State v. Oscar Ramirez

• Court: Supreme Court of New Jersey
• Decided: November 21, 2022
• Docket: A-1-21
• Status: Published

Opinion

SYLLABUS

This syllabus is not part of the Court’s opinion. 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 Court and may not summarize all portions of the opinion.

State v. Oscar Ramirez (A-1-21) (085943)

Argued September 28, 2022 -- Decided November 21, 2022

SABATINO, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

In this appeal, the Court considers the conflicting rights of a sexual assault victim -- to decline to participate in an investigation and to enjoy solitude at home -- and a person accused of a sexual offense -- to receive an effective defense, to assert the right to confrontation and compulsory process of witnesses, and to due process -- in the context of a prosecutor’s motion for a protective order relieving the prosecution of its obligation to supply a victim’s residential address to defense counsel.

D.C., a twenty-three-year-old woman, was sexually assaulted shortly after midnight on October 25, 2019, in a North Bergen cemetery. The victim stated that the attacker held a box cutter to her neck and told her to be quiet or he would kill her. Based on surveillance footage collected from that night, the police identified defendant Oscar Ramirez as the attacker. The police arrested defendant, who had previously been convicted of two assaults that arose out of initial charges of alleged sexual contact. Defendant gave a statement in which he denied -- without being asked about the attack -- having committed “the rape” but identified himself as the man shown in the surveillance footage and stated that he had previously killed people. Laboratory results matched defendant’s DNA to swabs taken from the victim, and defendant was charged with multiple offenses related to the incident.

When supplying pretrial discovery to defense counsel, the prosecution redacted the address where the victim lived at the time of the offense and also declined to provide the new address to which she moved after the attack. To justify withholding that information, the prosecution moved for a protective order under Rule 3:13-3(e) and submitted a sworn certification from an assistant prosecutor asserting that the victim did not want her address to be provided to the defense, that she was afraid defendant or someone close to him would locate her, and that she did not want to speak to the defense before trial. Defense counsel opposed the motion, arguing that Rule 3:13-3(e) required the prosecution to provide the victim’s contact information to the defense, even if defendant himself is not allowed to have access.

1 The motion judge granted the prosecutor’s motion in part, ordering that the address be disclosed to defendant’s counsel, who would not be permitted to disclose any of the information to the defendant. Notably, the judge’s written decision did not discuss the statutory or constitutional rights of sexual assault victims, beyond citing the Court’s recognition in State v. R.W., 104 N.J. 14, 28 (1986), that there is a “heightened need to protect victims from trauma and intimidation in sexual assault cases.” More specifically, the judge did not cite to the Victim’s Rights Amendment, the Crime Victim’s Bill of Rights, or the Sexual Assault Victim’s Bill of Rights. The Appellate Division reversed, stressing that “to permit defense investigators to access the victim’s home, against her expressed instructions,” would violate her right to privacy. 467 N.J. Super. 359, 369 (App. Div. 2021). The Court granted leave to appeal. 248 N.J. 252 (2021)

HELD: After reviewing the relevant statutes and authorities that must be considered in balancing the competing interests and rights of a sexual assault victim and the person accused of the sexual offense, the Court sets forth a framework of procedures and considerations to apply going forward when a prosecutor seeks to withhold from discovery a sexual assault victim’s address. Because neither the ruling of the trial court nor that of the Appellate Division sufficiently addresses the competing interests explored in the Court’s opinion, the Court remands the matter for a more fulsome balancing of the competing interests.

1. Rule 3:13-3 governs the prosecution’s general discovery obligations and the contested motion for a protective order in this case. Under Rule 3:13-3(a) and (b)(1), once an indictment has issued, a defendant has a right to automatic and broad discovery of the evidence the State has gathered in support of its charges. Reciprocally, under Rule 3:13-3(b)(2), defense counsel must supply the prosecution with similarly broad categories of items. Rule 3:13-3(b)(1)(F) specifically imposes upon the prosecutor an obligation to provide a defendant post-indictment with a witness’s address. Nevertheless, criminal discovery has its limits, and information must be shown to be relevant to the issues in the case in order to be subject to disclosure. Another important limit on a defendant’s right to discovery is the chilling and inhibiting effect that discovery can have on material witnesses who are subject to intimidation, harassment, or embarrassment. Rule 3:13-3(e) details how the prosecution may obtain a protective order from the court, allowing it to withhold from the defense certain discovery that otherwise would be mandated. A trial court considers “the totality of the circumstances” in determining whether good cause exists to grant the motion. One factor the court may consider when evaluating good cause is the “protection of witnesses and others from physical harm [and] threats of harm”; another is “confidential information recognized by law.” R. 3:13-3(e)(1). Appellate courts defer to a trial court’s ruling on a motion for a protective order unless the trial court abused its discretion or its determination is based on a mistaken understanding of the applicable law. (pp. 15-21) 2 2. The Court reviews in detail the legislative enactments, constitutional amendment, and court rules that afford enhanced protections to sexual assault victims and other crime victims in New Jersey. Together, the authorities reviewed by the Court reflect a robust codified public policy to protect sexual assault victims in this State from undue incursions upon their rights of privacy and solitude and the Legislature’s recognition that victims can re-experience trauma each time they discuss the violent incident. (pp. 21-28)

3. Weighing against those important rights of a victim are the countervailing rights of a person accused of a criminal offense, protected expressly or impliedly by the federal and New Jersey Constitutions and decades of jurisprudence. Conceptually, they encompass the rights (1) to the effective assistance of counsel in defending the case, (2) to confront the prosecution’s witnesses at trial and to have the compulsory process of exculpatory witnesses, and (3) to due process. The Court reviews the nature and scope of each of those rights. Significantly, the right to the effective assistance of counsel in a criminal proceeding includes the right to conduct a reasonable investigation to prepare a defense, but that right is not absolute and has been balanced in case law against the victim’s privacy rights. The constitutionally granted right to compulsory process permits a defendant to call and examine witnesses as part of the defense, and the Supreme Court of the United States has recognized that asking a witness during cross-examination where that witness lives is important to the exercise of the related right of confrontation. Again, however, those rights are not absolute, and trial judges have discretion to limit cross- examination if it invades the witness’s constitutional rights or merely seeks to harass, annoy, or humiliate the witness. Finally, the Due Process Clause gives defendants the right of access to adverse witnesses during the investigation phase of the defense. State v. Blazas, 432 N.J. Super. 326, 340 (App. Div. 2013). Even so, because a witness has the “absolute and personal right to either grant or deny” a pretrial interview, “the protected [due process] right is the opportunity for pretrial access; it is not a guarantee of pretrial access.” See id. at 343-46. A witness’s decision must be a personal one, however; any prosecutorial “interference with a witness’s decision to grant or deny an interview to the defense . . . deprives a defendant of his right to present a complete defense.” Id. at 343. (pp. 28-35)

4. Relying on principles distilled from the authorities reviewed, the Court holds that, going forward, certain procedures and considerations apply when a prosecutor seeks to withhold from discovery a sexual assault victim’s address:

The prosecution must move for a protective order under Rule 3:13-3(e). The motion must be supported by a sworn statement from the victim attesting the victim does not want the address disclosed to the defendant or defense counsel. If such a motion is filed, the defense may file a response with the court expressing reasons

3 why a protective order should be denied and, in particular, why the defense needs the victim’s address. The trial court may permit a reply by the prosecutor.

