sessions -- constitute more than sufficient evidence to support a
finding that the interrogations created a substantial risk that
the statements and anticipated testimony are unreliable, and
therefore justify a taint hearing.
Once defendant establishes that sufficient evidence of unreliability
exists, the burden shall shift to the State to prove the reliability
of the proffered statements and testimony by clear and convincing
evidence. Hurd, supra, 86 N.J.  at 546. Hence, the ultimate
determination to be made is whether, despite the presence of some
suggestive or coercive interview techniques, when considering the
totality of the circumstances surrounding the interviews, the
statements or testimony retain a degree of reliability sufficient
to outweigh the effects of the improper interview techniques. The
State may attempt to demonstrate that the investigatory procedures
employed in a case did not have the effect of tainting an individual
child's recollection of an event. To make that showing, the State
is entitled to call experts to offer testimony with regard to [**46]
the suggestive capacity of the suspect investigative procedures.
The defendant, in countering the State's evidence, may also offer
experts on the issue of the suggestiveness of the interrogations.
However, the relevance of expert opinion focusing essentially on
the propriety of the interrogation should not extend to or encompass
the ultimate issue of the credibility of [*322] an individual child
as a witness. Cf. State v. R.W., supra, 104 N.J. at 26 (holding
that absent strong showing of abnormality and substantial need
child may not be subjected to psychiatric examination by expert
for purpose of determining credibility). The State is also entitled
to demonstrate the reliability of the child's statements or testimony
by proffering independent indicia of reliability. See Ford, supra,
79 N.J. at 137 (inquiring, "whether there are sufficient indicia
of reliability to outweigh the 'corrupting effect of the suggestive
identification itself.'") (quoting Manson, supra, 432 U.S. at 114,
97 S. Ct. at 2253, 53 L. Ed. 2d at 154). [**47] It bears repeating
that the focus of the pretrial hearing is on the coercive and
suggesting propensity of the investigative questioning of each
child and whether that questioning, examined in light of all relevant
circumstances, gives rise to the substantial likelihood that the
child's recollection of actual events has been irremediably distorted
and the statements and the testimony concerning those events are
unreliable.
In choosing the burden of proof to be imposed on the State, we are
satisfied that the clear-and-convincing-evidence standard serves
to safeguard the fairness of a defendant's trial without making
legitimate prosecution of child sexual abuse impossible. We have
applied the clear and convincing evidence standard to other areas
in which the issue of illegal or unreliable evidence was in question.
See, e.g., Sugar, supra, 100 N.J. at 239 (applying "clear and
convincing evidence" standard as burden of proof with respect to
"inevitable discovery" discovery claim), Hurd, supra, 86 N.J. at
546 (imposing "clear and convincing" standard on party who proffers
hypnotically refreshed testimony).  [**48]
We have not hesitated to employ the sternest standard of proof in
cases involving egregious prosecutorial or police misconduct that
implicates judicial integrity and the administration of justice.
Gookins, supra, 135 N.J. at 51 (relying on the procedure out-lined
in Sugar, supra, 84 N.J. at 25 and imposing beyond a reasonable
doubt standard of proof to [*323] counteract egregious constitutional
violations); State v. Gerald, 113 N.J. 40, 118, 549 A.2d 792 (1988)
(requiring proof beyond a reasonable doubt that confession was
voluntary). Here, however, although we find the prosecutorial
investigations to have been professionally inept, we cannot conclude
that the improper investigatory techniques were the result of
conscious bad faith rather than a lack of training coupled with
over-zealousness.
Our decision today should make clear that the investigatory techniques
employed by the prosecution in this case are unacceptable and that
prudent prosecutors and investigatory agencies will modify their
investigatory practices to avoid those kinds of errors [**49] and
to conform to those standards that are now accepted by the professional
and law enforcement communities. Therefore, we conclude that the
need to deter prosecutorial misbehavior will be adequately fulfilled
by the clear and convincing-evidence standard.
Finally, if it is determined by the trial court that a child's
statements or testimony, or some portion thereof, do retain sufficient
reliability for admission at trial, then it is for the jury to
determine the probative worth and to assign the weight to be given
to such statements or testimony as part of their assessment of
credibility. Experts may thus be called to aid the jury by explaining
the coercive or suggestive propensities of the interviewing techniques
employed, but not of course, to offer opinions as to the issue of
a child-witness's credibility, which remains strictly a matter for
the jury. R.W., supra, 104 N.J. at 26. We add the observation that
the jury must make that determination in light of all the surrounding
circumstances, and without reference to the trial court's determination
and ruling on admissibility. See Crane v. Kentucky, 476 U.S. 683,
106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986) [**50] (stressing defendant's
right to adduce evidence of circumstances surrounding confession
even after Court determines confession admissible); State v. Hampton,
61 N.J. 250, 271, 294 A.2d 23 (1972) ("admissibility of evidence
is for the Court . . . it is admitted when a proper predicate is
laid for it. If the predicate is disputed but the court is satisfied
the evidence should [*324] be received, it is accepted for jury
consideration, with an instruction that if they found it credible,
then it is admissible for consideration in making up their verdict.").
C.
In conclusion, we find that the interrogations that occurred in
this case were improper and there is a substantial likelihood that
the evidence derived from them is unreliable. We therefore hold
that in the event the State seeks to re-prosecute this defendant,
a pretrial hearing must be held in which the State must prove by
clear and convincing evidence that the statements and testimony
elicited by the improper interview techniques nonetheless retains
a sufficient degree of reliability to warrant admission at trial.
Given the egregious prosecutorial abuses evidenced in this record,
the challenge [**51] that the State faces is formidable. If the
statements and proffered testimony of any of the children survive
the pretrial hearing, the jury will have to determine the credibility
and probative worth of such testimony in light of all the surrounding
circumstances.
V
The judgment of the Appellate Division is affirmed.
***
Chief Justice Wilentz and JUSTICES Clifford, Pollock, O'hern,
Garibaldi, and Stein join in Justice Handler's opinion.
Note: Proper names of the investigators have been deleted throughout.
--- FMail/386 1.0g
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