1

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 
2

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.
1

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 
2

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.
3

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.
4

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 --
5

[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?
6

[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.
7

[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 
8

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 seconddegree 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 
9

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.
10

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 
11

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.
12

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.
13

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 
14

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 
15

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 
16

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.
17

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 
18

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.
19

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.]
20

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 
21

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. 
22

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
23

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 
24

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 
25

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. 
26

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 
27

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. 
28

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 
29

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.
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 

CHECKLIST REVERSE AND 

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