If the defense asserts it wants the address, among other things, for the purpose of contacting and interviewing the victim, the court shall then consider various “supervised pathway” options designed to assure that the victim’s decision is personal and also that the victim has been made aware of the defense’s reasons for wanting the address and to make contact. The supervised pathway options include, but are not limited to, a written request by the defense that the court may permit to be conveyed to the victim through the prosecutor or court staff; an in camera interview of the victim by the judge; a limited call between defense counsel and the victim; or another court-devised option that would fairly balance the victim’s rights to refrain from participation against the defendant’s rights to prepare a defense.

After implementing one or more of those options, the court shall rule on whether good cause for a protective order has been shown, and, if so, what court- imposed restrictions or conditions shall be observed. In fashioning a protective order, the trial court shall accord heavy weight to the victim’s interests in having solitude and privacy at that victim’s residence in the wake of a highly traumatic experience. The home can be a place of refuge for a victim, and the Court’s jurisprudence has long respected the heightened protections of privacy and solitude in one’s dwelling.

Accordingly, there shall be a presumption that, if the defense is allowed by the court to obtain the address, its investigators shall not appear at the victim’s residence without the victim’s advance consent and court approval. In the rare instance in which the court finds the presumption is overcome, it shall specify within the protective order reasonable limitations on the time, place, and manner of such at- home contact. (pp. 35-41)

5. So that the process outlined in this opinion may be implemented in this case, the Court remands the matter and provides guidance for the proceedings on remand. The Court expresses no view, however, of the facts of this case or how the trial court should rule on remand. (pp. 41-42)

The judgment of the Appellate Division is VACATED. The matter is REMANDED for further proceedings.

CHIEF JUSTICE RABNER; JUSTICES PATTERSON, SOLOMON, PIERRE- LOUIS, and FASCIALE; and JUDGE FISHER (temporarily assigned) join in JUDGE SABATINO’s opinion.

4 SUPREME COURT OF NEW JERSEY A-1 September Term 2021 085943

State of New Jersey,

Plaintiff-Respondent,

v.

Oscar Ramirez,

Defendant-Appellant.

On appeal from the Superior Court, Appellate Division, whose opinion is reported at 467 N.J. Super. 359 (App. Div. 2021).

Argued Decided September 28, 2022 November 21, 2022

Rochelle Watson, Deputy Public Defender II, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Rochelle Watson, of counsel and on the briefs, and Nakea J. Barksdale, Assistant Deputy Public Defender, on the briefs).

John R. Mulkeen, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Erin M. Campbell, Assistant Prosecutor, on the briefs).

Alexander Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation and Rutgers Constitutional Rights Clinic Center for Law & Justice, attorneys; Alexander Shalom and Jeanne

1 LoCicero, of counsel and on the brief, and Ronald K. Chen, on the brief).

Joshua P. Law argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Pashman Stein Walder Hayden, attorneys; CJ Griffin, on the brief).

Sarah D. Brigham, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Matthew J. Platkin, Acting Attorney General, attorney; Sarah D. Brigham, of counsel and on the brief).

JUDGE SABATINO (temporarily assigned) delivered the opinion of the Court.

In this appeal, we consider the conflicting rights of a sexual assault

victim -- to decline to participate in an investigation and to enjoy solitude at

home -- and a person accused of a sexual offense -- to receive an effective

defense, to assert the right to confrontation and compulsory process of

witnesses, and to due process. Specifically, we ponder these issues in the

context of a prosecutor’s motion under Rule 3:13-3(e) for a protective order

relieving the prosecution of its obligation under subsection (b) of that rule to

supply a victim’s residential address to defense counsel.

We hold that the resolution of such motions requires careful judicial

oversight and a sensitive balancing of the competing interests. To guide that

process, we provide a gloss to Rule 3:13-3 to ensure that a defendant’s counsel

2 and agents do not have unfettered access to a sexual assault victim’s home

address through pretrial discovery, while also requiring the trial court to

consider, in its discretion, judicially supervised “pathways” for: (1) conveying

to the victim the defense’s reasons for seeking to contact the victim; and (2)

verifying that, after being neutrally informed of those reasons, the victim still

declines to be interviewed or to participate in the defense’s investigation.

Because neither the ruling of the trial court nor that of the Appellate

Division in this case anticipated such guidance or fully addressed the

competing interests at stake, we vacate their decisions and remand for further

proceedings.

I.

A.

We briefly summarize the facts that provide the backdrop to this

discovery dispute, mindful they have not yet been established at a trial.

In the late evening hours of October 25, 2019, D.C.,1 a twenty-three-

year-old woman, was walking home from her shift as a waitress at a restaurant

in North Bergen. Shortly after midnight, a man approached D.C. and grabbed

her. He held a box cutter to her neck and told her to be quiet or he would kill

1 We use initials for the alleged sexual assault victim to protect her privacy. See R. 1:38-3(a)(6), (12). We generally will refer to her as “the victim.” 3 her. He forced her into a nearby cemetery, removed all her clothing, and

sexually assaulted her in multiple ways. The man reiterated to the victim to be

quiet, or he would kill her.

When the attacker heard police sirens, he pulled up his pants, told the

victim to count to twenty, stole her purse and phone, and left. The victim

believed the man had ejaculated without wearing a condom because he wiped

his penis with his clothing before leaving. She fled from the cemetery in her

underwear, holding her clothes. She flagged down a couple driving by for

help, and they took her to the North Bergen Police Department.

At 4:15 a.m., a nurse examined the victim using a rape kit. The victim

described her attacker to the nurse as “short, Hispanic, white skin, beard, long

hair, loose big eyes.” She also stated he was “approximately five feet, four

inches tall, wearing a dark sweatshirt, pants and . . . a cross body backpack.”

She reported that he smelled of alcohol.

Local surveillance footage from that night showed a man getting a

haircut at a nearby barber shop, going to a bar or club, and then following

another woman before losing track of her. The footage later showed the same

man following the victim on the street. At 12:13 a.m., the video showed the

victim leaving the cemetery, clutching her clothes. The man appears on the

4 video walking on a nearby street at 12:30 a.m. The footage did not show the

alleged sexual assault.

Based on information from an employee who worked at the barber shop

depicted in the footage, the police identified the man in the video as defendant

Oscar Ramirez, who resided in North Bergen.

The police learned that defendant had previously been convicted of two

assaults that arose out of initial charges of alleged sexual contact.

Specifically, in October 2017, after being charged with aggravated sexual

assault with a weapon, defendant was convicted of third-degree aggravated

assault. In May 2018, after being charged with criminal sexual contact,

defendant was convicted of simple assault.

The police arrested defendant. Apparently without being asked about

the alleged attack, defendant gave a statement to the police in which he denied

committing what he termed “the rape of a girl.” A police officer responded, “I

didn’t mention anything about the rape of a girl.” Defendant explained that his

father had told him about a rape in North Bergen. Defendant added that if he

had done something to a woman, he did not remember it because he was under

the influence of alcohol and drugs. Defendant denied that he had been in the

cemetery.

5 Despite his denials, defendant did identify himself to the police as the

man shown in the surveillance footage. He also referred to himself as a “bad

person.” He admitted, without specifics, to previously “killing people in

Mexico.” When asked what he would say to the victim if she were present,

defendant told the detective that he would apologize. Defendant has been

confined in pretrial detention since his arrest.

