State v. Terrell M. Chambers
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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. Terrell M. Chambers (A-35-21) (086317)
Argued October 12, 2022 -- Decided January 23, 2023
FASCIALE, J., writing for the Court.
In this case, the Court establishes the procedural and analytical framework applicable to a defendant’s good-faith discovery request for pre-incident mental health records from a sexual assault victim, balancing the victim’s highly confidential and privileged communications and the defendant’s important right to present a meaningful defense.
The Court reviews in detail the underlying facts and evidence as presented in the record. Defendant Terrell M. Chambers was indicted and charged with second- degree sexual assault, N.J.S.A. 2C:14-2(c)(1), following a victim’s allegation that he performed non-consensual oral sex upon her several times over the course of a night when they drank alcohol at a gathering with friends and family.
Defendant and several witnesses spoke about the victim’s alleged pre-incident mental illness. Defendant stated that the victim “was in the psychiatric home before, she went crazy before,” implying that she suffered from an illness that impaired her ability to recount the incident, or at a minimum, that she imagined or fabricated the incident. Defendant’s sister stated that the victim “is suicidal” and that “something went wrong with background” when the victim wanted to become a law enforcement officer. The sister’s boyfriend likewise stated that the victim “has been suicidal for a while” and could not become an officer because of “some suicidal things she had on her record.”
Defense counsel filed a motion to compel the State to obtain and produce the victim’s pre-incident mental health records. Alternatively, counsel requested that the State make such records available for an in camera inspection. The State opposed the motion and argued it was not in possession, custody, or control of the records, and that it was without knowledge of their existence.
The judge granted defendant’s motion and ordered the State to obtain and produce, for an in camera inspection, the victim’s mental health records -- extending six months before the incident and six months after the incident. The judge accepted
1 defense counsel’s argument that “[t]he possibility of mistaken perception or recollection of an incident presents a legitimate need for the information which outweighs any possible prejudice.” The victim had no notice of the motion and therefore had no opportunity to be heard.
The Appellate Division denied the State’s emergent motion seeking leave to appeal and a stay, noting that the State could renew its motion after the judge “issues an order regarding the use of the victim’s psychiatric records” following the in camera inspection. The Court granted leave to appeal. 249 N.J. 457 (2022).
HELD: A heightened discovery standard governs a defendant’s motion for pre- incident mental health records from a sexual assault victim. The Court establishes the standard applicable to a formally filed motion and also outlines a less formal process through which defendants may make requests for discovery of the pre- incident mental health records of an alleged sexual assault victim by letter to the prosecutor’s office. So that the new procedural and analytical framework can be applied in this case, the Court vacates the orders under review and remands the matter for further proceedings.
1. Under both the Federal and the New Jersey Constitutions, criminal defendants have the right to a meaningful opportunity to present a complete defense. To be able to present a complete defense, a defendant is entitled to broad, automatic pre-trial discovery in criminal cases in New Jersey, which is governed by our court rules. Among the categories of items that the State is obligated to produce to a criminal defendant are reports of “mental examinations . . . which are within the possession, custody or control of the prosecutor.” R. 3:13-3(b)(1)(C). But mental health records of a sexual assault victim are not within the possession, custody, or control of the prosecutor, and defendant therefore has no right under the court rules to obtain such records from the State. Moreover, the State’s disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963), do not extend to documents in a private third-party’s possession. Nevertheless, courts can order discovery of mental health records of sexual assault victims by exercising their inherent power to order discovery when justice so requires. (pp. 19-22)
