State v. David Bueso(074261) , 225 N.J. 193 ( 2016 )


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  •                                                      SYLLABUS
    (This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
    convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
    interest of brevity, portions of any opinion may not have been summarized).
    State of New Jersey v. David Bueso (A-15-14) (074261)
    Argued November 9, 2015 -- Decided June 8, 2016
    PATTERSON, J., writing for a unanimous Court.
    In this appeal, the Court considers the manner in which a trial court should assess the competency of a child
    witness to testify.
    In 2009, when M.C. was five years old, her father’s cousin, M.L.G., was her occasional babysitter.
    According to M.C.’s mother, M.C. reported that defendant, who was M.L.G.’s boyfriend, sexually abused her on
    two occasions. The first incident occurred on an unspecified date when M.L.G. chipped a tooth and went into the
    bathroom, leaving M.C. with defendant. M.C. claimed that she was abused by defendant for the second time on
    March 29, 2009, hours before a surprise birthday party held for M.L.G. at the child’s home.
    The matter was referred to the Division of Youth and Family Services (now the Division of Child
    Protection and Permanency). The Division contacted the county prosecutor’s office and, in a subsequent interview
    with a detective, M.C. reiterated the allegations that her mother had reported. Defendant was charged with two
    counts of first-degree aggravated sexual assault, two counts of second-degree sexual assault, and two counts of
    third-degree endangering the welfare of a child. Three of the counts related to the incident alleged to have occurred
    on the day M.L.G. chipped her tooth. The remaining charges arose from the alleged incident on the day of M.L.G.’s
    birthday party. Prior to trial, the trial court denied defendant’s motion to dismiss the indictment and also denied his
    motion to suppress M.C.’s statement to her mother and the recording of the detective’s interview of the child.
    At trial, the State called M.C. to the stand for a competency examination. The State asked M.C. about
    whether it would be a lie for her to tell her teacher that she had done her homework, when she had not. M.C. agreed
    that would be a lie. The State then asked if M.C. understood that she had to tell the truth in court. M.C. confirmed
    that she did. Thereafter, the trial court offered defense counsel the opportunity to ask questions, to which defense
    counsel responded, “[n]o objection, Judge.” After briefly questioning M.C., the court found M.C. competent and
    permitted her to testify.
    M.C. testified that the abuse occurred “a lot” and “more than four times.” She reiterated her account of the
    abuse on the day that M.L.G. chipped her tooth, but stated that on the day of the birthday party, defendant “didn’t do
    it.” Defendant denied all allegations of sexual abuse and claimed that he was never alone with M.C. at the time of
    either of the incidents. He claimed that on the day of M.L.G.’s birthday party, identified as the date on which he
    sexually abused the child for the second time, he was at an auto repair shop waiting for his employer’s vehicle to be
    repaired. He supported his alibi defense with the testimony of employees at the auto repair shop, who corroborated
    his testimony.
    The jury convicted defendant of one count each of aggravated sexual assault, sexual assault, and
    endangering the welfare of a child, all relating to the incident on the day that M.L.G. chipped a tooth, and acquitted
    him of the three remaining charges. After merger of the sexual assault offense into the aggravated sexual assault
    offense, the court sentenced defendant to a fifteen-year term of incarceration subject to the No Early Release Act,
    with parole supervision for life pursuant to Megan’s Law. The court imposed a concurrent four-year term of
    incarceration for endangering the welfare of a child.
    Defendant appealed his conviction and sentence. For the first time on appeal, defendant argued that the
    trial court erred when it ruled that M.C. was competent to testify. The panel reversed defendant’s conviction,
    holding that the trial court’s competency determination constituted plain error. The panel found that the trial judge
    was required to question M.C. personally, and to directly ascertain her comprehension of a witness’s duty to tell the
    truth, but that the court improperly delegated that responsibility to the prosecutor. The panel held that the record
    before the trial court did not support its determination that M.C. was competent. The Court granted the State’s
    petition for certification. 
    200 N.J. 40
    (2014).
    HELD: When the witness is a child, the concepts of truth, falsehood, and punishment may be difficult to reach with
    open-ended questions. Subject to the discretion of the trial judge, who must carefully monitor the examination to
    ensure that the child’s answers are his or her own, leading questions may be used in a competency inquiry. There
    1
    was no plain error in the procedure used by the trial court in this case.
    1. Because defendant did not object to the trial court’s ruling that M.C. was competent to testify, Rule 2:10-2
    prescribes the applicable standard of review. That rule provides that any error or omission shall be disregarded by
    the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result. (pp. 11-
    12)
    2. N.J.R.E. 601 provides that all persons should be qualified to testify, and that disqualification should be the
    exception. Accordingly, any claim of disqualification must be strictly construed against exclusion and in favor of
    admitting any relevant testimony the witness may offer. When the witness is an adult, competency hinges in part on
    the witness’s capacity to understand the nature and obligations of an oath. That objective is complicated in the case
    of a child witness, who may be incapable of understanding either the concept of divine punishment or the legal
    implications of false swearing. In the majority of reported decisions in which appellate courts affirmed competency
    determinations, the judge personally conducted the questioning of the child. (pp. 13-15)
    3. Direct questioning by the trial judge, with immediate follow-up on an evasive or inconclusive response, may be
    the most effective method to probe the child’s understanding of the importance of telling the truth in the formal
    setting of a courtroom. However, the Court has never held that the questioning of the witness is the exclusive
    province of the trial judge as a child may be more candid and forthcoming in response to questions posed by an
    attorney with whom he or she has a rapport. It is the trial court’s charge to make certain that any questioning by
    counsel is conducted fairly, and to supplement counsel’s questions as necessary to ensure the integrity of the
    proceeding. Subject to the trial court’s careful oversight, leading questions may be used in the examination of a
    child witness. Accordingly, a court may in its discretion allow counsel to use leading questions in order to elicit
    testimony from a child. (pp. 16-19)
    4. With substantial discretion, the trial court’s task is to determine whether the child witness appreciates the
    distinction between truth and lies. The trial court’s competency inquiry should focus on whether the child
    understood her duty to tell the truth. The testimony should establish that the child understood the distinction
    between telling the truth and lying, that he or she understood that it was important to tell the truth in court, and that
    he or she anticipated negative consequences in the event of a lie. (pp. 19-24)
    5. Here, the trial court’s decision was based on a three-part inquiry. First, using leading and non-leading questions,
    the prosecutor introduced the concept of telling a lie in the context of M.C.’s obligation to do her homework. In the
    second phase, conducted by the prosecutor posing leading questions, the inquiry became more pointed. The
    prosecutor inquired about the consequences of lying, and compared the duty to tell the truth at school to the duty to
    testify truthfully in court. Finally, the trial judge questioned the witness, challenging her to declare whether the
    judge’s own hypothetical misstatement of fact –- that a rectangular book was round -– constituted the truth or a lie.
