State of New Jersey in the Interest of A.B. (072873) , 219 N.J. 542 ( 2014 )

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 in the Interest of A.B. (A-74-12) (072873)
Argued March 18, 2014 -- Decided September 24, 2014
Albin, J., writing for a unanimous Court.
In this appeal, the Court considers whether the family court abused its discretion by entering a discovery
order allowing the accused, his attorney, and his investigator to inspect and photograph specified areas of the alleged
victim’s home for no more than thirty minutes in the presence of a prosecutor’s investigator.
In September 2011, A.B., then seventeen years old, was charged in a juvenile complaint with offenses that
would constitute first-degree aggravated sexual assault and third-degree endangering the welfare of a child if
committed by an adult. The named victim is A.B.’s six-year-old cousin, N.A. The offenses allegedly occurred
during a three-week period when A.B. was staying with his aunt and uncle. The prosecutor’s investigators
photographed N.A.’s home and cut a piece of rug for forensic testing. Defense counsel requested to inspect the
home to understand the dimensions and relative locations of the rooms where alleged sexual acts occurred and to
take pictures. When the prosecutor objected, A.B. filed a motion to secure an inspection order.
At a hearing on the motion to inspect, defense counsel insisted that he had to visit the scene of the crime to
prepare his case. The prosecutor opposed the motion, stating that the photographs accurately depicted the relevant
areas of the house and arguing that the “victim’s family should not have to vacate their home on the hope . . . that
the visit might reveal something useful to the case.” The family court entered an order allowing defense counsel “to
inspect the victim’s room and [A.B.]’s sleeping area with an investigator and [A.B.] in the company of an
investigator from the Prosecutor’s Office.” The order restricted the inspection to “no more than 30 minutes,”
excluded A.B.’s parents from participating, required that “the victim’s family” agree to the date and time of the visit,
and allowed for the family to “be in another part of the house or outside of the house” during the visit.
The State filed a motion for reconsideration supported by a certification from N.A.’s mother, which stated
that her family would be traumatized if A.B. were allowed in the home. The State asserted that the order violated
the Victim’s Rights Amendment (VRA), the Crime Victim’s Bill of Rights (CVBR), and case law requiring a
heightened and specific showing of relevance to justify invading a victim’s privacy rights. Defense counsel argued
that inspection of the alleged crime scene was fundamental to his preparation and would allow him a spatial
understanding of the home’s layout and an opportunity to take photographs useful to the defense. The court denied
reconsideration, explaining that the order took into account the privacy concerns of the victim’s family and that
defense counsel had the right to inspect “the scene of the crime with [A.B.] . . . so he can better prepare the case.”
The Appellate Division denied the State’s motion for leave to appeal. This Court granted the State’s
interlocutory appeal, summarily remanded to the Appellate Division for consideration on the merits, and stayed the
discovery pending a final decision. The Appellate Division then affirmed the inspection order, finding that the
family court “carefully considered the pertinent facts and balanced the competing interest of defendant’s due process
rights to prepare and present a defense against the right of the victim and her family to the privacy and security of
their own home.” This Court granted the State’s motion for leave to appeal. State ex rel. A.B., 214 N.J. 233 (2013).
HELD: The family court did not abuse its discretion by permitting the defendant and his attorney to inspect and
photograph specified areas of the alleged victim’s home. Where, as here, the defense has made a legitimate request to
inspect a crime scene that is an alleged victim’s home and has articulated a reasonable basis to believe the inspection
will lead to relevant evidence on a material issue, then, subject to appropriate time, place, and manner restrictions
intended to protect the privacy interests of the alleged victim and her family, the discovery should be granted.
1
1. In a criminal case, the accused is generally “entitled to broad discovery.” State v. D.R.H., 127 N.J. 249, 256
(1992). Rule 3:13-3(b) grants automatic access to a wide range of relevant evidence, including “buildings or places
which are within the possession, custody or control of the prosecutor.” Courts also may order discovery “when
justice so requires,” weighing whether the “evidence sought could contribute to an adequate defense of the accused
person” and “cannot practicably be obtained from other sources” against whether there is a “likelihood of subjecting
witnesses to intimidation, unnecessary annoyance, harassment or embarrassment.” See State ex rel. W.C., 85 N.J.
218, 221, 227 & n.1 (1981) (citation and internal quotation marks omitted). When a defendant seeks discovery
outside of the categories permitted by the court rules, he bears the burden of establishing need. (pp. 13-15)
2. Because N.A.’s home is not “within the possession, custody or control of the prosecutor,” R. 3:13-3(b)(1)(E),
A.B.’s request to inspect the house does not fall within the scope of automatic discovery, and A.B. must show that
the inspection is justified. The Court has addressed the showing a defendant must make when a discovery demand
involves a witness’s compulsory viewing of a line-up or a psychological or physical examination of an alleged
victim or witness. The burden necessarily increases in direct proportion to the nature and extent of the intrusion.