2. Beyond the statutory and constitutional rights granted to all crime victims, New Jersey law confers additional rights upon victims of sexual assaults. Among the rights accorded to sexual assault victims by the Sexual Assault Victim’s Bill of Rights (SAVBR), N.J.S.A. 52:4B-60.2, (c)(1) to (c)(11), are rules regarding sexual assault victims’ participation in investigatory proceedings, including that victims can “choose whether to participate in any investigation of the assault,” id. at (c)(7); see also id. at (c)(4), (c)(6), and (c)(10). Alongside the SAVBR’s explicit codification of a sexual assault victim’s right to decline to participate in an investigation, New Jersey’s sexual assault statute was amended in 2020 to make 2 clear that the only requirement for a conviction under the sexual assault statute is proof beyond a reasonable doubt that there was sexual penetration and that it was accomplished without the affirmative and freely given permission of the victim. Thus, in addition to the enactment of the SAVBR and other statutes designed to offer rights and protections specific to victims of sexual assault, amendments to the criminal statute have arguably made victims’ mental health records less commonly necessary for a defense by eliminating older standards under which evidence of a victim’s mental state was sometimes more relevant to culpability. (pp. 22-26)
3. The Court emphasizes that the rights of defendants and victims are not mutually exclusive. Judicial discovery standards have long recognized that the greater the intrusion into one’s privacy, the higher the burden a defendant must show for the information sought. A majority of other state courts that have addressed the issue have concluded, upon balancing the rights of criminal defendants and alleged sexual assault victims, that there are certain circumstances under which review of mental health records is appropriate, and the Court reviews the standards established in such cases. (pp. 26-30)
4. The Court sets forth the procedural and analytical framework, under New Jersey law, for harmonizing the constitutional rights guaranteed to criminal defendants with the rights accorded to sexual assault victims in recognition of the potential trauma, embarrassment, and anxiety that might be caused by granting access to an alleged victim’s mental health records. Under the Court’s framework, a defendant is entitled to present a meaningful defense by making a good-faith request for pre- incident mental health records of a sexual assault victim. A defendant can make a motion seeking that information, follow a less formal path exploring access to the records, or both. The Court outlines each option in turn. (p. 30)
5. If a defendant files a motion seeking access to pre-incident mental health records, a victim is entitled to notice by the county prosecutor’s office and must have an opportunity to be heard, with or without independent counsel.
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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. Terrell M. Chambers (A-35-21) (086317)
Argued October 12, 2022 -- Decided January 23, 2023
FASCIALE, J., writing for the Court.
In this case, the Court establishes the procedural and analytical framework applicable to a defendant’s good-faith discovery request for pre-incident mental health records from a sexual assault victim, balancing the victim’s highly confidential and privileged communications and the defendant’s important right to present a meaningful defense.
The Court reviews in detail the underlying facts and evidence as presented in the record. Defendant Terrell M. Chambers was indicted and charged with second- degree sexual assault, N.J.S.A. 2C:14-2(c)(1), following a victim’s allegation that he performed non-consensual oral sex upon her several times over the course of a night when they drank alcohol at a gathering with friends and family.
Defendant and several witnesses spoke about the victim’s alleged pre-incident mental illness. Defendant stated that the victim “was in the psychiatric home before, she went crazy before,” implying that she suffered from an illness that impaired her ability to recount the incident, or at a minimum, that she imagined or fabricated the incident. Defendant’s sister stated that the victim “is suicidal” and that “something went wrong with background” when the victim wanted to become a law enforcement officer. The sister’s boyfriend likewise stated that the victim “has been suicidal for a while” and could not become an officer because of “some suicidal things she had on her record.”
Defense counsel filed a motion to compel the State to obtain and produce the victim’s pre-incident mental health records. Alternatively, counsel requested that the State make such records available for an in camera inspection. The State opposed the motion and argued it was not in possession, custody, or control of the records, and that it was without knowledge of their existence.
The judge granted defendant’s motion and ordered the State to obtain and produce, for an in camera inspection, the victim’s mental health records -- extending six months before the incident and six months after the incident. The judge accepted
1 defense counsel’s argument that “[t]he possibility of mistaken perception or recollection of an incident presents a legitimate need for the information which outweighs any possible prejudice.” The victim had no notice of the motion and therefore had no opportunity to be heard.
The Appellate Division denied the State’s emergent motion seeking leave to appeal and a stay, noting that the State could renew its motion after the judge “issues an order regarding the use of the victim’s psychiatric records” following the in camera inspection. The Court granted leave to appeal. 249 N.J. 457 (2022).