    It is within a trial court’s broad discretion to permit questioning by the prosecutor, particularly in the initial phase of
    the inquiry as the witness becomes comfortable in the intimidating setting of a courtroom. (pp. 24-25)
    6. When the witness is a child, the essential concepts of truth, falsehood, and punishment may be difficult to reach
    with open-ended questions. Subject to the discretion of the trial judge, leading questions may be used in a
    competency inquiry. There was no plain error in the procedure used by the trial court in this case. Given N.J.R.E.
    601’s preference for the admission of relevant evidence, and the plain error standard that governs this case, the
    inquiry conducted before the trial court was minimally sufficient to support the trial court’s finding of competency.
    Although the examination conducted in this case satisfied N.J.R.E. 601, the inquiry was well short of ideal. Trial
    courts and counsel should develop the record on the question of competency by means of thorough and detailed
    questioning of the child witness. (pp. 25-29)
    The judgment of the Appellate Division is REVERSED. The matter is REMANDED to the Appellate
    Division for consideration of the issues it did not reach in defendant’s appeal.
    CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and SOLOMON; and JUDGE
    CUFF (temporarily assigned) join in JUSTICE PATTERSON’S opinion. JUSTICE FERNANDEZ-VINA did
    not participate.
    2
    SUPREME COURT OF NEW JERSEY
    A-15 September Term 2014
    074261
    STATE OF NEW JERSEY,
    Plaintiff-Appellant,
    v.
    DAVID BUESO (a/k/a YASMIN
    BUESO, DAVID ABEJAEL BUESO,
    YASMIN A. BUESO, YASMIN
    ABEJAEL BUESO, YASMIN ABIGAIL
    BUESO),
    Defendant-Respondent.
    Argued November 9, 2015 – Decided June 8, 2016
    On certification to the Superior Court,
    Appellate Division.
    Sara M. Quigley, Deputy Attorney General,
    argued the cause for appellant (John J.
    Hoffman, Acting Attorney General of New
    Jersey, attorney).
    Jacqueline E. Turner, Assistant Deputy
    Public Defender, argued the cause for
    respondent (Joseph E. Krakora, Public
    Defender, attorney).
    JUSTICE PATTERSON delivered the opinion of the Court.
    This appeal raises questions about the competency of a
    child witness and the process that a trial court should apply to
    address that issue.    Under the New Jersey Rules of Evidence, a
    witness is considered competent to testify unless the court
    makes a finding that he or she lacks the capacity to express his
    1
    or her testimony so as to be understood, or is incapable of
    understanding the duty to testify truthfully.    N.J.R.E. 601.     In
    accordance with that standard, a preliminary inquiry is
    undertaken to determine whether a child is competent to testify
    at a criminal trial.   See State v. G.C., 
    188 N.J. 118
    , 131
    (2006).
    In this appeal, defendant’s conviction rested in part on
    the testimony of the alleged victim of sexual assault, who was
    seven years old at the time of trial.    Pursuant to N.J.R.E. 601,
    the trial court held a competency hearing and found the child
    witness was competent to testify.    The Appellate Division
    reversed defendant’s conviction.
    We agree with the trial court’s determination.     We reject
    the State’s argument that defendant waived his right to appeal
    the competency finding when he failed to object to that finding
    at trial, and accordingly review the trial court’s determination
    for plain error.   We also do not construe the relevant Rules of
    Evidence or our case law to require that the court must conduct
    all questioning of a child witness, or to preclude the use of
    leading questions in a competency hearing.    Although the trial
    court and the prosecutor should have conducted a more detailed
    inquiry as to M.C.’s understanding of her duty to tell the truth
    on the witness stand, the court’s determination that she was
    competent was not an abuse of discretion.
    2
    Accordingly, we reverse the judgment of the Appellate
    Division, and remand to the panel for consideration of the
    issues that it did not reach in defendant’s appeal.
    I.
    The alleged acts that gave rise to this case occurred in
    2009, when M.C. was five years old.   The child’s occasional
    babysitter was M.L.G., M.C.’s father’s cousin.   M.L.G. was
    defendant’s girlfriend and shared a home with him.
    According to M.C.’s mother, M.C. reported that defendant
    had sexually abused her on two occasions.   The first incident
    alleged by M.C. occurred on an unspecified date when the
    babysitter, M.L.G., chipped a tooth and went into the bathroom
    to attend to her tooth, leaving M.C. with defendant.   M.C.
    claimed that she was sexually abused by defendant on a second
    occasion, on the morning of March 29, 2009, hours before a
    surprise birthday party held for M.L.G. at the child’s home.
    The child’s mother notified M.L.G. about M.C.’s
    allegations.   Defendant contacted M.C.’s mother to deny that he
    sexually abused M.C.   The matter was referred to the Division of
    Youth and Family Services (now the Division of Child Protection
    and Permanency).   The Division contacted the county prosecutor’s
    office.   In an interview with a detective from the prosecutor’s
    office, M.C. reiterated the allegations that had been reported
    by her mother.