When intrusive discovery is sought, courts must be careful that the process does not subject witnesses, particularly
alleged victims, “to intimidation, harassment, or embarrassment.” D.R.H., supra, 127 N.J. at 256. (pp. 16-18)
3. In a discovery proceeding “[a] victim of a crime shall be treated with fairness, compassion and respect,” N.J.
Const. art. I, ¶ 22, and a witness has the right “[t]o be free from intimidation, harassment or abuse by any person
including the defendant or [his attorney],” N.J.S.A. 52:4B-36(c). But the rights of the accused and alleged victims
and witnesses are not mutually exclusive. The rights reflected in the VRA and CVBR do not diminish those rights
possessed by the accused facing a criminal prosecution. (pp. 18-19)
4. Although New Jersey courts have not addressed the issue of allowing a defendant to inspect a crime victim’s
home, other jurisdictions generally require only a threshold showing of relevance and materiality, consistent with
W.C., supra, 85 N.J. 218. When courts have denied access to photograph or inspect a crime scene, it has generally
been because the defendant failed to show sufficient, or any, justification. Several of these courts suggested that had
the defense made a showing of relevance and need, the inspection would have been permissible. (pp. 19-21)
5. Unlike psychiatric and physical examinations, which are extraordinary intrusions into an alleged victim’s mind
and body, a defense attorney’s visit to the crime scene is a rather ordinary undertaking, and in some circumstances,
might constitute a professional obligation. When a crime scene is the victim’s home, significant concerns arise.
Any discovery request that has as its objective causing intimidation, harassment, or abuse of an alleged victim is
wholly illegitimate and must be denied. However, when the defense has made a legitimate request to inspect a
crime scene that is an alleged victim’s home and has articulated a reasonable basis to believe the inspection will lead
to relevant evidence on a material issue, then, subject to appropriate time, place, and manner restrictions intended to
protect the privacy interests of the alleged victim and her family, the discovery should be granted. This test is
similar to the one adopted in W.C., supra, 85 N.J. at 226. A defendant must show a reasonable basis to believe that
a home inspection of limited duration will yield relevant evidence. (pp. 22-25)
6. In this case, A.B. posits that it was not possible for the acts alleged by N.A. to have occurred undetected by any
of the adults in N.A.’s home. A.B.’s attorney asserts that it is essential for him to understand the dimensional layout
of the rooms, to view firsthand the sightlines, and to take photographs helpful to the defense. In considering the
motion to inspect N.A.’s home, the trial court weighed the competing interests: A.B.’s need for access to the scene
to prepare a defense and the family’s desire not to suffer the traumatizing effect of A.B.’s presence in their home,
with his attorney, “look[ing] for things they can use against [them] in Court.” The family court carefully crafted an
order that took into account the parties’ concerns. In so doing, the family court did not abuse its discretion and
N.A.’s family must comply with the order. (pp. 25-28)
The judgment of the Appellate Division is AFFIRMED, and the matter is REMANDED to the family
court for proceedings consistent with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and FERNANDEZ-VINA;
and JUDGE RODRÍGUEZ (temporarily assigned) join in JUSTICE ALBIN’s opinion. JUDGE CUFF
(temporarily assigned) did not participate.
2
SUPREME COURT OF NEW JERSEY
A-74 September Term 2012
072873
STATE OF NEW JERSEY
IN THE INTEREST OF
A.B.
Argued March 18, 2014 – Decided September 24, 2014
On appeal from the Superior Court, Appellate
Division.
Joie D. Piderit, Acting Assistant
Prosecutor, Special Deputy Attorney General,
argued the cause for appellant State of New
Jersey (Andrew C. Carey, Acting Middlesex
County Prosecutor, attorney).
Jack Venturi argued the cause for respondent
A.B. (Mr. Venturi, attorney; Mr. Venturi and
Andrew Tealer, on the brief).
Deborah C. Bartolomey, Deputy Attorney
General, argued the cause for amicus curiae
Attorney General of New Jersey (John J.
Hoffman, Acting Attorney General, attorney).
Jeffrey S. Mandel argued the cause for
amicus curiae Association of Criminal
Defense Lawyers of New Jersey (Cutolo
Mandel, attorneys; Mr. Mandel and Andrew
Stein, on the brief).
JUSTICE ALBIN delivered the opinion of the Court.
In this appeal, the State challenges an order of the family
court allowing seventeen-year-old A.B. and his attorney to
conduct a thirty-minute inspection of a home where the juvenile
1
is alleged to have committed sexual offenses against his six-
year-old cousin, N.A.
The juvenile moved for the inspection after the
prosecutor’s investigators had photographed the home and cut a
piece of rug from it for forensic testing. The juvenile’s
attorney gave specific and particularized reasons for the need
to visit and photograph the home in preparation for A.B.’s
defense. The prosecutor opposed the juvenile’s motion on the
ground that the defense inspection of the home -- the crime
scene -- constituted “intimidation, harassment or abuse” in
violation of the Crime Victim’s Bill of Rights, N.J.S.A. 52:4B-
36(c).
On interlocutory review, the Appellate Division upheld the
inspection order, finding that the family court had exercised
its sound discretion. The order provided that the inspection be
conducted at a reasonable time and in the presence of a
prosecutor’s investigator and with N.A.’s parents present in the
home, if they wished.
We now affirm. The right to the effective assistance of
counsel in a criminal proceeding includes the right to conduct a
reasonable investigation to prepare a defense. The right of the
accused to a fair trial, and the right of a purported victim and
her family to privacy must be balanced. The family court found
that A.B. made a sufficient showing of need to inspect and
2
photograph N.A.’s home. The court issued the inspection order
only after carefully weighing the juvenile’s fair-trial rights
and N.A.’s privacy interests and imposing reasonable time and
manner restrictions. We conclude that the family court did not
abuse its discretion.
