KOEPPEL v. BASSETT et al

Filing 171

OPINION AND ORDER; that the plaintiff's motion in limine is DENIED and Grace LaBruno is found competent to testify. Signed by Judge Kevin McNulty on 2/27/2015. (ld, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

DONNA KOEPPEL, individually, and
as parent of Grace LaBruno, a
minor,

Civ. No. 08-cv-04543 (KM)

OPINION & ORDER
Plaintiffs,
V.

ANDREW BASSETT, individually
and in his capacity as an Officer of
the Township of Nutley Police
Department, ERIC STABINSKI,
individually and in his capacity as
an Officer of the Township of Nutley
Police Department, and TOWNSHIP
OF NUTLEY,
Defendants.

KEVIN MCNULTY, U.S.D.J.:
Defendants have requested that the Court conduct a pretrial voir dire
examination pursuant to Federal Rule of Evidence 104 to determine the
competency of Grace LaBruno as a witness. See FED. R. EvID. 104(a), (c). Miss
LaBruno, now eleven, is the daughter of plaintiff Donna Koeppel; she was three
years old at the time of the arrest that gave rise to this case. The defendants
have expressed a concern that Grace LaBrurio’s memory may not be reliable, or
that it may have been influenced by conversations with her mother over the
years. Defendants have not, however, offered psychological or other expert
testimony as to the capacity of this child witness. At oral argument, defense
counsel made it clear that the relief they currently seek is limited: only that the
court convene an informal hearing in chambers at which the court would ask
Miss LaBruno a handful of questions, preferably questions agreed on by the
1

parties. Koeppel replies that defendants should have elicited evidence regarding
competency during Miss LaBruno’s deposition, and that all other matters may
be handled in cross-examination.
I granted the limited relief requested by the defendants. I received from
the parties an agreed-upon list of voir dire questions. On February 20, 2015, I
met with Grace LaBruno, her mother, and all counsel. The session was
conducted in chambers, but on the record. At the session, all sat at a
conference table. I addressed the agreed-upon questions directly to Grace
LaBruno, who was seated next to me, and followed up to a limited extent as
necessary to develop her answers. The agreed-upon questions were these:
1. What is your name?
2. How old are you?
3. When is your birthday?
4. Do you have any brothers or sisters?
5. What are their names?
6. Howold are they?
7. Do you have any trouble seeing? Glasses? Have you ever?
8. Do you have any trouble hearing? Have you ever?
9. Do you go to school?
10. What school do you go to?
11. What grade are you in?
12. Who is your teacher?
13. Where do you live?
14. How long have you lived there?
15. Do you know the difference between right or wrong? Explain?
16. Do you know what a lie is? What is a lie?
17. Do you promise to tell the truth about happened in this case?
18. Do you remember the events of January 3, 2007, when the police
came to your house?
19. Do you remember where you lived in January 2007?
20. How old were you?
21. Where you at school that day?
22. What happened that day?
23. Since that day, what has your mom told you about that day?
24. Where were you when you saw these events?
25. How could see them?
26. How could you hear what they were saying?
Federal Rule of Evidence (“FRE”) 601 states: “Every person is competent
to be a witness unless these rules provide otherwise. But in a civil case, state
2

law governs the witness’s competency regarding a claim or defense for which
state law supplies the rule of decision.” In this case, Koeppel asserts claims for
false arrest and excessive force under 42 U.S.C.

§ 1983, as well as state

common law tort claims for false arrest, assault and battery, intentional
infliction of emotional distress, negligent infliction of emotional distress, and
negligence. Miss LaBruno’s testimony is expected to provide support for both
the federal and state law claims. (See Final Pre-Trial Order, Dkt. No. 125, at 15)
I will therefore assess her competency under federal law and New Jersey law,
as required by Rule 601. Both analyses strongly favor a finding of competency.
Federal Rule 601 abolishes the categorical disqualification of witnesses
based on age and creates a presumption of competency. See FED. R. EVID. 601.
Despite this presumption, “the issue remains whether the child had at the time
of the events in question sufficient capacity to observe and at the time of trial
has sufficient capacity to recollect, communicate, and understand the
importance of telling the truth.” Wright and Gold, FEDERAL PRACTICE AND
PROCEDuRE: EVIDENCE 2D

§ 6005.3. Accordingly, a party concerned that the

testimony of a child witness has been unduly influenced by another can still
object that the child is unable to testify from personal knowledge. See Fed. R.
EvID.