    3
    Defendant was charged with two counts of first-degree
    aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); two counts of
    second-degree sexual assault, N.J.S.A. 2C:14-2(b); and two
    counts of third-degree endangering the welfare of a child,
    N.J.S.A. 2C:24-4(a).    Three of the counts related to the
    incident alleged to have occurred on day the babysitter, M.L.G.,
    chipped her tooth.     The remaining three arose from the alleged
    incident on the day of the babysitter’s birthday party.      Prior
    to trial, the trial court denied defendant’s motion to dismiss
    the indictment and also denied his motion to suppress M.C.’s
    statement to her mother and the videotape of the detective’s
    interview of the child.
    At trial, following the testimony of M.C.’s mother, the
    State called M.C. to the stand for a competency examination.
    The State initially questioned M.C. about whether it would be a
    lie for her to tell her teacher that she had done her homework,
    when she had not:
    [Prosecutor]: Now, if you forgot to do your
    spelling homework -– you didn’t do your spelling
    homework –- and you told your teacher you did the
    spelling homework, would that be a lie?
    [M.C.]:     Yes.
    [Prosecutor]:   And what would your teacher do if
    you told her you did your spelling homework --
    [M.C.]:     He’s going to --
    4
    [Prosecutor]:     -- but you didn’t do your spelling
    homework?
    [M.C.]:   He’s going to put me an X in the homework.
    [Prosecutor]:    She’s going to do what?
    [M.C.]:   Put me an X.
    [Prosecutor]:    She’s going to make you do the next
    homework?
    [M.C.]:   No.    She -- he’s going to put an X.
    [Prosecutor]:   Oh. Put an X?  So, he -- your
    teacher’s a man? Yes? You just have to say out
    loud --
    [M.C.]:   Yes.
    [Prosecutor]:   -- yes or no.      So, your teacher,
    who’s a male, would put an X?
    [M.C.]:   Yes.
    [Prosecutor]:    Is the X good or bad?
    [M.C.]:   Bad.
    [Prosecutor]:     What happens if you get a lot of
    X’s?
    [M.C.]:    You probably not play with that -- be
    alone.
    [Prosecutor]:    You’d be alone?
    The State then introduced the subject of telling the truth
    in court in its examination of the child:
    [Prosecutor]:   Everything you do today in court,
    you have to tell the truth. Do you understand that?
    [M.C.]:   Yes.
    [Prosecutor]:    So, is it good to tell the truth?
    5
    [M.C.]:   Yes.
    [Prosecutor]:     And is it bad to tell a lie?
    [M.C.]:   Yes.
    [Prosecutor]:   And do you understand bad things
    happen if you tell a lie in court.       Do you
    understand that?
    [M.C.]:   Uh-un.    No.
    [Prosecutor]:   Do you understand that bad things
    happen if you tell a lie in school?
    [M.C.]:   Yes.
    [Prosecutor]: So, just like if you tell a lie in
    school, if you tell a lie here in this place, the
    court, bad things happen. Do you understand that?
    [M.C.]:   Yes.
    [Prosecutor]: Okay. So, everything you talk about
    today has to be the truth. Do you understand that?
    [M.C.]:   Uh-huh.
    The trial judge then offered defense counsel the
    opportunity to ask questions.      Defense counsel responded,
    “[n]o objection, Judge.”    The judge then briefly questioned
    the child:
    [The Court]:  All right. Let me just ask you a
    question. See that book there?
    [M.C.]:   Uh-huh.
    [The Court]: If I told you that that book is round,
    would that be a truth or a lie?
    [M.C.]:   A lie.
    6
    [The Court]:    Why?
    [M.C.]:    Because it’s a rectangle.
    [The Court]: Because it’s a rectangle. Okay. So,
    you know the difference between telling what is and
    what isn’t, right? What really is and what really
    isn’t? Truth or a lie, right? Okay. Thanks. You
    can proceed.
    Having determined that M.C. was competent, the trial court
    permitted her to testify.   M.C. told the jury about the alleged
    abuse by defendant, which she said occurred “a lot” and “more
    than four times,” at the home shared by defendant and M.L.G.,
    when M.L.G. was babysitting for her.    M.C. reiterated her
    earlier account of alleged abuse on the day that M.L.G. had
    chipped a tooth, but did not repeat her prior statement that
    defendant had abused her at her own home on the day of M.L.G.’s
    birthday party.   When cross-examined by defense counsel, M.C.
    gave a more detailed account of the alleged sexual abuse on the
    day that her babysitter chipped a tooth, but stated that on the
    date of the birthday party, defendant “didn’t do it.”
    The State called additional fact witnesses and an expert
    witness on pediatric sexual abuse.     Defendant testified on his
    own behalf.   He denied all allegations of sexual abuse and
    testified that he was never alone with M.C. at the time of
    either of the incidents reported by the child.    Defendant
    testified that on the day of M.L.G.’s birthday party, identified
    by M.C. as the date on which he sexually abused the child for
    7
    the second time, he was at an auto repair shop waiting for his
    employer’s vehicle to be repaired.    Defendant supported his
    alibi defense with the testimony of employees at the auto repair
    shop, who corroborated his testimony that he spent that morning
    waiting for his employer’s vehicle to be repaired.    M.L.G.
    testified that on the date that she chipped her tooth, she only
    briefly went to the bathroom to check her tooth, and that
    defendant was not left alone with M.C.    M.L.G.’s mother also
    testified, corroborating some of defendant’s testimony and that
    of M.L.G.
    The jury convicted defendant of three charges, one count of
    first-degree aggravated sexual assault, one count of second-
    degree sexual assault, and one count of third-degree endangering
    the welfare of a child, all relating to the alleged incident on
    the day that M.C.’s babysitter chipped a tooth.   The jury
    acquitted defendant on the three remaining charges, all of which
    involved allegations of abuse on the date of the birthday party,
    for which defendant presented an alibi.    The trial court denied
    defendant’s motion for a new trial.