I.
A.
In September 2011, A.B., then seventeen years old, was
charged in a juvenile complaint with offenses that would
constitute first-degree aggravated sexual assault, N.J.S.A.
2C:14-2(a), and third-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(a), if committed by an adult. The victim named
in the complaint is A.B.’s six-year-old cousin, N.A. The
offenses allegedly occurred during a three-week period when A.B.
was staying with his aunt and uncle in Old Bridge in Middlesex
County.
The genesis of this appeal is defense counsel’s letter to
the prosecutor requesting to inspect the scene of the alleged
crime -- N.A.’s home -- for the purpose of gaining an
understanding of the dimensions and relative locations of the
rooms where alleged sexual acts occurred and to take pictures
for preparation and use at trial. The prosecutor responded that
he would not agree to such an inspection without a court order.
A.B. then filed a motion to secure an inspection order. The
3
record before the family court included testimony from N.A.’s
mother and an investigator from the Middlesex County
Prosecutor’s Office.1 We now review that record.2
B.
On July 2, 2011, A.B., then seventeen years old, began what
would be a three-week stay at the Old Bridge home of his aunt
and uncle, Karen and George. They resided there with their six-
year-old daughter, N.A., who is A.B.’s cousin. A.B. lived in
Connecticut with his mother, Nancy, who did not accompany him on
this visit. Nancy and Karen are sisters. During his stay, A.B.
slept on a couch in the den, and N.A. slept in her own room.
On the Fourth of July, Karen and George hosted a cookout
attended by Karen’s brother from Connecticut and her sister and
brother-in-law from Texas. At this family gathering, nothing
seemed amiss, and the weeks that followed were uneventful.
On Sunday morning, July 24, as Karen passed the bathroom,
her daughter said, “Mommy, my peepee hurts.” When Karen asked
why, N.A. responded, “Because [A.B.] rubbed me down there.”
Karen observed that her daughter’s genital area was red and
1 The testimony was taken during an N.J.R.E. 104 hearing to
determine the admissibility of out-of-court statements made by
by N.A. to her mother and the investigator.
2 To protect their privacy, the juvenile defendant and juvenile
complainant are identified by their initials, and other family
members are identified by fictitious names.
4
irritated. Karen awakened her husband, a physician, who then
examined his daughter. He too noticed redness but saw no
evidence of penetration. Karen and George then went to the den
to confront A.B., who was asleep. They awoke A.B., and he
denied improperly touching his cousin, saying, “I wouldn’t do
that.” Karen had left the children home alone for two hours the
previous evening and presumed that the sexual contact occurred
then.
Karen told A.B. that she would take him home later that
day. Karen spoke with her sister Nancy, who apparently was made
aware of the accusation by her son. The sisters agreed to meet
at a McDonald’s in Connecticut with the children present.
At the McDonald’s, Karen allowed her sister to talk alone
with N.A. Nancy video-recorded her conversation with N.A.,
during which N.A. admitted to “massaging” herself. At some
point, Karen approached her daughter, and N.A. said to her
mother, “I did it to myself.” Karen asked if she was sure, and
N.A. said, “yes.” Karen further questioned her daughter, who
replied, “I’m red-handed[.] I did it to myself. I can’t help
it. I just like to touch it.” To further vouch for her
honesty, N.A. put her hand in the air and said, “I pinky swear.”
In her testimony, Karen admitted that one time she caught her
daughter rubbing her private parts in the bathtub.
5
Karen was distraught and yelled at her daughter for having
lied. But Karen admitted that she was not “truly convinced”
that her nephew had not abused her daughter. Karen returned
home and several days later broached the subject again with her
daughter. While the two sat on the sofa, Karen asked N.A.
whether she told the truth to her aunt. She assured her
daughter, “you will not be in trouble if you . . . lied about
it. You know, I love you no matter what.” According to Karen,
N.A. then related an incident in which A.B. offered her playtime
with his iPod if she would suck his “ding-dong.” When N.A. did
so, “some milky white stuff came out,” and “she spit it out and
brushed her teeth.” N.A. explained that she did not tell her
aunt Nancy the truth because she did not want to get in trouble.
Karen suspected that the oral-sex incident must have
happened during the Fourth of July cookout because of an unusual
remark made by N.A. that day. Mid-day, N.A. said to Karen,
“Mommy, I brushed my teeth,” when Karen typically had to remind
her daughter to brush. Later, during a video-taped interview
with a prosecutor’s investigator, N.A. also indicated that the
sexual incident with A.B. occurred during the cookout.
Investigators cut out a piece of the rug in the area where N.A.
claimed to have spit out the semen, but the forensic test
results were negative. Investigators took forty-one photographs
of the home.
6
II.
A.
At a hearing on the motion to inspect, defense counsel
insisted that he had to visit “the scene of the crime” to
prepare his case and that he was not adverse to a thirty-minute
time limit or to excluding A.B.’s parents from participating.