Laboratory results thereafter matched defendant’s DNA to swabs taken

from the victim’s external genitalia and underwear on the night of the assault.

A Hudson County grand jury charged defendant with kidnapping,

aggravated sexual assault, armed robbery, possession of a weapon for an

unlawful purpose, unlawful possession of a weapon, aggravated criminal

sexual contact, and terroristic threats.

B.

When supplying pretrial discovery to defense counsel, the prosecution

furnished the victim’s name and date of birth, as well as a search reflecting

that the victim had no prior criminal history of arrests. However, the

prosecution redacted from the supplied materials the address where the victim

lived at the time of the offense. According to the prosecution, the victim

moved to a different residence after the attack, and she provided an updated

6 home address to the prosecutor’s office. The prosecution also did not provide

the new address to defense counsel.

To justify withholding the victim’s former and current addresses, the

prosecution moved for a protective order under Rule 3:13-3(e). The

prosecution submitted a sworn certification from an assistant prosecutor in

support of the motion. His certification asserts, in relevant part, that

[v]ia a Zoom conference on September 17, 2020, Victim told the undersigned and [an agent within the Prosecutor’s Office] that she does not want her address information provided to the defense. She is afraid that Defendant or someone close to him would be able to locate her. Moreover, she also stated she does not want to speak to the Defense before trial about the case, including in-person, by telephone or by video conference. The undersigned told her this decision was her choice, not the decision of the Prosecutor’s Office.

Other than the certification, the record contains no documents memorializing

the Zoom call between the prosecutor’s office and the victim. Notably, the

prosecution did not provide a statement signed or attested to by the victim

herself with its motion. The prosecution served the motion and supporting

certification on defense counsel, who filed opposition.

In oral argument on the motion, the prosecutor asserted that this case --

one in which defendant reportedly made threats to kill the victim and admitted

to killing people in the past -- is particularly egregious and justifies a

7 protective order. The prosecutor specifically represented that some victims

have told him in previous cases that defense investigators have come to their

homes and claimed they work for “the State” without explaining they work for

the public defender.

Defense counsel responded that Rule 3:13-3(e) required the prosecution

to provide the victim’s contact information. Counsel asked that, at the very

least, the defense team, including professional investigators, be given access to

the victim’s contact information, even if defendant himself is not allowed to

have access. Defense counsel urged that his investigators be allowed to knock

on the victim’s door, explain what their purpose is, and let the victim decide

whether she wants to talk to them. He maintained that his investigators are

professional, always identify themselves as working for the defendant, try only

to get information, and do not intimidate or harass victims. Counsel further

assured that if his investigators call the victim and she declines to speak, that

choice would be honored.

The motion judge granted in part and denied in part the prosecution’s

motion. Specifically, the judge “order[ed] the [prosecution] to provide

8 defendant’s counsel with [the] victim’s contact information 2 and counsel and

his investigatory team to not disclose any of the information to defendant.”

The motion judge acknowledged the prosecution’s contention that a

protective order would “ensure [the] victim’s physical safety and keep her free

from intimidation.” The judge also noted the defense’s counterargument that

the defense team should have the victim’s address to exercise defendant’s own

constitutional rights, “so that [his counsel and investigators] may contact [the]

victim and effectuate effective assistance of counsel.” The judge stated that

the court must “assess the reasonableness of any intimidation [the victim] may

feel” and balance “the victim’s physical safety” and “subjective fears” against

“defendant’s Constitutional rights.”

The judge specifically found that the victim’s concerns about defendant

personally learning of her address were “objectively reasonable,” given what

he termed the “heinous” facts of this case. The judge further noted the victim

“could potentially be in danger if defendant knew her address.” He added,

“[a]lthough defendant is currently incarcerated, there is a potential danger that

if he desired to harm or intimidate the victim he could enlist others to do so if

he knew her contact information.”

2 Although the opinion used the phrase “contact information,” the trial court’s statement of the issue, the record, and the parties’ briefing all reflect that the only information in dispute before us is the victim’s home address. 9 Even so, the judge also recognized that a criminal defendant’s

constitutional rights to confront his accuser, to compulsory process, to prepare

a defense, and to the effective assistance of counsel “encompass access to a

witness during the investigatory phase of a case,” relying on State v. Blazas,

432 N.J. Super. 326, 339 (App. Div. 2013). That recognition led the judge to

authorize the victim’s address to be divulged, but only to defendant’s attorney

and investigators, and to prohibit them from disclosing the address to their

client.

The judge reasoned that although partial release of the victim’s address

to the defense team “may not entirely relieve her subjective fears,” defendant

was incarcerated, defense investigators are trained to identify themselves, and

the defense team had represented that it would not coerce or intimidate the

victim. He added that when the defense team contacts her, the victim can still

decline to speak with them. Thus, the judge concluded that the release of the

victim’s address to only defense counsel and defense investigators struck a

proper balance between defendant’s constitutional rights to contact a witness

and the victim’s “physical safety.”

Notably, the judge’s written decision did not discuss the statutory or

constitutional rights of sexual assault victims, beyond citing the Court’s

recognition in State v. R.W., 104 N.J. 14, 28 (1986), that there is a “heightened

10 need to protect victims from trauma and intimidation in sexual assault cases.”

More specifically, the judge did not cite to the Victim’s Rights Amendment

(VRA), N.J. Const. art. I, ¶ 22; the Crime Victim’s Bill of Rights (CVBR),

N.J.S.A. 52:4B-34 to -38; or the Sexual Assault Victim’s Bill of Rights

(SAVBR), N.J.S.A. 52:4B-60.2, provisions which we will discuss below.

The prosecutor requested that the trial court stay its order pending an

interlocutory appeal, which the court denied. The Appellate Division then

granted the prosecutor leave to appeal the portion of the protective order that

required disclosure of the address to the defense team and issued a

corresponding stay.

C.

The Appellate Division reversed the trial court in a published decision.

See State v. Ramirez, 467 N.J. Super. 359 (App. Div. 2021). The Appellate

Division held that the prosecutor’s motion should have been granted in full,

keeping the victim’s address totally confidential from both defendant

individually and the defense team. Id. at 363. The appellate court reasoned

that because the trial court failed to adequately consider sexual assault victims’

rights under the VRA and the victim-related statutes, the trial court’s partial

denial of the protective order amounted to an abuse of discretion, warranting

reversal. Id. at 363, 369.

11 Among other things, the Appellate Division noted that “[o]ur Supreme

Court has long recognized that ‘criminal discovery has its limits . . . [and

courts must prevent] the chilling and inhibiting effect that discovery can have

on material witnesses who are subjected to intimidation, harassment, or

embarrassment.’” Id. at 368 (omission and second alteration in original)

(quoting State v. D.R.H., 127 N.J. 249, 256 (1992)). Based on its

interpretation of the SAVBR, the Appellate Division held that the motion

judge and defendant “mistakenly create[d] an irreconcilable conflict” between

a defendant’s right to confront an accuser and a victim’s right to choose

whether to participate in an assault investigation under the SAVBR. Id. at

366-67. The appellate court stated that the trial court’s “untenable

‘compromise’ protective order . . . left the victim unprotected and exposed to

the very trauma she desperately sought to avoid.” Id. at 367.