    After merger of the second-degree sexual assault offense
    into the first-degree aggravated sexual assault offense, the
    court sentenced defendant to a fifteen-year term of
    incarceration subject to the No Early Release Act (NERA),
    N.J.S.A. 2C:43-7.2, with parole supervision for life pursuant to
    8
    Megan’s Law, N.J.S.A. 2C:43-6.4, as well as fines and fees.         The
    court also imposed a concurrent four-year term of incarceration
    for defendant’s conviction for third-degree endangering the
    welfare of a child.
    Defendant appealed his conviction and sentence.       For the
    first time on appeal, defendant argued that the trial court
    erred when it ruled that M.C. was competent to testify.
    In an unpublished opinion, an Appellate Division panel
    reversed defendant’s conviction.       Relying primarily on State v.
    Zamorsky, 
    159 N.J. Super. 273
    , 280 (App. Div. 1978), certif.
    granted, 
    79 N.J. 485
    , on remand, 
    170 N.J. Super. 198
    , 199-200
    (App. Div. 1979), certif. denied, 
    82 N.J. 287
    , cert. denied, 
    449 U.S. 861
    , 
    101 S. Ct. 172
    , 
    66 L. Ed. 2d 78
    (1980), the panel held
    that the trial court’s competency determination constituted
    plain error.   It concluded that the trial judge was required to
    question M.C. personally and directly to ascertain her
    comprehension of a witness’s duty to tell the truth and her
    conceptual awareness of truth and falsehood and that the judge
    improperly delegated that responsibility to the prosecutor.         The
    panel also criticized the prosecutor’s reliance on leading
    questions.   It held that the record before the trial court did
    not support the trial court’s determination that M.C. was
    competent, and that the trial court committed plain error.
    9
    We granted the State’s petition for certification.       
    220 N.J. 40
    (2014).
    II.
    The State urges the Court to reverse the Appellate
    Division’s judgment.    It asserts that defendant waived his right
    to contest the trial court’s competency finding on appeal by
    declining to object to that determination at trial.    The State
    argues that the Appellate Division improperly focused on
    technical considerations, such as the prosecutor’s role in the
    questioning of M.C. and her use of leading questions.     It notes
    that leading questions are commonly used during the examination
    of child witnesses and contends that the panel incorrectly
    stated that the trial court was constrained to conduct the
    examination.   Relying on State v. R.R., 
    79 N.J. 97
    , 114 (1979),
    the State contends that the trial court properly exercised its
    discretion in permitting M.C. to testify.    It asserts that by
    virtue of her responses to questions posed by the trial court
    and the prosecutor, M.C. demonstrated that she appreciated the
    distinction between truth and falsehood, understood the
    importance of truth telling and anticipated negative
    consequences if she were to tell a lie on the witness stand.
    Defendant urges the Court to affirm the judgment of the
    Appellate Division.    He contends that plain error is the
    applicable standard of review and disputes the State’s assertion
    10
    that he waived his right to contest the competency determination
    on appeal by failing to object at trial.    Defendant argues that
    the trial court committed plain error in this case.     He asserts
    that the Appellate Division correctly concluded that the trial
    court improperly failed to conduct a thorough examination of
    M.C. before permitting her to testify.     Defendant argues that
    the proper inquiry is whether the trial court based its
    determination of competency on a showing that M.C. understood
    her moral responsibility to tell the truth and that there was no
    such showing in this case.
    III.
    A.
    Because defendant did not object to the trial court’s
    ruling that M.C. was competent to testify, Rule 2:10-2
    prescribes the applicable standard of review.     That rule
    provides that “[a]ny error or omission shall be disregarded by
    the appellate court unless it is of such a nature as to have
    been clearly capable of producing an unjust result” and that a
    reviewing court “may, in the interests of justice, notice plain
    error not brought to the attention of the trial or appellate
    court.”   R. 2:10-2; see also Pressler & Verniero, Current N.J.
    Court Rules, comment 2.1 on R. 2:10-2 (2016) (noting plain error
    is “error not properly preserved for appeal but of a magnitude
    dictating appellate consideration”); State v. McKinney, 
    223 N.J. 11
    475, 494 (2015) (applying plain error standard to failure to
    object to jury instructions); State v. R.K., 
    220 N.J. 444
    , 456
    (2015) (applying Rule 2:10-2 plain error standard to limiting
    instruction in absence of objection); State v. Ross, 
    218 N.J. 130
    , 142-43 (2014) (applying plain error to failure to object to
    juror substitution); State v. Stas, 
    212 N.J. 37
    , 58 (2012)
    (applying plain error standard to trial court’s reliance on
    defendant’s silence in conviction).
    We do not concur with the State’s position that by failing
    to object to a competency determination, a defendant waives his
    or her right to challenge that determination on appeal.1    Nothing
    in Rule 2:10-2 or our case law suggests that a trial court’s
    ruling on the competency of a witness warrants an exception to
    the plain error standard of review.   Moreover, that high
    standard provides a strong incentive for counsel to interpose a
    1  In support of its argument, the State does not rely on New
    Jersey case law, but on federal authority and case law from
    several states. See Benson v. United States, 
    146 U.S. 325
    , 332,
    
    13 S. Ct. 60
    , 62, 
    36 L. Ed. 991
    , 995 (1892) (observing defendant
    waived objection to testimony “by not objecting to her testimony
    at the time it was offered”); United States v. Odom, 
    736 F.2d 104
    , 112 (4th Cir. 1984) (holding absent objection, “any claim
    of incompetency of the witness is waived”); Rhymes v. State, 
    356 So. 2d 1165
    , 1169 (Miss. 1978) (noting cross-examination of
    witness waived right to challenge competency of witness); Bowman
    v. State, 
    598 S.W.2d 809
    , 811 (Tenn. Crim. App. 1980) (noting
    “defendant waived any objection he might have had to the
    competency of . . . a witness [when] [n]o objection was made”).
    We decline to adopt the principles stated in those cases.