In opposing the motion, the prosecutor purported that the
photographs provided to the defense in discovery accurately
depicted the relevant areas of the house and asserted that the
“victim’s family should not have to vacate their home on the
hope . . . that the visit might reveal something useful to the
case.” The family court entered an order allowing “the defense
attorney to inspect the victim’s room and juvenile’s sleeping
area with an investigator and the juvenile in the company of an
investigator from the Prosecutor’s Office.” The order
restricted the inspection to “no more than 30 minutes,” excluded
the juvenile’s parents from participating, required that “the
victim’s family” agree to the date and time of the visit, and
allowed for the family to “be in another part of the house or
outside of the house” during the visit.
The State filed a motion for reconsideration. In that
motion, Karen certified that her family would be traumatized if
her nephew were allowed in her home and that she did “not feel
comfortable opening [her] home to the defense so that they can
7
look around for things they can use against us in Court.” The
State asserted that the order violated the Victim’s Rights
Amendment, the Crime Victim’s Bill of Rights, and case law
requiring a heightened and specific showing of relevance to
justify the invasion of a victim’s privacy rights. Counsel for
A.B. argued that inspection of the home where the alleged crime
occurred was a fundamental part of his preparation and would
allow him a spatial understanding of the layout of the rooms and
an opportunity to take photographs useful to the defense.
In denying the reconsideration motion, the court explained
that the order was crafted to take into account the privacy
concerns of Karen’s family. The court further explained that
the purpose of the order was “to ensure a fair playing field.”
The court emphasized that defense counsel had the right to
inspect “the scene of the crime with the juvenile . . . so he
can better prepare the case.”
B.
The Appellate Division denied the State’s motion for leave
to appeal. We granted the State’s interlocutory appeal and
summarily remanded to the Appellate Division for consideration
on the merits. We stayed the discovery pending a final
decision.
The Appellate Division affirmed the family court’s
inspection order. The panel found that the court “carefully
8
considered the pertinent facts and balanced the competing
interest of defendant’s due process rights to prepare and
present a defense against the right of the victim and her family
to the privacy and security of their own home.” The panel noted
that the case “turn[s] on the credibility of the witnesses” and
whether the juvenile could have committed the alleged sexual
abuse of his cousin “without detection.” The panel determined
that the family court “fully comprehended the invasion of the
victim’s family’s privacy and security entailed by allowing
defendant and his defense team access to their home.” The panel
did not second-guess the court’s judgment that the home
inspection “was relevant to [A.B.’s] claims of innocence and
could produce exculpatory evidence” and that the defense should
not be limited to “the photographs taken by the State.”
Finally, the panel concluded that the family court “soundly
exercised its discretion” by crafting an order that limited the
“intrusion on the victim’s family” to no more than what was
“absolutely necessary to accommodate defendant’s due process
rights.”
We granted the State’s motion for leave to appeal. State
ex rel. A.B., 214 N.J. 233 (2013). We also granted the motions
of the Attorney General and the Association of Criminal Defense
Lawyers of New Jersey (ACDL) to participate as amici curiae.
III.
9
A.
The State argues that the court’s discovery order
permitting defense counsel access to the home of the victim’s
family constitutes an invasion of privacy and a violation of the
Fourth Amendment’s bar against unreasonable searches, the
Victim’s Rights Amendment (VRA), N.J. Const. art. I, ¶ 22, and
the Crime Victim’s Bill of Rights (CVBR). The State posits that
defense counsel’s “bare and unsubstantiated claim” of a need to
inspect N.A.’s home to prepare for trial does not meet the
necessary relevancy standard. It maintains that the order is
not supported by the discovery rule, R. 3:13-3, the controlling
law in this state, or precedents in other jurisdictions. In the
State’s view, the court’s order “went too far in accommodating
the juvenile’s request,” and the defense should have found
satisfactory the photographs of the home provided by the
prosecutor.
B.
The Attorney General, as amicus curiae, urges this Court to
rule that a discovery order to inspect an alleged victim’s home,
even a home that is the scene of the alleged crime, shall not
issue in the absence of the accused demonstrating a substantial
need grounded in the evidence. Although acknowledging that “New
Jersey courts have the inherent power to order discovery when
justice requires,” the Attorney General insists that here the
10
court “granted the order with no showing of the juvenile’s need
to enter and inspect the house or that his need outweighed the
basic rights of the victim and her family.” The Attorney
General submits that, although the order raised Fourth Amendment
concerns, the court did not demand a satisfactory explanation
and allowed a fishing expedition.
C.
A.B. asks this Court to affirm the Appellate Division’s
upholding of the discovery order. A.B. contends that the order
to inspect the home -- the scene of an alleged crime -- is
necessary for him to have a “meaningful opportunity to present a
complete defense,” (citation and internal quotation marks
omitted), a right guaranteed by the Federal and State
Constitutions. A.B. emphasizes that he is presumed to be
innocent and that if adjudicated delinquent he faces the
prospect of confinement, classification as a sex offender,
notification and registration requirements under Megan’s Law,
and other adverse consequences. He claims that his counsel
requires an understanding of the spatial relationships and
configuration of rooms, where certain conduct was observed and
not observed, and that this understanding is critical to the
defense. He also claims that the photographs provided by the
State are inadequate for his purposes. He notes that the State
had access to the house and that he would be disadvantaged if he
11
were not permitted to inspect the residence. A.B., moreover,
disputes the State’s position that the case law of other
jurisdictions is not supportive of his right of access. Last,
A.B. reasons that any negative impact on N.A. and her family
would be minimal because the parents can choose to be absent
during the inspection, and N.A. does not have to be told that it
occurred.