The Appellate Division expressly linked the defense’s desire for the

victim’s residential address to an anticipated effort to contact her at her home

and persuade her to take part in an interview. As the court explained:

Defendant’s right to access the physical evidence the State has in its possession related to this case remains inviolate. However, to permit defense investigators to access the victim’s home, against her expressed instructions, would directly violate the Constitutional protections of the CVBR, the public policy established by the Supreme Court in D.R.H., 127 N.J. at 256, and

12 the protection codified by the Legislature in [the SAVBR,] N.J.S.A. 52:4B-60.2(c)(7). In sharp contrast to State v. Scoles, 214 N.J. 236 (2013), in which, over the State’s objections, the Court established a carefully drafted protocol to permit the defense team access to highly sensitive evidence, this case involves only honoring and preserving the privacy of a sexual assault victim. Neither defense counsel nor any person associated with the defense team has the right to violate a crime victim’s right to privacy.

[Id. at 369 (emphases added).]

Defendant moved for leave to appeal, which we granted, although we

denied his motion to stay the Appellate Division’s judgment. 248 N.J. 252

(2021). We also granted motions to appear as amici curiae by the Attorney

General, the Association of Criminal Defense Lawyers of New Jersey (ACDL),

and the American Civil Liberties Union of New Jersey (ACLU).

II.

Defendant, the ACDL, and the ACLU all argue that the Appellate

Division’s opinion unfairly curtails an accused’s constitutionally protected

ability to develop an effective defense of the case. They urge the

reinstatement of the trial court’s decision allowing the release of the victim’s

address to the defense team (but not to defendant himself). They argue the

ruling is a sound compromise and not an abuse of the trial court’s discretion

over criminal discovery matters.

13 These advocates maintain the Appellate Division’s prohibition on

disclosure is overbroad and excessively protective of the victim’s interests to

the detriment of defendant’s constitutional rights. They assert the Appellate

Division unfairly assumed that defense attorneys or investigators are prone to

act unprofessionally by harassing victims at their addresses and failing to

honor victims’ right to decline to participate in interviews or investigations.

Defendant and the ACLU further criticize the hearsay nature of the

prosecutor’s motion certification, contending it is insufficient to establish the

victim’s personal reasons for opposing disclosure and to substantiate “good

cause” for relief under Rule 3:13-3(e).3

The prosecutor and the Attorney General, meanwhile, urge that we

affirm the Appellate Division’s opinion. They argue the appellate court’s

decision appropriately enforces the right of a sexual assault victim to decline

to be interviewed by the defense or otherwise participate in an investigation.

3 The ACLU’s amicus brief advances a new argument that was not raised in either the trial court or the Appellate Division. The ACLU contends that a victim’s home address can be “essential” to the criminal defense team as an investigative tool, independent of a desire to interview the victim. Specifically, the ACLU asserts that witnesses’ home addresses are commonly used for searching public information databases and social media sites; conducting background checks; identifying aliases; pulling Motor Vehicle Commission records, criminal history records, and credit history records; discovering legal and financial conflicts; and uncovering relationships to others in the case. After receiving the ACLU’s amicus brief, defendant adopted this new argument in a supplemental brief. 14 They stress the post-event mental anguish and fear that is commonly

experienced by victims of violent crimes, especially persons who have been

sexually assaulted.

The prosecutor and the Attorney General maintain the defense can

conduct a sufficient pretrial investigation and mount a vigorous defense

without depending on the prosecution to disclose the victim’s home address.

As a procedural matter, they contend the prosecutor’s motion certification in

this case complied with Rule 3:13-3(e)(2), which requires good cause to be

shown only “in the form of a written statement,” and which does not require

that statement to be sworn or attested to directly by a victim. They further

argue that such “good cause” is manifest in this case. In this regard, they

underscore the brutal nature of this sexual assault, defendant’s threats to kill

the victim if she sought help, his claim to the police that he had previously

committed murders, his criminal record, and the victim’s decision to move to a

new address after the attack.

III.

We begin our analysis with an examination of Rule 3:13-3, the court rule

that governs the prosecution’s general discovery obligations and the contested

motion for a protective order in this case.

15 As codified in Rule 3:13-3, New Jersey has a tradition of what is often

described as an “open file” model of reciprocal pretrial criminal discovery.

“Our courts do not countenance trial by surprise.” State in Int. of A.B., 219

N.J. 542, 555 (2014). “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.” Scoles, 214 N.J. at 252. Thus, criminal defendants

are “‘entitled to broad discovery’” because it “advances the quest for truth.”

Ibid. (quoting D.R.H., 127 N.J. at 256).

Under Rule 3:13-3(a) and (b)(1), “[o]nce an indictment has issued, a

defendant has a right to automatic and broad discovery of the evidence the

State has gathered in support of its charges.” Ibid. (citing R. 3:13-3); see also

A.B., 219 N.J. at 555 (calling R. 3:13-3(b) the “automatic discovery

provision”).

The automatic discovery model is “intended to speed up the discovery

process.” Pressler & Verniero, Current N.J. Court Rules, cmt. 3.1 on R. 3:13-3

(2022). “The onus is on the State” to make the discovery available to the

defendant. Scoles, 214 N.J. at 253. Reciprocally, under Rule 3:13-3(b)(2),

defense counsel must supply the prosecution with similarly broad categories of

items.

16 Rule 3:13-3(b)(1)(F) specifically imposes upon the prosecutor an

obligation to provide a defendant post-indictment with a witness’s address:

Discovery shall include exculpatory information or material. It shall also include, but is not limited to, the following relevant material:

...

(F) names, addresses, and birthdates of any persons whom the prosecutor knows to have relevant evidence or information including a designation by the prosecutor as to which of those persons may be called as witnesses.

[R. 3:13-3(b)(1)(F) (emphases added).]

Nevertheless, despite a criminal defendant’s general and automatic right

to “broad discovery,” including witnesses’ addresses under Rule 3:13-

3(b)(1)(F), this Court also has long held that “criminal discovery has its

limits.” See D.R.H., 127 N.J. at 256. Defendants are not permitted to conduct

a “fishing expedition,” R.W., 104 N.J. at 28, or “transform the discovery

process into an unfocused, haphazard search for evidence,” D.R.H., 127 N.J. at

256. Hence, information must be shown to be relevant to the issues in the case

in order to be subject to disclosure. R. 3:13-3(b)(1); see State v. Desir, 245

N.J. 179, 193 (2021).

Another important limit on a defendant’s right to discovery is “the

chilling and inhibiting effect that discovery can have on material witnesses

17 who are subject to intimidation, harassment, or embarrassment.” D.R.H., 127

N.J. at 256. For instance, in D.R.H., this Court held that criminal defendants

do not have an unconditional discovery right to a physical examination of a

child sex-abuse victim absent compelling or substantial need, because the

examination may have harmful consequences for the child, including invasion

of privacy, emotional trauma, and mental distress. Id. at 258-59. Similarly, in

R.W., this Court held that the invasion of a child victim’s privacy outweighed

the defendant’s evidentiary need for a psychiatric examination. 104 N.J. at 28.

More recently, we have admonished that “[c]ourts 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.”

A.B., 219 N.J. at 557-58.