HELD: A heightened discovery standard governs a defendant’s motion for pre- incident mental health records from a sexual assault victim. The Court establishes the standard applicable to a formally filed motion and also outlines a less formal process through which defendants may make requests for discovery of the pre- incident mental health records of an alleged sexual assault victim by letter to the prosecutor’s office. So that the new procedural and analytical framework can be applied in this case, the Court vacates the orders under review and remands the matter for further proceedings.
1. Under both the Federal and the New Jersey Constitutions, criminal defendants have the right to a meaningful opportunity to present a complete defense. To be able to present a complete defense, a defendant is entitled to broad, automatic pre-trial discovery in criminal cases in New Jersey, which is governed by our court rules. Among the categories of items that the State is obligated to produce to a criminal defendant are reports of “mental examinations . . . which are within the possession, custody or control of the prosecutor.” R. 3:13-3(b)(1)(C). But mental health records of a sexual assault victim are not within the possession, custody, or control of the prosecutor, and defendant therefore has no right under the court rules to obtain such records from the State. Moreover, the State’s disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963), do not extend to documents in a private third-party’s possession. Nevertheless, courts can order discovery of mental health records of sexual assault victims by exercising their inherent power to order discovery when justice so requires. (pp. 19-22)
2. Beyond the statutory and constitutional rights granted to all crime victims, New Jersey law confers additional rights upon victims of sexual assaults. Among the rights accorded to sexual assault victims by the Sexual Assault Victim’s Bill of Rights (SAVBR), N.J.S.A. 52:4B-60.2, (c)(1) to (c)(11), are rules regarding sexual assault victims’ participation in investigatory proceedings, including that victims can “choose whether to participate in any investigation of the assault,” id. at (c)(7); see also id. at (c)(4), (c)(6), and (c)(10). Alongside the SAVBR’s explicit codification of a sexual assault victim’s right to decline to participate in an investigation, New Jersey’s sexual assault statute was amended in 2020 to make 2 clear that the only requirement for a conviction under the sexual assault statute is proof beyond a reasonable doubt that there was sexual penetration and that it was accomplished without the affirmative and freely given permission of the victim. Thus, in addition to the enactment of the SAVBR and other statutes designed to offer rights and protections specific to victims of sexual assault, amendments to the criminal statute have arguably made victims’ mental health records less commonly necessary for a defense by eliminating older standards under which evidence of a victim’s mental state was sometimes more relevant to culpability. (pp. 22-26)
3. The Court emphasizes that the rights of defendants and victims are not mutually exclusive. Judicial discovery standards have long recognized that the greater the intrusion into one’s privacy, the higher the burden a defendant must show for the information sought. A majority of other state courts that have addressed the issue have concluded, upon balancing the rights of criminal defendants and alleged sexual assault victims, that there are certain circumstances under which review of mental health records is appropriate, and the Court reviews the standards established in such cases. (pp. 26-30)
4. The Court sets forth the procedural and analytical framework, under New Jersey law, for harmonizing the constitutional rights guaranteed to criminal defendants with the rights accorded to sexual assault victims in recognition of the potential trauma, embarrassment, and anxiety that might be caused by granting access to an alleged victim’s mental health records. Under the Court’s framework, a defendant is entitled to present a meaningful defense by making a good-faith request for pre- incident mental health records of a sexual assault victim. A defendant can make a motion seeking that information, follow a less formal path exploring access to the records, or both. The Court outlines each option in turn. (p. 30)