D.
The ACDL, as amicus curiae, submits that the fair-trial
rights of the accused and rights of victims and owners of
private property where a crime has occurred can be protected
through an inspection order that imposes “reasonable time,
place, and manner restrictions.” According to the ACDL, “[i]f a
defendant demonstrates that it is reasonably probable that
exculpatory evidence exists at a crime scene or that access will
assist with trial preparation,” a court should grant a discovery
order identifying the precise area to be inspected and
specifying the time allotted for the inspection. The ACDL
believes that the burden rests with the objector to
“specifically identify compelling reasons for denying access
that cannot be alleviated through a carefully crafted order.”
IV.
A.
12
We must decide whether the family court abused its
discretion by entering a discovery order allowing the accused,
his attorney, and his investigator to inspect and photograph
specified areas of the alleged victim’s home for no more than
thirty minutes in the presence of a prosecutor’s investigator.
The issue presents a balancing of the right of the accused to a
fair trial and the right of an alleged victim and her family to
privacy in their home.
Appellate review of a trial court’s discovery order is
governed by the abuse of discretion standard. In re Subpoena
Duces Tecum on Custodian of Records, 214 N.J. 147, 162 (2013)
(citing Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344,
371 (2011)). Thus, an appellate court should generally defer to
a trial court’s resolution of a discovery matter, provided its
determination is not so wide of the mark or is not “based on a
mistaken understanding of the applicable law.” Pomerantz Paper,
supra, 207 N.J. at 371 (citation and internal quotation marks
omitted); see generally Flagg v. Essex Cnty. Prosecutor, 171
N.J. 561, 571 (2002) (holding that “abuse of discretion” “arises
when a decision is made without a rational explanation,
inexplicably departed from established policies, or rested on an
impermissible basis” (citation and internal quotation marks
omitted)). In construing the meaning of a statute, court rule,
or case law, “our review is de novo, and therefore we owe no
13
deference to the trial court’s or Appellate Division’s legal
conclusions.” Farmers Mut. Fire Ins. Co. v. N.J. Prop.-Liab.
Ins. Guar. Ass’n, 215 N.J. 522, 535 (2013); Willingboro Mall,
Ltd. v. 240/242 Franklin Ave., L.L.C., 215 N.J. 242, 253 (2013).
B.
Our courts do not countenance trial by surprise. The
accused in a criminal case is generally “entitled to broad
discovery.” State v. D.R.H., 127 N.J. 249, 256 (1992). “To
advance the goal of providing fair and just criminal trials, we
have adopted an open-file approach to pretrial discovery in
criminal matters post-indictment,” and our court rules implement
that approach. State v. Scoles, 214 N.J. 236, 252 (2013). Rule
3:13-3(b) grants a defendant automatic access to a wide range of
relevant evidence, including “buildings or places which are
within the possession, custody or control of the prosecutor,” R.
3:13-3(b)(1)(E).
In addition to the automatic discovery provision of Rule
3:13-3(b), our courts have “the inherent power to order
discovery when justice so requires.” State ex rel. W.C., 85
N.J. 218, 221 (1981). “Whether discovery should be expanded
involves exercising judicial discretion . . . [by] balancing the
beneficial effects of discovery against its disadvantages.” Id.
at 224. In exercising its discretion, a court should weigh
whether the “evidence sought could contribute to an adequate
14
defense of the accused person” and “cannot practicably be
obtained from other sources” against whether there is a
“likelihood of subjecting witnesses to intimidation, unnecessary
annoyance, harassment or embarrassment.” See id. at 227 & n.1
(citation and internal quotation marks omitted). When a
defendant seeks discovery outside of the categories permitted by
our court rules, he bears the burden of establishing need. Id.
at 228.
We must be mindful that the purpose of pretrial discovery
is to ensure a fair trial. A criminal trial where the defendant
does not have “access to the raw materials integral to the
building of an effective defense” is fundamentally unfair. Ake
v. Oklahoma, 470 U.S. 68, 77, 105 S. Ct. 1087, 1093, 84 L. Ed.
2d 53, 62 (1985).
Visiting the scene of the crime can be critical in
preparing a defense. One eminent commentator instructs trial
attorneys to visit the scene of the crime. See 32 New Jersey
Practice, Criminal Practice and Procedure § 20:1, at 481
(Leonard N. Arnold) (2010-2011 ed.) (“If you have not visited
the scene of the crime during the investigation of the case,
visit it . . . .”). That commentator observes that a “trial
attorney must know what the crime scene . . . looks like”
because it will enable “him/her to intelligently interview
witnesses, and to prepare both direct and cross examination.”
15
Ibid. Indeed, the failure of a defense attorney “to conduct an
investigation of the crime scene” can constitute ineffective
assistance of counsel. See, e.g., Thomas v. Kuhlman, 255 F.
Supp. 2d 99, 109, 112 (E.D.N.Y. 2003) (“[I]f properly armed with
the easily discoverable facts concerning the layout of the
victim’s apartment building, counsel would likely have chosen to
highlight the implausibility of the prosecution’s theory of the
crime.”).