    12
    timely objection, enabling the trial court to forestall or
    correct a potential error.   See State v. Johnson, 
    31 N.J. 489
    ,
    511 (1960) (“A timely objection gives the trial court and the
    prosecutor an opportunity to counteract the effect of any
    unseemly remark.”); State v. Douglas, 
    204 N.J. Super. 265
    , 274
    (App. Div. 1985) (noting timely objections allow for curative
    instructions), certif. denied, 
    102 N.J. 378
    (1985); see also
    State v. Wilson, 
    57 N.J. 39
    , 51 (1970) (observing “a timely
    objection [also] signifies that the defense believes itself to
    have been prejudiced by the prosecutor’s remarks”).   We discern
    no reason to deviate from that standard in this case.
    Accordingly, we review the trial court’s competency
    determination for plain error.
    B.
    “[O]ur ‘system of justice . . . has established as a
    general rule that all persons should be qualified to testify,
    and that disqualification should be the exception[.]’”    
    G.C., supra
    , 188 N.J. at 133 (alteration in original) (quoting Germann
    v. Matriss, 
    55 N.J. 193
    , 217 (1970)).   That governing principle
    is reflected in N.J.R.E. 601, which provides:
    Every person is competent to be a witness
    unless (a) the judge finds that the proposed
    witness is incapable of expression concerning
    the matter so as to be understood by the judge
    and   jury   either    directly   or   through
    interpretation, or (b) the proposed witness is
    incapable of understanding the duty of a
    13
    witness to tell the truth, or (c) except as
    otherwise provided by these rules or by law.
    Accordingly, any claim of witness disqualification must be
    strictly construed against exclusion and in favor of admitting
    any relevant testimony the witness may offer.    See 
    G.C., supra
    ,
    188 N.J. at 132.
    Typically, when the witness is an adult, competency hinges
    in part on the witness’s capacity “to understand the nature and
    obligations of an oath[.]”   
    Id. at 131
    (quoting State v. Butler,
    
    27 N.J. 560
    , 602 (1958)).    N.J.R.E. 603 requires that a witness
    “take an oath or make an affirmation or declaration to tell the
    truth under the penalty provided by law.”   A witness may not be
    barred from testimony “because of religious belief or lack of
    such belief.”   
    Ibid. Thus, the mandated
    oath need not be an
    expression of religious belief; instead, it serves “as a vehicle
    to remind the witness that he has a special obligation to speak
    the truth in court.”    
    R.R., supra
    , 79 N.J. at 110.
    That objective is complicated in the case of a child
    witness, who “may be incapable of understanding either the
    concept of divine punishment or the legal implications of false
    swearing.”   
    Ibid. Consequently, “[a]ny ceremony
    which obtains
    from an infant a commitment to comply with” the obligation to
    testify truthfully, “on pain of future punishment of any
    kind[,]” satisfies the requirement of an oath.    
    Id. at 111.
       In
    14
    a prosecution for a sexual offense in which the alleged victim
    is a child, who may be the sole witness to the offense,
    [w]e accept something different in the way of
    an oath from child victim witnesses for two
    reasons. First, “any holding to the contrary
    would   virtually   preclude   children  from
    testifying against their assailants.” Second,
    we are confident that “allowing departures
    from the traditional oath will not result in
    convictions based upon the word of infants
    incapable of understanding the difference
    between right and wrong.”
    [
    G.C., supra
    , 188 N.J. at 131 (quoting 
    R.R., supra
    , 79 N.J. at 111).]
    N.J.R.E. 601 does not prescribe the procedure by which
    trial courts develop a record to determine competency.     In the
    majority of reported decisions in which appellate courts
    affirmed competency determinations, the judge personally
    conducted the questioning of the child.   See, e.g., 
    G.C., supra
    ,
    188 N.J. at 126 (noting court questioned child witness); State
    v. Krivacska, 
    341 N.J. Super. 1
    , 32 (App. Div.) (stating trial
    judge questioned alleged victims, who were children residing in
    facility for special-needs students), certif. denied and appeal
    dismissed, 
    170 N.J. 206
    (2001), cert. denied., 
    535 U.S. 1012
    ,
    
    122 S. Ct. 1594
    , 
    152 L. Ed. 2d 510
    (2002); State v. Walker, 
    325 N.J. Super. 35
    , 41 (App. Div. 1999) (observing trial judge
    “relied on his observations of [the child] at the voir dire
    during pretrial motions and upon the report prepared by [the
    child]’s treating psychiatrist” to make competency
    15
    determination), certif. denied, 
    163 N.J. 74
    (2000); 
    Zamorsky, supra
    , 159 N.J. Super. at 280 (acknowledging trial court
    conducted questioning of child in one of two proceedings).
    Direct questioning by the trial judge, with immediate follow-up
    on an evasive or inconclusive response, may be the most
    effective method to probe the child’s understanding of the
    importance of telling the truth in the formal setting of a
    courtroom.
    This Court, however, has never held that the questioning of
    the witness is the exclusive province of the trial judge.2   Our
    case law recognizes that a prosecutor’s examination of a child
    witness may be appropriate in a given case.   In 
    R.R., supra
    , the
    child witness was questioned in turn by the trial judge, court
    clerk, prosecutor, and defense 
    counsel. 79 N.J. at 104
    .3
    Similarly, in State v. T.E., 
    342 N.J. Super. 14
    , 27 (App. Div.),
    2  To the extent that the first Appellate Division panel in
    
    Zamorsky, supra
    , 159 N.J. Super. at 280-82, intended to state a
    rule barring counsel from questioning a witness when it
    commented that a judge must be satisfied from “his
    interrogation” that the child understands the duty to tell the
    truth, we do not endorse such a requirement.
    3  The Court’s statement in 
    R.R., supra
    , that when a party
    challenges a witness’s competency to testify, the trial court
    should “conduct a preliminary inquiry,” does not mandate that
    questioning be conducted by the trial judge. 
    See 79 N.J. at 113
    (citing Evid. R. 8). As is confirmed by the citation to Evid.
    R. 8, the predecessor rule to N.J.R.E. 104, the Court’s comment
    is a reference to the judge’s responsibility to determine the
    preliminary question of competency, not to the procedure for
    examining the witness. 