Rule 3:13-3(e), the key subsection of the rule involved in this case,

details how the prosecution may obtain a protective order from the court,

allowing it to withhold from the defense certain discovery that otherwise

would be mandated. Subsection (e)(1) of the rule identifies the grounds for

such protective relief:

Grounds. Upon motion and for good cause shown the court may at any time order that the discovery sought pursuant to this rule be denied, restricted, or deferred or make such other order as is appropriate. In determining the motion, the court may consider the following: protection of witnesses and others from 18 physical harm, threats of harm, bribes, economic reprisals and other intimidation; maintenance of such secrecy regarding informants as is required for effective investigation of criminal activity; confidential information recognized by law, including protection of confidential relationships and privileges; or any other relevant considerations.

[R. 3:13-3(e)(1) (emphases added).]

Subsection (e)(2) of the rule then spells out procedures that a trial court

may follow concerning such motions for a protective order:

Procedure. The court may permit the showing of good cause to be made, in whole or in part, in the form of a written statement to be inspected by the court alone, and if the court thereafter enters a protective order, the entire text of the statement shall be sealed and preserved in the records of the court, to be made available only to the appellate court in the event of an appeal.

[R. 3:13-3(e)(2) (emphases added).]

A trial court considers “the totality of the circumstances” in determining

whether good cause exists to grant the motion. See State v. Buhl, 269 N.J.

Super. 344, 356 (App. Div. 1994) (quotation omitted). One factor the court

may consider when evaluating good cause is the “protection of witnesses and

others from physical harm [and] threats of harm.” R. 3:13-3(e)(1); see also

State in Int. of N.H., 226 N.J. 242, 256 (2016) (explaining that the State may

apply for a protective order to withhold materials that “would expose

19 witnesses and others to harm”). Another factor the court may consider is

“confidential information recognized by law.” R. 3:13-3(e)(1).

As with other discovery matters, the scope of appellate review of

protective order rulings is deferential. “[A]ppellate courts ‘generally defer to a

trial court’s disposition of discovery matters unless the court has abused its

discretion or its determination is based on a mistaken understanding of the

applicable law.’” State v. Brown, 236 N.J. 497, 521 (2019) (quoting

Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011)

(quoting Rivers v. LSC P’Ship, 378 N.J. Super. 68, 80 (App. Div. 2005))); see

also A.B., 219 N.J. at 554 (similarly applying an abuse of discretion review

standard).

A trial court can abuse its discretion “by failing to consider all relevant

factors.” State v. S.N., 231 N.J. 497, 500 (2018). Our appellate courts will set

aside or modify such decisions if they do not comport with the applicable law

or do not give sufficient regard to pertinent considerations. See, e.g., D.R.H.,

127 N.J. at 257-59 (holding the trial court “clearly erred” in its discovery order

compelling, over the State’s objection, the physical examination of a child sex-

abuse victim, because the court applied an incorrect legal standard treating

physical exams as a lesser invasion of privacy than a psychiatric exam); see

also Desir, 245 N.J. at 203-09 (affirming in part and reversing in part a trial

20 court’s exercise of discretion in denying a defendant’s motion to compel

discovery of confidential information, based on legal principles announced in

the Court’s opinion that balanced the competing interests).

Here, the discovery rules must be considered in tandem with legislation

devoted to the protection of crime victims. As we have already noted, the

present appeal centrally involves several enactments that afford enhanced

protections to sexual assault victims and other crime victims in New Jersey.

Those laws reflect forceful public policies adopted by the voters and the

Legislature to safeguard victims from physical and emotional harm.

“Beginning with the passage of the Criminal Injuries Compensation Act

of 1971 (N.J.S.A. 52:4B-1 to -33), the people of New Jersey, speaking through

the Legislature, have repeatedly expressed a very strong ‘public attitude’ that

victims should be provided with more rights.” State v. Muhammad, 145 N.J.

23, 43 (1996). Since 1971, the Legislature has enacted statutes to expand the

protection and participation of crime victims in the criminal justice system.

See id. at 33-35 (explaining legislation from 1971 to 1991 to increase victims’

participation and rights). Those “developments reveal a steady movement [in

New Jersey] law to recognize and enhance the rights of crime victims.” State

v. Tedesco, 214 N.J. 177, 196 (2013).

21 Most recently, and especially relevant to this case, the Legislature in

2019 unanimously passed the Sexual Assault Victim’s Bill of Rights

(SAVBR), N.J.S.A. 52:4B-60.2. Sections (a) and (b) of the SAVBR announce

why the statute was enacted, and section (c) sets forth the codified rights of

sexual assault victims:

The Legislature finds and declares that:

a. The enactment of the “Crime Victim’s Bill of Rights,” L. 1985, c. 249 ([N.J.S.A.] 52:4B-34 et seq.) and the “New Jersey Campus Sexual Assault Victim’s Bill of Rights Act,” L. 1994, c. 160 ([N.J.S.A.] 18A:61E-1 et seq.) have resulted in significant advances in the recognition and protection of the rights of crime victims and survivors once they enter the criminal justice system;

b. Nonetheless, victims of sexual violence in particular often face circumstances where they may be blamed for the crime, assumed to be fabricating the crime, or taken less seriously than their injuries warrant. These victims are sometimes discouraged from proceeding with their complaints and as a result may not be afforded the protections and rights in the criminal justice system to which they are entitled;

c. Therefore, with no diminution of the legislatively-recognized rights of crime victims, it is the public policy of this State that the criminal justice system accord victims of sexual violence the following rights:

22 ...

(7) To choose whether to participate in any investigation of the assault; [and]

(9) To information and assistance in accessing specialized mental health services; protection from further violence; other appropriate community or governmental services, including services provided by the Victims of Crime Compensation Office; and all other assistance available to crime victims under current law . . . .

[N.J.S.A. 52:4B-60.2 (emphases added).]

Although the SAVBR makes clear that sexual assault victims have the

right to “choose whether to participate” in “any investigation” and the right to

“protection from further violence,” it does not define those rights. N.J.S.A.

52:4B-60.2(c)(7), (9). The legislative history does not illuminate what the

sponsors or the committee members intended by including those phrases. Nor

does any published opinion other than the Appellate Division opinion we are

presently reviewing.

The adoption of the SAVBR followed an extensive series of enactments

in New Jersey focused on protecting the rights of crime victims. In 1985, the

23 Legislature enacted the Crime Victim’s Bill of Rights (CVBR), N.J.S.A.

52:4B-36. That statute provides in relevant part:

The Legislature finds and declares that crime victims and witnesses are entitled to the following rights:

a. To be treated with dignity and compassion by the criminal justice system;

c. To be free from intimidation, harassment or abuse by any person including the defendant or any other person acting in support of or on behalf of the defendant, due to the involvement of the victim or witness in the criminal justice process;

d. To have inconveniences associated with participation in the criminal justice process minimized to the fullest extent possible . . . .

[N.J.S.A. 52:4B-36 (emphases added).]

Since its initial passage in 1985, the CVBR has been modified several

times. See Tedesco, 214 N.J. at 195-96 (describing the modifications). Most

notably, in 2012, the Legislature passed “Alex DeCroce’s Law” to update

subsection (c) and make other changes. See L. 2012, c. 27. Before 2012,

subsection (c) provided only that victims had the right to be free from

“intimidation.” S. Budget & Appropriations Comm. Statement to A. 2380 1

(June 18, 2012). The 2012 amendment “expand[ed] and clarifie[d] that right,

24 to provide that victims have the right to be free from intimidation, harassment

and abuse by any person, including the defendant or any other person acting in

support of or on behalf of the defendant.” Ibid. (emphasis added).