A.B.’s request for access to inspect N.A.’s home does not
fall within the general scope of the automatic discovery rule
because her home is not “within the possession, custody or
control of the prosecutor,” R. 3:13-3(b)(1)(E). Therefore, he
must demonstrate that the inspection is justified. See W.C.,
supra, 85 N.J. at 228. We now consider the precise burden that
a defendant bears when seeking access to a home of an alleged
victim that is a crime scene.
C.
This Court has addressed the showing a defendant must make
when a discovery demand involves a witness’s compulsory viewing
of a line-up or a psychological or physical examination of an
alleged victim or witness. The evidentiary burden necessarily
increases in direct proportion to the nature and extent of the
intrusion.
16
A defendant who seeks to compel a witness’s attendance at a
lineup must show that the identification procedure has a
“reasonable likelihood” of having “some probative value” to a
“substantial material issue.” W.C., supra, 85 N.J. at 226. A
greater showing, however, is required if the defendant seeks a
psychiatric or physical examination of an alleged victim or
witness.
To compel a psychiatric examination of a victim for the
purpose of challenging her competency to testify, a defendant
must meet a more exacting standard and demonstrate a
“‘substantial showing of need and justification.’” State v.
R.W., 104 N.J. 14, 21 (1986) (quoting State v. Butler, 27 N.J.
560, 602 (1958)). In such a case, a “court must balance the
possible emotional trauma, embarrassment, and intimidation to
the complainant, particularly an extremely young child, against
the likelihood that the examination will produce material, as
distinguished from speculative, evidence.” Id. at 28.
In cases where the defense seeks a “physical examination
[of] child sex-abuse victims,” a “substantial showing of need
and justification” also must be demonstrated. D.R.H., supra,
127 N.J. at 259 (internal quotation marks omitted) (applying
standard to reject defendant’s request of gynecological exam of
juvenile). More particularly, the defendant must show that the
“examination can produce competent evidence that has substantial
17
probative worth,” which “could refute or neutralize
incriminating evidence or impugn the credibility of prosecution
witnesses.” Id. at 260-61. In all cases in which intrusive
discovery is sought, courts must be careful that the discovery
process does not subject witnesses, particularly alleged
victims, “to intimidation, harassment, or embarrassment.” Id.
at 256. Courts must guard against abusive discovery tactics
that can have a chilling effect on the readiness of witnesses
and victims to come forward and participate in the criminal
justice process. Ibid.D.
Our judicial discovery standards take into account the
concerns expressed in both the VRA and CVBR. Our courts
understand that in a discovery proceeding “[a] victim of a crime
shall be treated with fairness, compassion and respect,” N.J.
Const. art. I, ¶ 22, and that a witness has the right “[t]o be
free from intimidation, harassment or abuse by any person
including the defendant or [his attorney],” N.J.S.A. 52:4B-
36(c). But the rights of the accused and alleged victims and
witnesses are not mutually exclusive. One right does not have
to be sacrificed for another. They can and must be harmonized.
Thus, the rights reflected in the VRA and CVBR do not diminish
those rights possessed by the accused facing a criminal
prosecution. See, e.g., State v. Means, 191 N.J. 610, 620
18
(2007) (“The trial court should consider the concerns of the
victim or the victim’s family, but the court may not impinge on
a defendant’s constitutional rights.”); State v. Timmendequas,
161 N.J. 515, 556 (1999) (noting it is not error to consider
victim’s family’s concerns “provided that the constitutional
rights of the defendant are not denied or infringed”); Assem.
Comm. Statement to Assem. Concur. Res. No. 85, 204th Leg., 1st
Sess. 1 (Oct. 15, 1990) (placing VRA before voters with
statement that VRA “is not intended in any way to deny or
infringe upon the constitutional rights of any person accused of
a crime”).
E.
No case in New Jersey has addressed the issue of allowing a
defendant to inspect a crime victim’s home. In other
jurisdictions, courts that have adjudicated this issue have not
adopted the more restrictive substantial-need standard proposed
by the Attorney General. These courts generally require only a
threshold showing of relevance and materiality, consistent with
the requirements set forth in W.C. Compare W.C., supra, 85 N.J.
at 226 (holding that accused must make showing of “reasonable
likelihood” that identification procedure will be of “some
probative value” to “substantial material issue”), with State v.
Muscari, 807 A.2d 407, 417 (Vt. 2002) (requiring “some showing
that the requested intrusion is relevant and material”), State
19
v. Gonsalves, 661 So.2d 1281, 1282 (Fla. Ct. App. 1995)
(requiring “good cause . . . for inspection”), Henshaw v.
Commonwealth, 451 S.E.2d 415, 420 (Va. Ct. App. 1994) (requiring
“prima facie showing of relevance”), People v. Nicholas, 599
N.Y.S.2d 779, 783 (Sup. Ct. 1993) (requiring “prima facie
showing . . . [of] relevant [and necessary] material evidence,
not already provided”), and Bullen v. Superior Ct., 204 Cal.
App. 3d 22, 26 (Ct. App. 1988) (requiring “sufficient ‘plausible
justification’ and ‘good cause’”).