    Ibid. 16 certif. denied,
    170 N.J. 86 
    (2001), the Appellate Division
    acknowledged that the “preferred procedure” is for a court
    officer to “administer a ‘traditional’ oath and for the judge to
    engage in colloquy constituting its functional equivalent with a
    youthful witness.”   However, the T.E. panel rejected the
    defendant’s argument that, by conducting the competency
    examination of a child victim, the prosecutor usurped the
    court’s function.    
    Ibid. A child may
    be more candid and
    forthcoming in response to questions posed by an attorney with
    whom he or she has a rapport.    It is the trial court’s charge to
    make certain that any questioning by counsel is conducted
    fairly, and to supplement counsel’s questions as necessary to
    ensure the integrity of the proceeding.
    Subject to the trial court’s careful oversight, leading
    questions may be used in the examination of a child witness.
    N.J.R.E. 611(c) provides:
    Leading questions should not be used on the
    direct examination of a witness except as may
    be   necessary    to  develop  the   witness’
    testimony.     Ordinarily, leading questions
    should be permitted on cross-examination.
    When a party calls an adverse party or a
    witness identified with an adverse party, or
    when a witness demonstrates hostility or
    unresponsiveness, interrogation may be by
    leading questions, subject to the discretion
    of the court.
    The purpose of N.J.R.E. 611(c) is to “encourage testimony
    from the witnesses, rather than evidence resulting from the
    17
    prompting of counsel.”   Biunno, Weissbard & Zegas, Current N.J.
    Rules of Evidence, comment 8 on N.J.R.E. 611(c) (2015).      Trial
    judges are vested with broad discretion over the mode of
    interrogation to “make the interrogation . . . effective for
    ascertainment of the truth, and . . . protect witnesses from
    harassment or undue embarrassment.”      
    T.E., supra
    , 342 N.J.
    Super. at 29-30 (quoting N.J.R.E. 611(a)).
    Moreover, leading questions are frequently permitted in the
    examination of child witnesses.     See Biunno, Weissbard & Zegas
    supra, comment 8 on N.J.R.E. 611(c) (noting questioning of
    youthful witnesses is “[a] prime example” of when leading
    questions are necessary); State v. Smith, 
    158 N.J. 376
    , 390
    (1999) (“[T]he use of leading questions to facilitate an
    examination of child witnesses who are hesitant, evasive or
    reluctant is not improper.”); 
    T.E., supra
    , 342 N.J. Super. at 30
    (recognizing protecting children from “undue trauma” is weighty
    public policy goal warranting use of leading questions); State
    in Interest of B.G., 
    289 N.J. Super. 361
    , 370 (App. Div.)
    (granting counsel “substantial leeway” to ask leading questions
    of child witnesses), certif. denied, 
    145 N.J. 374
    (1996)).
    Accordingly, “[i]t is well-settled that a court may in its
    discretion allow counsel to use leading questions in order to
    elicit testimony from an infant.”      
    R.R., supra
    , 79 N.J. at 114-
    15.
    18
    With substantial discretion regarding the form of
    questioning, the trial court’s task is to determine whether the
    child witness appreciates the distinction between truth and
    lies, and comprehends his or her duty to tell the truth.        The
    showing necessary for a competency determination is illustrated
    by this Court’s prior applications of N.J.R.E. 601 in child
    sexual abuse cases.     In R.R., the Court reviewed the trial
    court’s finding that the alleged victim, a four-year-old boy,
    was competent to testify in the defendant’s trial.     
    Id. at 103-
    06.   After the trial court rejected the defendant’s argument
    that the child was incompetent by virtue of his age, the court
    clerk conducted the following inquiry:
    The Clerk:     Will you tell the truth to this
    Court?
    The Witness:     Yes.
    The Clerk:     Do you believe in God?
    The Witness:     Yes.
    The Clerk: If you lie do you believe that God
    will punish you?
    The Witness:     No.
    The Clerk:      God will not punish you if you
    tell a lie?     Or will he punish you?
    The Witness:     He will.
    The Clerk:    He will.   The boy is sworn, Judge.
    [Id. at 104.]
    19
    In response to a challenge by the defendant to the court’s
    initial finding of competency in R.R., the trial court and
    counsel further examined the child.    
    Ibid. That inquiry established
    that the child always obeyed his teacher, that his
    teacher would scold him if he did things “wrong,” that he never
    did things “wrong” at home, that truthfulness denotes being
    “good,” and that if he told a lie, he would be “bad” and get a
    “beating.”   
    Ibid. The child assured
    the court that he would not
    be “bad” while answering questions in court, promised to report
    the facts “the way it [was].”    
    Ibid. (alteration in original).
    The defendant was convicted and appealed.      The Appellate
    Division upheld the trial court’s competency determination, but
    ruled the child’s testimony inadmissible because the court had
    not administered a traditional oath.    
    Id. at 107.
    This Court reversed the Appellate Division’s judgment.     
    Id. at 121.
      It noted that a trial court must determine “whether the
    child possesses ‘moral responsibility’ –- that is, a
    consciousness of the duty to tell the truth.”      
    Id. at 113.
      It
    observed that “[s]o long as the child understands (a) the
    difference between right and wrong; (b) that to tell the truth
    is ‘right’; and (c) that he will be punished in some way should
    he lie to the court, this requirement is satisfied.”       
    Id. at 114.
       The Court concurred with the trial judge’s conclusion that
    20
    the child witness understood his duty to speak the truth on the
    witness stand.   Ibid.4
    The same standard was applied in 
    G.C., supra
    , 188 N.J. at
    132-33.   In G.C., the State presented the testimony of the
    defendant’s five-year-old daughter, the victim of his alleged
    sexual abuse.    
    Id. at 121,
    125-27.   In response to a defense
    objection to the child’s competency to testify, the trial court
    agreed to “mak[e] certain that this witness can understand the
    difference between the truth and a lie.”    
    Id. at 125.
    Questioned by the trial judge outside the presence of the jury,
    the child stated that it was “[n]ot good” to tell a lie and that
    it is “good to tell the truth.”    
    Id. at 125-26.
