Acknowledging that the victim's out-of-court statements were inadmissible under existing exceptions to the hearsay rule, the Appellate Division, relying primarily on Evidence Rule 5, adopted a "heretofore unstated" exception to the hearsay rule that would authorize admissibility of a child's out-of-court statements concerning sexual abuse if made to a parent, confidant, physician, or other professional under circumstances that afford "sufficient indicia of reliability to justify admission." Statev. D.R., 214 N.J. Super. 278, 293, 296-97 (1986).
The New Jersey cases that have applied the exception demonstrate an unwavering adherence to that rationale. For example, when a statement is made to a physician for the purpose of providing evidence for a court proceeding rather than for treatment purposes, courts have held that the declarant lacks a "treatment motive" and that therefore the statement is inadmissible. See State v. D.R., 214 N.J. Super. 278, 288-89 n. 4, 518 A.2d 1122 (App.Div. 1986), rev'd on other grounds, 109 N.J. 348, 537 A.2d 667 (1988); State ex rel. C.A., 201 N.J. Super. 28, 33-34, 492 A.2d 683 (App.Div. 1985). Similarly, if a declarant is unaware that his or her statements will enable a physician to make a diagnosis and administer treatment, such statements are not considered sufficiently trustworthy to qualify under the exception.
* * * [F]irst, the declarant's motive in making the statement must be consistent with the purposes of promoting treatment [or diagnosis]; and second, the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis.Stephens, 774 P.2d at 72 (quoting United States v. Renville, 779 F.2d 430, 436 (8th Cir.1985)). “[W]hen a statement is made to a physician for the purpose of providing evidence for a court proceeding rather than for treatment purposes, courts have held that the declarant lacks a “treatment motive” and that therefore the statement is inadmissible.” R.S. v. Knighton, 125 N.J. 79, 87, 592 A.2d 1157, 1161 (N.J.1991); see also State v. D.R., 214 N.J.Super. 278, 289, n. 4, 518 A.2d 1122, 1127 (N.J.App.Div.1986), rev'd on other grounds,109 N.J. 348, 537 A.2d 667 (N.J.1988); State in Interest of C.A., 201 N.J.Super. 28, 33–34, 492 A.2d 683, 686 (App.Div.1985). Conversely, the medical diagnosis or treatment exception does not require an independent showing of the declarant's trustworthiness because the trustworthiness can be established by a showing that it was reasonably pertinent to diagnosis and was relied upon by the healthcare professional to arrive at an expert diagnosis.
This court found on appeal that the victim's out-of-court statements were not admissible under any of the recognized hearsay exceptions. SeeState v. D.R. , 214 N.J.Super. 278, 287–88, 518 A. 2d 1122 (App. Div. 1986). However, we also perceived the need for the adoption of a new exception to the evidence rules allowing hearsay from child abuse victims to be admitted in certain circumstances, where there are “sufficient indicia of reliability to justify admission[.]”
Although we find the error harmless, we note that the trial court should not have considered defendant's confessions and other corroborative evidence in finding the victims' statements trustworthy under Evid.R. 63(33). In State v. D.R., 214 N.J. Super. 278, 518 A.2d 1122 (App.Div. 1986), rev'd on other grounds, 109 N.J. 348, 537 A.2d 667 (1988), we alluded to the congruity of a defendant's confession and the child's story in finding the victim's statement trustworthy. 214 N.J. Super. at 298, 518 A.2d 1122.
A child's youth and naivete, however, are not substitutes for the stress of a nervous excitement, which is the basis for the hearsay exception. We have recently expanded the hearsay exceptions contained in our Rules of Evidence to include a "naivete" or "tender years" exception in sexual abuse cases when a child relates events of the abuse to a parent, health professional, or other confidant.State v. D.R., 214 N.J. Super. 278 (App.Div. 198 6), certif. granted 107 N.J. 104 (March 3, 1987).
To be reliable, a prior statement offered under the Rule need not have circumstantial probabilities of trustworthiness equivalent to those reflected in the various exceptions to the hearsay rule.Cf. Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2538, 2539, 65 L.Ed.2d 597 (1980); State v. D.R., 214 N.J. Super. 278, 296 (App.Div. 1986). The hearsay exceptions are designed generally to admit certain out-of-court statements where the declarant is not a witness at the hearing.
Cross-petition for certification granted. (See 214 N.J. Super. 278)
Div. 2012) (holding that the charging document need not specify the date of abuse so long as it otherwise gives defendant sufficient notice of the crime to prepare a defense); Cannel, N.J. Criminal Code Annotated, cmt. 4 on N.J.S.A. 2C:14-2 (2020) (observing that "[t]he definitions of penetration and contact in 2C:14-1 indicate that these are to be viewed as generally distinct forms of touching"); State v. D.R., 214 N.J. Super. 278, 298-99 (App. Div. 1986) (noting that "[s]eparate sexual acts, although encompassed in a single episode, may each be the basis for a separate conviction"); State v. Fraction, 206 N.J. Super. 532, 536 (App. Div. 1985) (holding that two different acts of penetration occurring during the same criminal episode represented distinct insults to the victim's dignity and defendant could be punished separately for each).