Legal landscape note: This article was originally published in 2014 and describes the law as it stood at that time. New Jersey law changes frequently.
You are accused of a crime, and the State's case turns on what allegedly happened inside the accuser's home -- a scene your defense has never been allowed to see. Can prosecutors keep it that way? The New Jersey Supreme Court said no: a defendant who shows a reasonable likelihood that an inspection has probative value may inspect the crime scene, even when that scene is an alleged victim's home. The court drew the limit just as clearly -- discovery tactics aimed at intimidating, harassing, or simply abusing the alleged victim are an illegitimate reason for access.
In a unanimous ruling issued Sept. 24, the court said inspecting the home of a crime victim, under certain circumstances, may be necessary to ensure that the defendant can prepare an adequate defense and receive a fair trial.
"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," Justice Barry Albin wrote for the court in State of New Jersey in the Interest of A.B.
Albin said judges will have to balance the rights of a defendant to be able to prepare a case against the privacy rights of a crime victim.
"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," Albin said. "Some of these adverse consequences are the inevitable price that must be paid to ensure the accused receives a fair trial." The Association of Criminal Defense Lawyers of New Jersey participated as amicus. Its attorney, Jeffrey S. Mandel, said the court struck the proper balance between a victim's right to privacy and a defendant's right to a fair trial.
There may be evidence that a defendant's lawyer will find only through an on-site inspection and not merely a review of photographs and other evidence obtained by law enforcement's prior examination of the scene, Mandel, of Cutolo Mandel in Manalapan, N.J., said.
"Importantly, the Supreme Court made it clear that judges can issue an order that compels an owner of private property to open that property up for inspection under appropriate circumstances," Mandel said.
The case decided by the court involves a defendant, identified only as A.B., who, when he was 17 years old, allegedly sexually assaulted his 6-year-old niece at her home in Old Bridge, N.J., during a Fourth of July barbecue in 2011 and on other occasions. The girl said at least one of the incidents occurred in her bedroom, according to the opinion.
The police took a total of 41 photos during their inspection. A.B.'s attorney, however, asked a judge to permit him to inspect the house as well. The attorney argued that the girl's story could not be true since her room was easily visible from other areas of the house and from outside as well, and that was not reflected in the state's photos, the opinion said.
The judge granted the request with several conditions: the inspection could last no longer than 30 minutes, A.B.'s parents could not be present, the victim's family had to agree to the time and date, and the victim's family must be allowed to be present somewhere else in the house or outside the house.
The Appellate Division affirmed and the Supreme Court agreed to hear the appeal.
Both the Middlesex County Prosecutor's office and the Attorney General's office, which also participated as amicus, objected to the search, saying it would violate the privacy rights of the victim and her family.
Albin said a defense attorney's right to inspect a crime scene is "critical" to the preparation of a defense.
"A criminal trial where the defense does not have 'access to the raw materials integral to the building of an effective defense' is fundamentally unfair," Albin said, quoting the U.S. Supreme Court's 1985 ruling in Ake v. Oklahoma.
He also noted a 2003 case from the U.S. District Court for the Eastern District of New York -- Thomas v. Kuhlman -- in which an attorney's failure to inspect a crime scene led to a ruling of ineffective assistance of counsel.
Albin said that for the defense to be allowed to inspect a crime scene that is also the victim's home, the defense must show a "reasonable likelihood" that there is some probative value to be served by the inspection.
The standard is not as tough as the "substantial showing of need" required for a victim to be required to undergo a psychological or physical examination, Albin said.
But Albin warned that the process must not be abused.
"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," Albin said. "Any discovery request that has as its objective causing intimidation, harassment, or abuse of the alleged victim is wholly illegitimate and must be denied.
"We will not sanction the use of the criminal justice system for an impermissible purpose," Albin said.
In this case, he said, the trial judge did not abuse his discretion in allowing A.B. access to the victim's home for a brief inspection.
A.B.'s attorney, New Brunswick, N.J., solo Jack Venturi, was away from his office and could not be reached for comment.
"We are gratified that under the Court's ruling, a defendant is not permitted to access a victim's home, even if that home is the scene of the crime, unless the defendant demonstrates a reasonable basis to believe that the home inspection will yield relevant evidence concerning a material issue. We are disappointed, however, that the defense was deemed to have met their burden under the facts presented in this case," said Deputy Attorney General Daniel Bornstein.
Based on reporting by the New Jersey Law Journal.