meeting was held with the prosecutor. At that meeting, the attorney produced a letter from the school psychologist to the school superintendent as to his counseling of L.Q. In that letter the psychologist said:

I strongly feel that any judicial action to prosecute the teacher involved would have a potentially serious effect on [L.Q.]. It would reopen wounds, increase her public visibility, and decrease her coping skills. In short, I feel [L.Q.] could commit suicide.

The attorney requested that the prosecutor postpone presentation of the matter to the grand jury and L.Q.'s parents requested that the prosecution be abandoned. The prosecutor agreed to postpone the grand jury presentation.

In January 1987, L.Q.'s attorney forwarded to the prosecutor a letter dated January 10, 1987 from Dr. Ellis J. Mischel, who is medical director and psychiatric consultant for a counseling center where L.Q. and her parents had sought help. In his letter, Dr. Mischel stated:

She is a sixteen year old high school student in emotional turmoil an [sic] is expressing suicidal thoughts.

He noted that L.Q. was being counseled by Rev. Anne Clarke, who is a pastoral counselor at the center, and recommended that no legal action be taken for the next two to three months.

In a report from Dr. Mischel dated April 7, 1987, sent to the prosecutor on April 22, he recommended "that L.Q. not be forced to appear in court but that she continue her therapy with Rev. Clarke." A memorandum dated March 16, 1987 from Rev. Clarke was enclosed in which she said:

[L.Q.] suffered from depression and had serious suicidal thoughts last September.... She continues to struggle with depression and threatens suicide still as the only alternative if she has to go to court. I think the depth of her depressive neurosis with suicidal intent must be taken seriously. She cannot tolerate the peer pressure that would be induced by a court appearance.

The prosecutor requested that L.Q. cooperate in obtaining a second evaluation of her emotional stability and her ability to appear before a grand jury without risk of harm to her mental or emotional health. At the State's expense she was examined by Frederick W. Bender, Ph.D., who submitted his psychological evaluation on July 15, 1987. In describing her mental status, Dr. Bender said in part:

Both insight and judgment appeared mildly impaired. Present suicidal or homicidal ideation was neither acknowledged nor denied by [L.Q.]. [L.Q.] reported suicidal ideation episodically occurring in September and October of 1986.

The doctor observed that L.Q.'s father saw nothing "wrong" with his daughter. "He believes that she is fine and believes she has put this event behind her." The doctor further observed:

Despite [L.Q.'s] minimization of her psychological stress and her need for therapy, she presents herself as having significant psychological concerns at this time. It is acknowledged that much of the presented psychological concerns appear to focus on the possibility of testifying in Court which is one event she believes to be unduly traumatic for her life. [L.Q.] seeks to 'undue' [sic] and 'redo' the past and to return to the relationships and structure and support previously experienced in her life.

Further, the doctor stated:

[L.Q.] reports the incident resulted in a loss of friends, a period of extremely poor eating, of going to Port Authority and considering suicidal ideation, of a fear of further suspicion and rumors that will harm her reputation.

[L.Q.] reports these extreme feelings regarding 'asking for it' and 'going back for more' in the alleged relationship. She denies any need on her part to prevent something like this alleged relationship with a teacher from happening to someone else. She reports not caring if he is punished. She knows that she'll feel extremely depressed and suicidal as she did in September and October, should she have to appear in court or before a Grand Jury.

In his evaluation the doctor found among other things:

... At the present time, she does not appear to be suicidal, though she may become involved in a self-fulfilling prophecy of suicidal ideation should she testify in Court or before a Grand Jury. The significant resources that exist should be marshalled should her testimony be required. The emotional liability demonstrated by [L.Q.], the discrepancies between her verbalized need and the perceptions of her parents, her severe projection of the dire consequences of her testimony and public humiliation and ridicule, and her strong fear that this will somehow destroy her ability to survive as a person should be considered regarding any further involvement....

There is no ability to predict how [L.Q.] may react on an impulsive moment should this testifying possibility come about. However, her MAPI results suggest a strong motivation to religious values and conventional behavior that should serve [L.Q.] well in this circumstance.

On December 4, 1987, a grand jury subpoena ad testificandum was served upon L.Q.'s lawyer. On January 27, 1988, the trial judge entertained a petition for an order to show cause to quash the subpoena which he treated as a motion to quash the subpoena. The judge heard arguments of counsel, reviewed the certification of L.Q.'s father, and the reports of Dr. Mischel, Rev. Clarke and Dr. Bender, and assumed that if called they would testify as to the contents of their reports. However, L.Q.'s attorney suggested that the judge hear from those persons who had made professional evaluations as to her health even though he agreed they probably would testify substantially in accord with their reports.

At first the judge viewed the question to be whether he had the authority as a matter of law to quash the subpoena. He noted that, although he could set the matter down for a hearing, it seemed to him a complete waste of time. Then the judge said: "Is there any good reason why I shouldn't say aye or nay today with reference to the quashing of the subpoena?" When the motion judge persisted in his view that the matter was one of law as to whether or not he had the authority to quash the subpoena, the prosecutor stated: "Obviously the court has authority to quash subpoenas when the bases for quashing the subpoena is laid before the Court." The prosecutor placed the issue in terms of "the competency of a witness," laying upon the witness the burden of showing she is incompetent as a witness.

The motion judge noted that L.Q. had shown suicidal tendencies in the past and that the latest report before him was dated July 1987, almost seven months before the hearing, but concluded There has to come a time when the Petitioner and her family are going to have to face the facts. As we discussed in chambers, one of the things that troubles me, the reaction of this young lady is no different than any other sexual assault. I don't say that in any demeaning way whatsoever. I say it in a very sympathic way. But there comes a time that at the risk of sounding like a male chauvinist, we all have to recognize its a fait accompli and pick up our lives and go on from there.

The judge concluded:

So it's a very delicate, but a very serious balancing act which the Court is called upon to do. We are back to whether or not I should sign the Order to Show Cause and I don't think you have the causes, very bluntly.

The order entered on February 5, 1988 denying the petition was stayed by the motion judge until February 16, 1988 to permit L.Q. and her parents to appeal. We granted leave to appeal on March 15, 1988 and we now reverse and remand.

No person has a privilege to refuse to be a witness except as provided by the Rules of...