State of New Jersey in the Interest of A.B.

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