      Defense counsel
    asked for a more specific inquiry about the witness’s
    understanding of the consequences of lying, and the trial judge
    continued:
    4  On the same day that it decided R.R., the Court granted the
    State’s petition for certification in Zamorsky and remanded for
    reconsideration in light of R.R.. See State v. Zamorsky, 
    79 N.J. 485
    (1979). The Appellate Division in 
    Zamorsky, supra
    , in
    reversing defendant’s conviction on one of two charges of
    impairing the morals of a minor, applied a two-step inquiry for
    determining whether a child witness was competent to testify:
    first, an exploration of the child’s understanding of the
    concepts of truth and falsehood, and second, a discussion of his
    or her understanding of the duty to tell the truth. 
    See 159 N.J. Super. at 280
    . On remand, the Appellate Division vacated
    its reversal of the defendant’s conviction after finding that
    the trial court’s colloquy with the child demonstrated “a
    sufficient commitment by the child to tell the truth on pain of
    some kind of punishment.” 
    Zamorsky, supra
    , 170 N.J. Super. at
    202.
    21
    The Court: Now, before when you came in and
    we talked a little bit, I asked you if it was
    good to tell the truth. Do you remember that?
    [The Witness]:   (Nods.)
    The Court: And I asked you about telling a
    lie. Do you remember that?
    [The Witness]:   (Nods.)
    . . . .
    The Court: When you talk to [the jury], are
    you going to tell the truth or are you going
    to tell a lie?
    [The Witness]: I’m not going to tell the lie.
    I will tell the truth.
    The Court:   Okay.   That’s what we want you to
    do. Okay?
    [The Witness]:   (Nods.)
    The Court:   Are you going to tell the truth?
    [The Witness]:   (Nods.)
    [Id. at 126.]
    The trial court overruled the defendant’s objection to the
    child’s competence to testify.   
    Ibid. The Appellate Division
    reversed the trial court’s determination, holding that the
    court’s inquiry was insufficient to ascertain the child’s
    understanding of the duty to tell the truth and the consequences
    of false testimony.   
    Id. at 128-29.
    Reversing the Appellate Division’s judgment, this Court
    held that the trial court’s competency inquiry properly focused
    22
    on whether the child understood her duty to tell the truth, a
    duty that “necessarily implicates the consequences arising as a
    result of a failure to comply with the duty.”    
    Id. at 133.
    Accordingly, the Court upheld the trial court’s determination
    that the child was competent to be a witness.    
    Ibid. Justice Wallace wrote
    a concurring opinion, agreeing with the majority
    that the witness’s competence was established, but finding the
    court’s questions “minimally sufficient” to establish the girl’s
    understanding of the duty to tell the truth.     
    Id. at 135
    (Wallace, J., concurring).
    The questioning of the children in R.R. and G.C. was not
    optimal; in each case, the trial court could have conducted a
    more thorough and enlightening examination of the witness.
    Neither examination erased all uncertainty about the child’s
    comprehension of these concepts.    The child witness in 
    R.R., supra
    , initially stated that he did not fear divine punishment
    if he were to lie, and then corrected 
    himself. 79 N.J. at 104
    .
    The child witness in 
    G.C., supra
    , offered minimal -– at times
    nonverbal -– responses to some of the 
    questions. 188 N.J. at 125-27
    .
    Nonetheless, both decisions illustrate the basic elements
    of an adequate competency determination.    In each inquiry, the
    testimony established that the child understood the distinction
    between telling the truth and lying, that he or she understood
    23
    that it was important to tell the truth in court, and that he or
    she anticipated negative consequences in the event of a lie.
    
    G.C., supra
    , 188 N.J. at 125-28, 133; 
    R.R., supra
    , 79 N.J. at
    104, 113-14.   Because our evidence rules presume the competency
    of a witness, see 
    G.C., supra
    , 188 N.J. at 132, this Court
    determined in both cases that the trial court properly permitted
    the child witnesses to testify, 
    id. at 133;
    R.R., supra
    , 79 N.J.
    at 113-14.
    C.
    Guided by N.J.R.E. 601 and our case law, we conduct a
    plain-error review of the trial court’s determination that M.C.
    was competent to testify at defendant’s trial.     R. 2:10-2.
    The trial court’s decision was based upon a three-part
    inquiry.   During the preliminary phase of the examination, the
    prosecutor introduced the concept of telling a lie in the
    context of M.C.’s obligation to do her homework.    She asked both
    leading and non-leading questions in a non-confrontational
    manner.    In the second phase, conducted by the prosecutor posing
    leading questions, the inquiry became more pointed.    The
    prosecutor inquired about the consequences of lying, and
    analogized the duty to tell the truth at school to the duty to
    testify truthfully in court.   Finally, the trial judge
    questioned the witness, challenging her to declare whether the
    24
    judge’s own hypothetical misstatement of fact –- that a
    rectangular book was round -– constituted the truth or a lie.
    We do not concur with the Appellate Division’s conclusion
    that the trial court’s competency determination was procedurally
    flawed because the trial court permitted the prosecutor to
    question M.C.   Although a judge will often be in the best
    position to elicit candid answers from a child witness, it is
    within a trial court’s broad discretion to permit questioning by
    the prosecutor, particularly in the initial phase of the inquiry
    as the witness becomes comfortable in the intimidating setting
    of a courtroom.   
    T.E., supra
    , 342 N.J. Super. at 26.    The record
    of this case suggests an unrehearsed inquiry; until she was
    corrected by M.C., who testified that her teacher was male, the
    prosecutor mistakenly assumed that the teacher was a woman.
    Significantly, the final phase of the questioning was conducted
    by the judge.   We find no abuse of discretion in the
    prosecutor’s conduct of most of the questioning.