Furthermore, crime victims in this State gained constitutional protection

in 1991 with the ratification and adoption of the Victims’ Rights Amendment

(VRA), N.J. Const. art. I, ¶ 22. The VRA reads, in full:

A victim of a crime shall be treated with fairness, compassion and respect by the criminal justice system. A victim of a crime shall not be denied the right to be present at public judicial proceedings except when, prior to completing testimony as a witness, the victim is properly sequestered in accordance with law or the Rules Governing the Courts of the State of New Jersey. A victim of a crime shall be entitled to those rights and remedies as may be provided by the Legislature. For the purposes of this paragraph, “victim of a crime” means: a) a person who has suffered physical or psychological injury or has incurred loss or damage to personal or real property as a result of a crime or an incident involving another person operating a motor vehicle while under the influence of drugs or alcohol, and b) the spouse, parent, legal guardian, grandparent, child or sibling of the decedent in the case of a criminal homicide.

[N.J. Const. art. I, ¶ 22 (emphases added).]

The VRA does not set forth all the rights of crime victims. Rather, “it

vest[s] in the Legislature the authority to specify those rights that will be

afforded to victims.” State v. Blackmon, 202 N.J. 283, 298-99 (2010).

25 Pursuant to that delegated authority under the VRA, the Legislature has

repeatedly adopted statutory rights specific to sexual assault victims in

addition to the SAVBR. See, e.g., N.J.S.A. 18A:61E-2 (Campus Sexual

Assault Victim’s Bill of Rights); N.J.S.A. 2C:25-17 to -35 (Prevention of

Domestic Violence Act); N.J.S.A. 2C:7-1 to -19 (Megan’s Law); N.J.S.A.

2C:14-7 (Rape Shield Law); N.J.S.A. 2C:14-13 to -21 (Sexual Assault

Survivor Protection Act). Further, our court rules ensure that the “[n]ames and

addresses of victims or alleged victims of . . . sexual offenses” are “excluded

from public access” ordinarily available for records of criminal and municipal

court proceedings. R. 1:38-3(c)(12) (emphasis added).

In that same vein, N.J.S.A. 2A:82-46 prevents disclosure of certain

information about child victims. That law states that, “[i]n prosecutions for

. . . sexual assault . . . , the name, address, and identity of a victim who was

under the age of 18 at the time of the alleged commission of an offense shall

not appear on the indictment, complaint, or any other public record.” N.J.S.A.

2A:82-46(a) (emphases added). The statute gives the trial court discretion to

“impos[e] further restrictions with regard to disclosure of the name, address,

and identity of the victim when it deems it necessary to prevent trauma or

stigma to the victim.” N.J.S.A. 2A:82-46(d) (emphases added).

26 Additionally, since 2007, Nicole’s Law, N.J.S.A. 2C:14-12, has ensured

that when a defendant charged with a sexual offense is released from custody

before trial, “[t]he victim’s location shall remain confidential and shall not

appear on any documents or records to which the defendant has access.” Id. at

-12(c) (emphasis added). The statute does not mention defense counsel.

In one more example, the Sexual Assault Survivor Protection Act

(SASPA), passed in 2015, is a non-penal statute that allows victims of

nonconsensual sexual contact to seek a civil protective order regardless of

whether criminal charges have been filed against the alleged perpetrator.

N.J.S.A. 2C:14-13 to -21. SASPA provides that when a victim seeks a

temporary protective order under that statute, “[t]he court shall waive any

requirement that the applicant’s or alleged victim’s place of residence appear

on the application.” N.J.S.A. 2C:14-14(d) (emphases added). SASPA further

states that when a victim seeks a final protective order under the statute, the

court may issue

an order prohibiting the respondent from having any contact with the victim or others, including an order forbidding the respondent from personally or through an agent initiating any communication likely to cause annoyance or alarm including, but not limited to, personal, written, or telephone contact, or contact via electronic device.

[N.J.S.A. 2C:14-16(f)(2) (emphases added).]

27 All of those enactments, read in tandem with the SAVBR, reflect a

robust codified public policy to protect sexual assault victims in this State

from undue incursions upon their rights of privacy and solitude. The

Legislature manifestly recognizes that such victims can re-experience trauma

each time they discuss the violent incident.

Weighing against those important rights of a victim are the

countervailing rights of a person accused of a criminal offense. These are

rights and interests protected expressly or impliedly by the federal and New

Jersey Constitutions, and decades of jurisprudence. Conceptually, they

encompass the rights (1) to the effective assistance of counsel in defending the

case, (2) to confront the prosecution’s witnesses at trial and to have the

compulsory process of exculpatory witnesses, and (3) to due process.

1.

Both the Sixth Amendment to the United States Constitution and Article

I, Paragraph 10 of the New Jersey Constitution guarantee a criminal defendant

the right “to have the assistance of counsel for his defense.” That right is

essential to a fair trial. See Gideon v. Wainwright, 372 U.S. 335, 342 (1963)

(holding that the federal right to assistance of counsel “is made obligatory

28 upon the States by the Fourteenth Amendment” because it is “fundamental and

essential to a fair trial” (quotation omitted)).

“The right to the effective assistance of counsel in a criminal proceeding

includes the right to conduct a reasonable investigation to prepare a defense.”

A.B., 219 N.J. at 547. Under a defense counsel’s duty to investigate, as

delineated by the American Bar Association, “[d]efense counsel or counsel’s

agents should seek to interview all witnesses, including seeking to interview

the victim or victims, and should not act to intimidate or unduly influence any

witness.” Am. Bar Ass’n, Criminal Justice Standards for the Defense Function

4-4.3 (4th ed. 2017).

That said, a defendant’s right to effective assistance of counsel and

pretrial investigation is not absolute. For example, this Court acknowledged in

A.B. that the right to have defense counsel visit and investigate a crime scene

is limited by the victim’s privacy rights when the crime scene is the victim’s

home. 219 N.J. at 547 (“The right of the accused to a fair trial, and the right of

a purported victim and her family to privacy must be balanced.”).

2.

Apart from the right to effective counsel, the Sixth Amendment to the

United States Constitution and Article I, Paragraph 10 of the New Jersey

Constitution further guarantee a criminal defendant the right “to have

29 compulsory process for obtaining witnesses in his favor.” The compulsory

process right permits a defendant to call and examine witnesses as part of the

defense. State v. Budis, 125 N.J. 519, 531 (1991).

Those same federal and state constitutional provisions also guarantee a

criminal defendant the right “to be confronted with the witnesses against him.”

U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. “The right of confrontation is

an essential attribute of the right to a fair trial . . . .” State v. Branch, 182 N.J.

338, 348 (2005); accord Pointer v. Texas, 380 U.S. 400, 403 (1965) (holding

that the federal right to confront witnesses is “made obligatory on the States by

the Fourteenth Amendment” because it is a “fundamental right” that is

“essential to a fair trial”) (quotation omitted).

“The central concern of the Confrontation Clause is to ensure the

reliability of the evidence against a criminal defendant by subjecting it to

rigorous testing in the context of an adversary proceeding before the trier of

fact.” State v. Castagna, 187 N.J. 293, 309 (2006) (quoting Maryland v. Craig,

497 U.S. 836, 845 (1990)). The four key elements of the right of confrontation

are “physical presence, oath, cross-examination, and observation of demeanor

by the trier of fact.” Craig, 497 U.S. at 846; State v. Smith, 158 N.J. 376, 385

(1999).