602. The objecting party, however, must show that the child did not

perceive the events in question or is testifying from suggestion rather than her
own recollection; mere assertion of such concerns is not enough. Without this
showing, the child witness will be presumed competent so long as she is able to
express herself and understand her duty to tell the truth. See United States v.
Thai, 29 F.3d 785 (2d Cir. 1994) (affirming district court’s finding that a six
and one-half year old witness to a robbery was competent to testify at trial
because she exhibited intelligence and “understood the process and knew what
this was about.”)
New Jersey law also favors the admission of a child’s testimony. New
Jersey Rule of Evidence (“NJRE”) 601 states:
Every person is competent to be a witness unless (a) the judge
finds that the proposed witness is incapable of expression
3

concerning the matter so as to be understood by the judge and
jury either directly or through interpretation, or (b) the propos
ed
witness is incapable of understanding the duty of a witness to tell
the truth, or (c) except as otherwise provided by these rules or
by
law.
Like its federal counterpart, the New Jersey rule presumes that every
person is competent to be a witness unless the rules themselves provid
e
otherwise. The standards that govern individual competency
determinations do not change based upon the age of the witness. See,
e.g., State v. Michaels, 136 N.J. 299, 308 (1994) (“Children, as a class,
are not to be viewed as inherently suspect witnesses.”); State v. R.W.,
104
N.J. 14, 19 (1986) (holding that the appellate court erroneously
concluded that a mental examination was necessary based solely on the
age of the three-year-old testifying victim).
In deciding whether a child witness is competent to testify, the
Court must be guided by NJRE 60 l’s three exceptions to the
presumption of competency. The Court must determine that the child is
able to “understand questions and to frame and express intelligent
answers.” State v. Grossmick, 153 N.J. Super. 190, 192, 379 A.2d 454
(App. Div. 1976) The Court must also determine that the child can
distinguish between truth and falsehood and appreciate the duty of
truthfulness. See State v. Zamorsky, 159 N.J. Super. 273 (App. Div.
1978). A possible defect in memory—something that may be of particular
concern in this case—is insufficient to overcome the presumption of
competency. “[M]emory, or lack thereof, bears only upon the weight that
the trier of act should attribute to the testimony.” State v. Davis, 229 N.J.
Super. 66, 77 (App. Div. 1988). And of course the court must consider
whether any other rule or law bars the witness’s testimony, although no
such claim is raised here.
Having posed the agreed-upon questions to Grace LaBruno and heard
her answers, I am satisfied that she is competent to testify at trial. She seems
to be mature and self-possessed beyond her eleven years of age. She
4

articulated a rational and coherent answer to each ques
tion. She appreciates
the difference between truth and falsehood. She know
s that when she answers
questions in Court, she must promise to be truthful.
She conveyed a clear
sense that not telling the truth is bad or wrong. Alth
ough I recognize that
certainty or vividness of recollection does not necessari
ly correlate to accuracy,
I do find it significant that she was deeply affected by
the January 3, 2007
altercation. Miss LaBruno became emotional, but rema
ined in control, when I
asked her to describe what she witnessed that day. She
remembered that her
neighbor took bricks from her yard and that her moth
er called the police. After
the police arrived, she said, she watched through the glass
storm door at the
front of her house as the defendants “beat up” Koeppel.
She was able to see
and hear clearly. She said that, as a result of witnessin
g this alleged assault on
her mother, she has experienced nightmares and has seen
a therapist. She
freely acknowledged that, over the years, she has discu
ssed the altercation
with her therapist and with her mother. It is not impl
ausible that such
discussions could have influenced a child’s memory. The
mere possibility of
suggestion, however, is insufficient to overcome the presumpti
on of
competency. I note also that, although Miss LaBruno is
now eleven, her current
testimony is consistent with deposition testimony she gave
in 2009, when she
was six. As stated above, the defendants have not subm
itted any psychological
or other expert testimony regarding Miss LaBruno’s testimon
ial capacity.
Nevertheless, common experience suggests that the accu
racy of a child’s
memory of events that occurred at the age of three is open
to question. That,
however, is fodder for cross-examination, not a basis for who
lly excluding the
testimony.
The bar for competency is not high under federal or New Jerse
y law.
Based on the foregoing, I find that Grace LaBruno has clear
ed it.

5

ORDER
For the reasons expressed above, and the requested pretr
ial hearing
having been held,
IT IS this 27th day of February, 2015,
ORDERED, that the plaintiff’s motion in limine is DENIED
and Grace
LaBruno is found competent to testify.

K VIN MCNULTY
United States District Judge

6