    Moreover, we do not share the Appellate Division’s view
    that the inquiry was improper because the prosecutor asked
    leading questions.   When the witness is a child, the essential
    concepts of truth, falsehood, and punishment may be difficult to
    reach with open-ended questions.     See Biunno, Weissbard & Zegas
    supra, comment 8 on N.J.R.E. 611(c); 
    Smith, supra
    , 158 N.J. at
    390; 
    T.E., supra
    , 342 N.J. Super. at 30; 
    B.G., supra
    , 
    289 N.J. 25
    Super. at 370-71.    Subject to the discretion of the trial judge,
    who must carefully monitor the examination to ensure that the
    child’s answers are his or her own, leading questions may be
    used in a competency inquiry.    We find no plain error in the
    procedure used by the trial court in this case.
    In light of N.J.R.E. 601’s preference for the admission of
    relevant evidence, and the plain error standard that governs
    this case, we find that the inquiry conducted before the trial
    court was minimally sufficient to support the trial court’s
    finding under the standard prescribed in 
    R.R., supra
    , 79 N.J. at
    114.    M.C.’s testimony reflected an understanding of “the
    difference between right and wrong,” as well as the concept that
    “to tell the truth is ‘right.’”    See 
    ibid. The child identified,
    as examples of lies, two hypothetical statements
    posed to her:   a statement to her teacher that she had done her
    spelling homework, when she had not, and the trial judge’s
    suggestion that a book was round, when it was rectangular.     The
    latter example is the more compelling of the two, because M.C.
    demonstrated that she was willing to confront an authority
    figure in the event that he made a false statement.    M.C.
    further testified, albeit in response to leading questions, that
    it was “good” to tell the truth, and “bad” to tell a lie.     She
    26
    confirmed that she understood that in court she had to tell the
    truth.5
    Less conclusive, but nonetheless sufficient, was M.C.’s
    testimony about her fear of punishment in the event that she
    told a lie.    See 
    G.C., supra
    , 188 N.J. at 133; 
    R.R., supra
    , 79
    N.J. at 114.    The prosecutor initially raised the topic of
    punishment with non-leading questions about the anticipated
    reaction of M.C.’s teacher if she falsely claimed to have done
    her homework.     The child’s initial answer -– that the teacher’s
    response would be an “X” on the homework –- was ambiguous; it
    was unclear whether the teacher’s “X” on the homework would be a
    sanction for M.C.’s failure to perform the assignment, or for
    lying about it.    M.C. hesitated when the prosecutor pivoted to a
    leading question about “bad things” that would happen if she
    told a lie in court.    She initially responded that she did not
    understand that such “bad things” would happen, but then
    confirmed that she understood that “bad things” would follow if
    a lie were told in court, as they would occur if a lie were told
    in school.     Ultimately, the examination elicited testimony that
    5  At the conclusion of the examination, the trial court asked
    “[s]o you know the difference between telling what is and what
    isn’t right? What really is and what really isn’t? Truth or a
    lie, right? Okay.” Although M.C. may have nodded, or otherwise
    responded affirmatively, in response to those questions, her
    answers were unrecorded in the transcript, and we do not rely on
    them.
    27
    established M.C.’s understanding that lied in her testimony, she
    would be punished.
    Thus, the competency determination was premised on a record
    adequate to support it.    Accordingly, the trial court’s finding
    that M.C. was competent did not constitute plain error.     R.
    2:10-2.   Moreover, defendant’s counsel had the opportunity to
    thoroughly cross-examine the child, exploring discrepancies
    between her statement to investigators and her testimony at
    trial.    Allowing M.C. to testify, and permitting the jury to
    assess her credibility, did not bring about an unfair trial or
    unjust result.
    Although we find the examination conducted in this case to
    satisfy N.J.R.E. 601, given the plain error standard of review
    that governs this appeal, we note that the inquiry conducted in
    this case was well short of ideal.    A thorough and detailed
    examination of the child might have established a more
    compelling record.    When M.C. offered her unclear comment about
    the consequences of a misstatement about spelling homework –-
    indicating that she may not have understood the import of the
    question -- the prosecutor should have shifted to alternative
    examples of falsehoods that a child might tell in the familiar
    setting of her school.    The trial judge’s brief questioning
    about a hypothetical lie concerning the shape of a book was
    instructive, but the judge’s inquiry would have been more
    28
    effective had it extended beyond a single topic.   Trial courts
    and counsel should develop the record on the question of
    competency by means of thorough and detailed questioning of the
    child witness.6
    In sum, the trial court did not commit plain error when it
    concluded that M.C.’s testimony demonstrated that she was a
    competent witness, under the standard of N.J.R.E. 601.     The
    trial court properly exercised its discretion when it permitted
    M.C. to be a witness at defendant’s trial.
    IV.
    The judgment of the Appellate Division is reversed, and the
    matter is remanded to the Appellate Division for its
    consideration of issues that it did not need to address in its
    review of this appeal.
    CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and
    SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE
    PATTERSON’S opinion. JUSTICE FERNANDEZ-VINA did not
    participate.
    6   We suggest that to assist trial courts and counsel, the
    Criminal Practice Committee consider developing model questions
    for use in competency determinations involving child witnesses.
    29
    SUPREME COURT OF NEW JERSEY
    NO.       A-15                                   SEPTEMBER TERM 2014
    ON CERTIFICATION TO             Appellate Division, Superior Court
    STATE OF NEW JERSEY,
    Plaintiff-Appellant,
    v.
    DAVID BUESO (a/k/a YASMIN
    BUESO, DAVID ABEJAEL BUESO,
    YASMIN A. BUESO, YASMIN
    ABEJAEL BUESO, YASMIN ABIGAIL
    BUESO),
    Defendant-Respondent.
    DECIDED                June 8, 2016
    Chief Justice Rabner                      PRESIDING
    OPINION BY            Justice Patterson
    CONCURRING/DISSENTING OPINIONS BY
    DISSENTING OPINION BY
    REVERSE AND
    CHECKLIST
    REMAND
    CHIEF JUSTICE RABNER                          X
    JUSTICE LaVECCHIA                             X
    JUSTICE ALBIN                                 X
    JUSTICE PATTERSON                             X
    JUSTICE FERNANDEZ-VINA                ------------------
    JUSTICE SOLOMON                               X
    JUDGE CUFF (t/a)                              X
    TOTALS                                        6