Capitol Report: NJSBA urges Supreme Court to eliminate child competency test, signals concerns of unjust reliability

By NJSBA Staff posted 20 days ago

  

 The New Jersey State Bar Association (NJSBA) urged the state Supreme Court to consider eliminating the proposed procedures for evaluating and assessing the competency of child witnesses, signaling concerns about its potential for unjustified confidence in an unreliable test. The letter sent to the Supreme Court was in response to a joint committee report from the Supreme Court Practice, Evidence Rules and Family Practice committees.

The report was developed in response to the Court’s direction in State v. Bueso, 225 N.J. 193 (2016), which urged the development of model questions for assessing the competency of child witnesses. In Bueso, a five-year-old child alleged sexual abuse by a babysitter. The child was questioned in the trial court and was found competent to testify, but the appellate court disagreed. The Supreme Court upheld the determination of competency, but directed that “courts and counsel should develop the record on the question of competency by means of thorough and detailed questioning of the child witness.”

The joint committee worked with a number of experts in child development and psychology, and ultimately came up with a two-part protocol for assessing the competency of a child witness and an alternative form of commitment to tell the truth for child witnesses who have been determined to be competent. Under the protocol, for children aged nine and older, carefully worded questions would be posed verbally to elicit the child’s understanding of: 1) the difference between telling the truth and a lie, and 2) the negative consequences of telling a lie. For young children and other children unable to accurately answer the verbal questions, a picture-based model would be used.

The NJSBA pointed out that the joint committee was not tasked with actually recommending changes to the law, but with recommending ways to conduct assessments informed by social research. “As a result, the notion of eliminating competency assessments for children has not been thoroughly considered or analyzed.”

Against this backdrop, the NJSBA raised “grave concerns” about the reaction of a child to an additional assessment when the child has already been significantly traumatized. “For these reasons, the NJSBA believes that no assessment of a child’s credibility is necessary,” said NJSBA President Kimberly A. Yonta in the letter. “Children should, instead, always be permitted to testify if they are available, with the triers of fact being permitted to weigh the credibility of the testimony as they deem appropriate.”

The NJSBA further pointed out that if the proposal is adopted, the pictures of “authority figures” as discussed in the report should incorporate “authority figures [who] represent the diverse cultural backgrounds of each child being assessed,” and not be limited to a judge, doctor or social worker—as is contained in the report. “The protocols should be carefully reviewed to ensure they are flexible enough to account for significantly different responses depending on the child’s culture and lived experience, and to ensure that unintended biases are not introduced though questions, pictures or other media as part of the protocol.”

The NJSBA urged the Supreme Court to take these concerns into consideration regarding eliminating the competency test altogether. The full report may be viewed at njcourts.gov. A copy of the NJSBA letter may be found at njsba.com.

Proposed juror impartiality initiatives deserve additional reviews before implementation, NJSBA tells Supreme Court

Weighing in on proposed recommendations for new model voir dire questions and updates to model civil and criminal jury charges, the NJSBA urged the Supreme Court to employ “thoughtful consideration before they are implemented.” The Association responded to the Supreme Court’s invitation to provide written comments on its ongoing efforts to support juror impartiality through awareness and discussion of implicit bias.

The two-part proposal recommends a supplemental juror orientation process to include a concise video about bias, including both explicit and implicit bias, to emphasize the importance of jurors recognizing the effects of implicit biases so they can discharge their duty of impartiality. It also recommends new voir dire to be used in civil and criminal trials following up on the video directly asking if the juror can be impartial in light of same.

The NJSBA recommended the video be created to reflect the proper tone, provide diverse and wide-ranging examples of what implicit bias can encompass, provide examples of how to identify implicit bias, and provide methods to minimize its impact on deliberation. “Because the content of the actual video that will be shown to jurors is so central to the effectiveness of the proposal, the NJSBA believes it will be important to have an opportunity to review it before it is shown to any potential jurors,” Yonta wrote in the Association’s letter to the Court.

Regarding the voir dire questions, the NJSBA suggested an inquiry as to whether jurors could fairly decide the case, notwithstanding any potential biases they may have. In addition, it recommended “a more robust and detailed inquiry of potential jurors, tailored to the particular case.” It also suggested juror biographical questions should be updated and peremptory challenges be affirmatively kept intact to be tested with a focus group before implementation.

A full copy of the report may be found at njcourts.gov. The NJSBA letter may be found at njsba.com.

This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.

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