Significantly, when courts have denied defendants access to
photograph or inspect a crime scene, it has generally been
because the defendant failed to show sufficient, or any,
justification. See, e.g., Muscari, supra, 807 A.2d at 418(denying inspection because defendant “offered no reason or
justification”); Nichols, supra, 599 N.Y.S.2d at 782 (denying
defendant’s request to photograph inside ex-wife’s apartment,
where he previously lived, because he made only “speculative
showing” and failed to allege that “inspection would yield any
information different from that already received from [police]
photographs and crime scene reports”); Bullen, supra, 204 Cal.
App. 3d at 27 (denying inspection where defendant presented only
“conclusional” justification); People v. Poole, 462 N.E.2d 810,
813 (Ill. Ct. App. 1984) (denying defendant’s request to take
20
photographs of victim’s room to show lighting conditions because
such conditions could not reliably be reproduced).
Several of these courts suggested that had the defense made
a showing of relevance and need, the inspection would have been
permissible.3 See Muscari, supra, 807 A.2d at 417 (noting
general trend among states to permit inspections on “some
showing that the requested intrusion is relevant and material to
the defense”); Bullen, supra, 204 Cal. App. 3d at 26 (requiring
“defendant to demonstrate sufficient ‘plausible justification’
and ‘good cause’”); Nicholas, supra, 599 N.Y.S.2d at 783
(requiring “prima facie showing” that discovery will yield
“relevant material evidence”).
In light of New Jersey’s discovery precedents, and out-of-
state authority, we next turn to the standard that a defendant
must satisfy to secure permission to inspect an alleged victim’s
home that is designated a crime scene.
3 In one case cited by the State, the Oregon Supreme Court denied
an inspection of a home on the basis that the trial court, under
Oregon law, had no inherent power to issue the order to a non-
party. See State ex rel. Beach v. Norblad, 781 P.2d 349, 350
(Or. 1989) (“Absent party status, counsel has not identified any
other basis (and we know of none) under which the . . . trial
judge could . . . issue such an order to [the homeowner].”
(citing State ex rel. Roach v. Roth, 652 P.2d 779, 780 (Or.
1982) (holding that Oregon courts have “no general power, merely
by virtue of conducting a trial, to order persons how to conduct
themselves outside the courtroom”))). Because New Jersey
courts, by law, have greater power to order discovery than
Oregon courts, the Oregon case is not germane.
21
V.
We begin by reaffirming that our trial courts are empowered
to order discovery beyond that mandated by our court rules when
doing so will further the truth-seeking function or ensure the
fairness of a trial. See W.C., supra, 85 N.J. at 221. In
exercising its discretion, a court must weigh the accused’s need
for a particular species of discovery against the impact the
discovery request may have on the privacy and lives of witnesses
and alleged victims.
A discovery request by the defense for a psychiatric or
gynecological examination of an alleged victim is not routine.
Such requests are rarely made. Moreover, psychiatric and
physical examinations are extraordinary intrusions into an
alleged victim’s mind and body, and therefore the heightened
standard of substantial need is appropriate in such cases. See
D.R.H., supra, 127 N.J. at 258-59; R.W., supra, 104 N.J. at 28
n.3. Any analysis of substantial need must account for the
potential trauma, embarrassment, and anxiety that might be
caused by granting such a discovery request.
In contrast, a defense attorney’s visit to the scene of the
crime is a rather ordinary undertaking, and in some
circumstances, such an inspection might constitute a
professional obligation. See Thomas, supra, 255 F. Supp. 2d at
112. The State generally will have thoroughly investigated a
22
crime scene, securing evidence and taking photographs.
Familiarity with a crime scene may be essential for an effective
direct or cross-examination of a witness -- and even for
presenting exculpatory evidence. For example, the inability of
a witness to have observed an event because of the layout of the
area can break a case. See id. at 109-10. In many instances,
the defense will not be on an equal footing with the prosecution
if it is barred from a crime scene to which the prosecutor has
access.
Obviously, when a crime scene is the home of a victim,
other significant concerns arise. The right to privacy in one’s
home is a basic right, and all alleged victims of crime have an
interest in not revisiting a traumatic event. However, the
undeniable reality is that a criminal prosecution will intrude
into an alleged victim’s privacy. In this case, prosecutor’s
investigators took pieces of rug and photographed N.A.’s home;
the child and her parents were questioned by law enforcement
authorities; at a pretrial hearing the mother was subject to
extensive questioning on direct and cross-examination about many
aspects of the private life of her family; and N.A. and her
mother will have to testify at trial.
Participation in the criminal justice process will
undoubtedly be a source of inconvenience and anxiety, and will
result in some incursion into privacy rights of witnesses. Some
23
of these adverse consequences are the inevitable price that must
be paid to ensure the accused receives a fair trial.
Nevertheless, let us be clear: victims have a right “[t]o be
free from intimidation, harassment or abuse.” N.J.S.A. 52:4B-
36(c). Any discovery request that has as its objective causing
intimidation, harassment, or abuse of an alleged victim is
wholly illegitimate and must be denied. We will not sanction
the use of the criminal justice system for an impermissible
purpose.
However, when the defense has made a legitimate request to
inspect a crime scene that is an alleged victim’s home and has
articulated a reasonable basis to believe the inspection will
lead to relevant evidence on a material issue, then, subject to
appropriate time, place, and manner restrictions intended to
protect the privacy interests of the alleged victim and her
family, the discovery should be granted. This test is similar
to the one adopted in W.C., supra, 85 N.J. at 226 -- a case
involving a request for a compulsory identification procedure --
and comports with standards in other jurisdictions. We
emphasize that discovery requests based on sheer speculation
about what is expected to be gained from an inspection of an
alleged victim’s home will not suffice. The burden rests with
the defendant to show a reasonable basis to believe that a home
inspection of limited duration will yield relevant evidence.