30 Nearly a century ago, the Supreme Court of the United States recognized

that asking a witness during cross-examination where that witness lives is

important, so “that the witness may be identified with his community”;

“independent testimony may be sought and offered of his reputation for

veracity in his own neighborhood”; and “the jury may interpret his testimony

in the light reflected upon it by knowledge of his environment.” Alford v.

United States, 282 U.S. 687, 691 (1931); see also N.J.R.E. 608 (permitting

impeachment of credibility through opinion or reputation evidence relating to

the witness’s character for truthfulness). In this regard, the Supreme Court has

observed that asking witnesses their names and addresses during cross-

examination can be pivotal for determining their credibility:

[W]hen the credibility of a witness is in issue, the very starting point in “exposing falsehood and bringing out the truth” through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness’ name and address open countless avenues of in-court examination and out-of-court investigation.

[Smith v. Illinois, 390 U.S. 129, 131 (1968) (emphases added).]

The rights to confrontation and compulsory process “have been aptly

characterized as ‘opposite sides of the same coin’ because each confers the

same fundamental right to elicit testimony favorable to the defense before the

trier of fact.” State v. Garron, 177 N.J. 147, 169 (2003).

31 A defendant’s rights to confrontation and compulsory process are not

absolute. “[T]he Confrontation Clause guarantees an opportunity for effective

cross-examination, not cross-examination that is effective in whatever way,

and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474

U.S. 15, 20 (1985); see also United States v. Owens, 484 U.S. 554, 560 (1988)

(“[S]uccessful cross-examination is not the constitutional guarantee.”). The

right to confrontation and compulsory process “‘may, in appropriate cases,

bow to accommodate other legitimate interests in the criminal trial process,’

such as established rules of evidence and procedure designed to ensure the

fairness and reliability of criminal trials.” Garron, 177 N.J. at 169 (quoting

Chambers v. Mississippi, 440 U.S. 284, 294 (1973)).

In general, trial judges “retain wide latitude . . . to impose reasonable

limits on . . . cross-examination based on concerns about, among other things,

harassment, . . . [or] the witness’ safety.” Budis, 125 N.J. at 532 (first two

omissions in original) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679

(1986)). For example, the Supreme Court in Alford recognized that trial

judges have discretion to limit cross-examination if it invades the witness’s

constitutional rights or merely seeks to harass, annoy, or humiliate the witness.

282 U.S. at 694. Limits may also be appropriate if asking for a witness’s

address “tend[s] to endanger the personal safety of the witness.” Smith, 390

32 U.S. at 133-34 (White, J., concurring); accord McGrath v. Vinzant, 528 F.2d

681, 683-85 (1st Cir. 1976); United States v. Alston, 460 F.2d 48, 52 (5th Cir.

1972); United States v. Saletko, 452 F.2d 193, 195-96 (7th Cir. 1971).

Recognizing such limits, the Appellate Division has held that when a

cooperating witness’s safety is threatened, “the interests of the State and

defendants can both be accommodated short of ordering disclosure of [the

witness’s] current name and address in open court.” State v. Postorino, 253

N.J. Super. 98, 108 (App. Div. 1991). Although the appellate court in

Postorino deferred to the trial judge’s discretion, it recommended that the trial

court conduct an in camera proceeding to determine whether the defendants

had enough background information on the witness to effectively cross-

examine and impeach him without his name and address. Ibid. The court

directed that if the name and address were necessary, they should be disclosed

to only defense counsel and defense investigators pursuant to a protective

order. Id. at 108-09.

3.

The Fourteenth Amendment’s Due Process Clause declares that no state

shall “deprive any person of life, liberty, or property, without due process of

law.” U.S. Const. amend. XIV, § 1. In construing that right, this Court has

observed that “allowing a defendant to forage for evidence without a

33 reasonable basis is not an ingredient of either due process or fundamental

fairness.” R.W., 104 N.J. at 28. However, in assuring due process, “mere

access to the courthouse doors” is not sufficient. Ake v. Oklahoma, 470 U.S.

68, 77 (1985). For example, due process generally requires the State “to turn

over evidence in its possession that is both favorable to the accused and

material to guilt or punishment.” Pennsylvania v. Ritchie, 480 U.S. 39, 57

(1987); see also Brady v. Maryland, 373 U.S. 83, 87 (1963) (prohibiting a

prosecutor from concealing such evidence when it is requested).

The Appellate Division has observed that the Due Process Clause gives

defendants the right of “access to adverse witnesses during the investigation

phase of the defense.” Blazas, 432 N.J. Super. at 340. Even so, because a

witness has the “absolute and personal right to either grant or deny” a pretrial

interview, id. at 346 (quoting State v. Boiardo, 172 N.J. Super. 528, 532 (Law

Div. 1980)), “the protected [due process] right is the opportunity for pretrial

access; it is not a guarantee of pretrial access,” id. at 343.

As the Appellate Division stressed in Blazas, a witness’s decision must

be a personal one; any prosecutorial “interference with a witness’s decision to

grant or deny an interview to the defense . . . deprives a defendant of his right

to present a complete defense.” Ibid. That is because “witnesses . . . to a

crime are the property of neither the prosecution nor the defense.” State v.

34 Martinez, 461 N.J. Super. 249, 279 (App. Div. 2019) (quoting Gregory v.

United States, 369 F.2d 185, 188 (D.C. Cir. 1966)). “Both sides have an equal

[due process] right, and should have an equal opportunity, to interview them.”

Ibid. (emphasis omitted) (quoting Gregory, 369 F.2d at 188).

IV.

We distill from the foregoing authorities several guiding principles for

addressing situations such as the present case, in which sexual assault victims

express a desire not to be interviewed and to not have their residential address

disclosed to a defendant or defendant’s counsel.

• Under the Sexual Assault Victim’s Bill of Rights, the Legislature

has singled out victims of sexual assault as deserving heightened protections,

including the specific right to “choose whether to participate in any

investigation of the assault.” N.J.S.A. 52:4B-60.2.

• Under the Crime Victim’s Bill of Rights, the victim has the right

to be protected from “intimidation, harassment or abuse” by the defendant or

anyone acting on the defendant’s behalf. N.J.S.A. 52:4B-36(c).

• Under the Victims’ Rights Amendment, the victim has a

constitutional right to be “treated with fairness, compassion and respect.” N.J.

Const. art I, ¶ 22.

35 • A court evaluating a prosecutor’s motion under Rule 3:13-3(e) for

a protective order seeking to withhold a sexual assault victim’s address must

weigh those formidable interests against the criminal defendant’s own

constitutionally based interests.

• As was rightly noted in Blazas, the decision to participate in or

decline an interview with the defense team must be made by the victim-

witness. 432 N.J. Super. at 343. It should not be dictated by the prosecutor or

coaxed by the prosecutor or the defense.

With those principles in mind, we hold that, going forward, the

following procedures and considerations apply when a prosecutor seeks to

withhold from discovery a sexual assault victim’s address. 4 We offer this

framework in an effort to balance the opposing constitutional and statutory

interests at stake, and to provide greater content to our pertinent court rules.