24
We add this caveat: defendants who seek an inspection
beyond the first one granted will be held to a heightened
standard and will have to demonstrate substantial need, which
will include giving articulable reasons why the initial
inspection was not adequate for investigative purposes. In such
circumstances, the privacy interests of the alleged victim’s
family will weigh even more heavily in the balance. We also
recognize that there may be exceptional situations in which the
trial court might permit an inspection by defense counsel but
deem it necessary to exclude the defendant from participating.
Each case will depend on its unique facts and require the trial
court to exercise its sound discretion.
We now turn to the facts of this case to determine whether
the family court properly exercised its discretion.
VI.
A.B. is charged as a juvenile with aggravated sexual
assault and endangering the welfare of his six-year-old cousin,
N.A. An adjudication that he committed these offenses will have
immediate and long-term dire consequences. He faces potential
incarceration and designation as a sex offender, which will
trigger registration and notification obligations. Therefore,
A.B. must have a fair opportunity to defend against these
charges.
25
The trial of this case is likely to be a credibility
contest between N.A. and A.B. No physical evidence corroborates
the charges. N.A. alleges that A.B. coaxed her to perform oral
sex in her bedroom on the Fourth of July -- the day of the
cookout at her home when four adults apparently were on the
patio outside and her mother in the kitchen. She also claims
that A.B. improperly touched her genitalia on several occasions.
Although A.B. was present in N.A.’s home on the day of the
cookout, he has denied ever sexually abusing his cousin. A.B.
posits that on that day it was not possible for the acts alleged
by N.A. to have occurred undetected by any of the five adults.
The defense notes that the photographs provided by the State do
not show that N.A.’s bedroom windows look out onto the
patio/pool area, that the kitchen is steps away from the
bedroom, and that there is a clear view looking into the bedroom
from the hallway. A.B.’s attorney asserts that it is essential
for him to understand the dimensional layout of the rooms, to
view firsthand the sightlines, and to take photographs helpful
to the defense. Counsel maintains that he will be disadvantaged
because the prosecutor has had the opportunity to view the scene
while he has not. A.B.’s counsel has stated that it is his
routine practice to visit the scene of the crime and that he
would consider himself derelict if he failed to do so.
26
The trial court weighed the competing interests: the
juvenile’s need for access to the scene to prepare a defense,
and the alleged victim and her family’s desire not to suffer the
traumatizing effect of the juvenile’s presence in their home,
with his attorney in tow, “look[ing] for things they can use
against [them] in Court.” The family court carefully crafted an
order that took into account the parties’ concerns. The court
barred the juvenile’s parents from participating in the
inspection, restricted the inspection to the victim’s room and
the juvenile’s sleeping area, and limited the inspection to no
more than thirty minutes. The court also allowed for an
investigator from the Prosecutor’s Office to be present during
the defense inspection and for the family to “be in another part
of the house or outside of the house” during the visit. N.A. is
not required to be present or even know about the visit.
Having thoroughly reviewed the record, we cannot conclude
that the family court abused its discretion. N.A.’s family must
comply with the discovery order.4
4 We disapprove of the comment in State v. Gomez, 430 N.J. Super.
175, 187 (App. Div. 2013), that court orders can only be
directed at the prosecutor’s office and not to alleged victims
or other witnesses. There is simply no support for that
assertion. See W.C., supra, 85 N.J. at 225 (stating that court
order may be obtained to compel attendance at lineup of alleged
victim or other witness); see also State v. Garcia, 195 N.J.
192, 204 (2008) (noting that non-party Hudson County jailor must
comply with order to transfer subpoenaed inmate).
27
Last, the entry of the order -- after the parties were
given notice of the juvenile’s request and a reasonable
opportunity to be heard -- does not sanction an unreasonable
search under the Fourth Amendment of the United States
Constitution, as the State and Attorney General contend. They
do not contend that a properly authorized order requiring a
compulsory identification procedure or a psychiatric or physical
examination violates the Fourth Amendment. They do not explain
why a properly authorized order to inspect a home is different
in kind for Fourth Amendment purposes. Indeed, a court has the
authority to order, if appropriate, a jury to view the scene of
a crime. N.J.S.A. 2B:23-16(a) (“At any time during trial the
court may order that the jury view the lands, places or personal
property in question to understand the evidence better.”).
VII.
For the reasons expressed in this opinion, we affirm the
judgment of the Appellate Division and remand to the family
court for proceedings consistent with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and
FERNANDEZ-VINA; and JUDGE RODRÍGUEZ (temporarily assigned) join
in JUSTICE ALBIN’s opinion. JUDGE CUFF (temporarily assigned)
did not participate.
28
SUPREME COURT OF NEW JERSEY
NO. A-74 SEPTEMBER TERM 2012
ON APPEAL FROM Appellate Division, Superior Court
STATE OF NEW JERSEY
IN THE INTEREST OF
A.B.
DECIDED September 24, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY
CHECKLIST AFFIRM/REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) ------------------------- -----------------------
6
1