4 This Court often has delineated procedures and considerations to guide the bench and bar in future cases, beyond simply resolving the fact-based outcome of an individual appeal. We have particularly done so in criminal law opinions, consistent with the Court’s supervisory role in the administration of criminal justice and its role as a guardian of constitutional rights. See, e.g., State v. Carrion, 249 N.J. 253, 273 (2021) (prospectively adopting notice-and- demand procedures for the presentation of a State witness to testify about the search of a firearms database); State v. Henderson, 208 N.J. 208, 288-91 (2011) (prescribing multiple non-codified factors and procedures to guide eyewitness identification testimony); State v. Slater, 198 N.J. 145, 157-62 (2009) (prescribing four factors to guide the permissible withdrawal of guilty pleas).

36 See, e.g., Scoles, 214 N.J. at 260-62 (setting forth a stringent discovery

protocol for requests by defendants under Rule 3:13-3 for access to images in

child pornography cases).

In order to withhold the sexual assault victim’s address, the prosecution

must move for a protective order under Rule 3:13-3(e). The motion must be

supported by a sworn statement 5 from the victim attesting the victim does not

want the address disclosed to the defendant or defense counsel. No further

elaboration is necessary to initiate the motion process.6

If such a motion is filed, the defense may file a response with the court

expressing reasons why a protective order should be denied and, in particular,

why the defense needs the victim’s address. The trial court may permit a reply

by the prosecutor. The court shall then proceed to consider the matter, either

on the papers or with oral argument if requested by counsel or directed by the

court.

5 We recognize that Rule 3:13-3(e)(2), as written, does not require the statement to be based on personal knowledge or sworn, but we add these requirements in furtherance of the principles we have noted above to accommodate a criminal defendant’s rights. See also R. 1:6-6 (generally requiring “facts not appearing of record or not judicially noticeable” to be supplied “on affidavits made on personal knowledge”); N.J.R.E. 602 (requiring that non-expert witnesses possess personal knowledge). Simply put, the prosecutor can’t speak for the victim. 6 For sensitive materials, the court has discretion to inspect the victim’s submission and seal it. See R. 3:13-3(e)(2). 37 If the defense asserts it wants the address, among other things, for the

purpose of contacting and interviewing the victim, the court shall then consider

various “supervised pathway” options. These options are designed to assure

that the victim’s decision is personal and also that the victim has been made

aware of the defense’s reasons for wanting the address and to make contact.

The supervised pathway options include, but are not limited to:

(1) Written Defense Request. Allowing the defense to submit to the

court a written request seeking the victim’s assent to an interview, which the

court may permit to be conveyed to the victim through the prosecutor or

through court staff. The written request may be in the form of a letter or other

document;

(2) In Camera Interview. The judge conducting an in camera recorded

video or telephone interview with the victim to verify that the victim has been

furnished with the defense’s request and to determine whether the victim still

desires to refrain from an interview and have the address kept confidential;

(3) Limited Telephone or Video Call. With advance notice to the victim,

allowing the defense to speak with the victim, with or without the prosecutor

present in the court’s discretion, by telephone or by remote video. This call

would be strictly for the limited purpose of elaborating why the defense wishes

to conduct an interview;

38 (4) Further Court-Devised Options. Devising other options that fairly

balance the victim’s rights to refrain from participation against the defendant’s

rights to prepare a defense of the case.

After implementing one or more of those options, the court shall rule on

whether good cause for a protective order has been shown under Rule 3:13-

3(e)(1), and, if so, what court-imposed restrictions or conditions shall be

observed.

In fashioning a protective order under these procedures, the trial court

shall accord heavy weight to the sexual assault victim’s interests in having

solitude and privacy at that victim’s residence in the wake of a highly

traumatic experience. The home can be a place of refuge for a victim.

Our jurisprudence has long respected the heightened protections of

privacy and solitude in one’s dwelling. See, e.g., State v. Legette, 227 N.J.

460, 472 (2017) (noting the “special status” of one’s home and the right to be

free from warrantless searches and seizures) (quoting State v. Johnson, 193

N.J. 528, 553-54 (2008)); Murray v. Lawson, 138 N.J. 206, 225 (1994)

(restricting the constitutionally allowable distance of picketers from a private

residence, and noting the well-settled public policy and significant

governmental interest “favoring protection of residential privacy”). Those

principles safeguarding one’s privacy in a dwelling are consistent with the

39 various provisions noted above that shield a victim’s address or location. See

N.J.S.A. 2A:82-46(a); N.J.S.A. 2C:14-12(c); N.J.S.A. 2C:14-13 to -21.

Accordingly, there shall be a presumption that, if the defense is allowed

by the court to obtain the address to enable contact with the victim, its

investigators shall not appear at the victim’s residence without the victim’s

advance consent and court approval. This “home-is-off-limits” presumption

can be overcome only if the defense demonstrates to the court an exceptional

and compelling need to permit such contact.

In the rare instance in which the court finds the presumption is

overcome, it shall specify within the protective order reasonable limitations on

the time, place, and manner of such at-home contact by the defense team. The

defense may not harass the victim. See, e.g., N.J.S.A. 52:4B-36(c). And the

victim always retains the right under N.J.S.A. 52:4B-60.2(c)(7) to decline to

participate in an investigatory defense interview at any time.7

In prescribing this framework, we do not presume that prosecutors,

defense attorneys, or their respective investigators and staff will act

unprofessionally. These are prophylactic measures designed to protect the

7 We decline to address what restrictions may pertain when the defense obtains the victim’s address through other means. Our holding is limited to the prosecution’s request for a protective order to withhold the address in pretrial discovery. 40 vital interests of sexual assault victims while simultaneously respecting a

criminal defendant’s constitutional rights. They are intended to prevent

troublesome conduct before it may occur.

Having set forth the framework, we end with a disposition of the present

appeal. We conclude this matter must be remanded to the trial court for

further proceedings. Neither the ruling of the trial court nor that of the

Appellate Division sufficiently addresses the competing interests we have

explored in this opinion.

The trial court’s ruling does not explicitly discuss a sexual assault

victim’s codified rights under the VRA, CVBR, or SAVBR. It could be more

attentive to the psychological, non-physical trauma experienced by such

victims. Also, the trial court does not impose any reasonable conditions on

defense counsel’s access to the victim at her residence. On the other hand, the

appellate ruling does not allow for any process, as we have outlined here, to

verify the victim’s actual informed refusal to be interviewed by the defense

team or to divulge her address. Both decisions -- issued without this Court’s

guidance -- are incomplete in those respects. A more fulsome balancing of the

competing interests is warranted.

41 As noted above, we agree with defendant’s concerns about the hearsay

nature of the prosecutor’s certification about D.C.’s desire to be left alone.

However, we are mindful that the “statement” element of Rule 3:13-3(e) has

not been construed until today to require a non-hearsay attestation from a

sexual assault victim. In all fairness, the prosecution should have leave to

renew its motion with support complying with our opinion. We remand this

case to enable that process.

If a proper motion is filed by the State, then the trial court shall carry out

the steps we have described above. Also on remand, the defense may present

argument to the motion judge, which it had not previously made, concerning

the alleged utility of a victim’s address for investigative purposes other than

pursuing an interview, along the lines, for example, of the points raised by the

ACLU. We express no views about the facts of this particular case or how the

trial court should rule on remand.

VI.

For the reasons set forth above, we vacate the judgment of the Appellate

Division and remand for further proceedings consistent with this opinion.

CHIEF JUSTICE RABNER; JUSTICES PATTERSON, SOLOMON, PIERRE-LOUIS, and FASCIALE; and JUDGE FISHER (temporarily assigned) join in JUDGE SABATINO’s opinion.