5. If a defendant files a motion seeking access to pre-incident mental health records, a victim is entitled to notice by the county prosecutor’s office and must have an opportunity to be heard, with or without independent counsel. A sexual assault victim must receive notice of defendant’s motion from an assistant prosecutor or a victim witness coordinator, not a defendant or defense counsel. The State and any alleged victims have the right to oppose the motion, and we leave to the discretion of a trial judge the appropriate briefing schedule. In addition to the notice requirement, a motion for discovery of mental health records must satisfy a two-stage standard. First, to obtain an in camera inspection of the alleged sexual assault victim’s mental health records, a defendant must make three showings: (1) that there is a substantial, particularized need for such access; (2) that the information sought is relevant and material; and (3) that the information is not available through less intrusive means. If a defendant satisfies that three-part standard by a preponderance of the evidence, then the defendant is entitled to have a judge conduct an in camera inspection. The court shall enter an order directing disclosure of the records under the appropriate 3 circumstances. The Court rejects defendant’s contention that defense counsel should be allowed to be present during the in camera review. During the in camera inspection, the judge must determine whether to “pierce” the applicable mental health privilege, redact the pre-incident records, and make them available under a protective order. The Court reviews in detail the standard for making that determination under N.J.R.E. 534 and provides guidance about the redaction and discovery of such records. (pp. 31-36)
6. If a defendant chooses to proceed informally, a victim is still entitled to notice by the county prosecutor’s office and must have an opportunity to be heard with or without independent counsel. Like the formal route, informal requests for mental health records should be rare. To proceed informally, defense counsel can in good faith seek pre-incident mental health records by sending a letter to an assistant prosecutor. The letter should (1) identify with particularity the kinds of records sought; (2) show substantial need tied directly to the victim’s ability to perceive, recall, or recount the facts of the alleged incident, or to the victim’s likelihood to fabricate or even imagine the incident altogether; and (3) explicitly state that sexual assault victims have a statutory right not to “participate in any investigation of the assault.” The Court establishes additional requirements and notes that defendants have discretion to determine whether to proceed formally or informally. (pp. 37-38)
7. In light of the new procedural and analytical framework adopted in this opinion, the Court vacates the trial court’s orders and remands for further proceedings. The Court reviews the record and concludes that there must be something more than what is currently before the Court to establish substantial need for access to the mental health records of a sexual assault victim. The Court provides guidance for the remand and notes that the defense team can supplement the record. (pp. 38-41)
The orders under review are VACATED and the matter is REMANDED.
CHIEF JUSTICE RABNER; JUSTICES PATTERSON, SOLOMON, and PIERRE-LOUIS; and JUDGE SABATINO (temporarily assigned) join in JUSTICE FASCIALE’s opinion.
4 SUPREME COURT OF NEW JERSEY A-35 September Term 2021 086317
State of New Jersey,
Plaintiff-Appellant,
v.
Terrell M. Chambers,
Defendant-Respondent.
On appeal from the Superior Court, Appellate Division.
Argued Decided October 12, 2022 January 23, 2023
Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Theodore N. Stephens, II, Acting Essex County Prosecutor, attorney; Caroline C. Galda, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the briefs, and Frank J. Ducoat, on the briefs).
Alexandra E. Macaluso argued the cause for respondent (Fusco & Macaluso, attorneys; Alexandra E. Macaluso and Giovanna Giampa, on the briefs).
Lila B. Leonard, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Matthew J. Platkin, Attorney General, attorney; Lila B. Leonard, of counsel and on the brief).
1 Alyssa Aiello, Assistant Deputy Public Defender, argued the cause for amicus curiae Public Defender of New Jersey (Joseph E. Krakora, Public Defender, attorney; Alyssa Aiello and Rachel A. Neckes, Legal Fellow, on the brief).
Aidan P. O’Connor argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Pashman Stein Walder Hayden, attorneys; Aidan P. O’Connor, on the brief).
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 LoCicero, of counsel and on the brief, and Ronald K. Chen, on the brief).
JUSTICE FASCIALE delivered the opinion of the Court.
In this case, we establish the procedural and analytical framework
applicable to a defendant’s good-faith discovery request for pre-incident
mental health records from a sexual assault victim. The parties and amici
agree generally that under certain circumstances, such records might be
discoverable. And they acknowledge that an accused and a sexual assault
victim each have important constitutional, statutory, and common law rights.
But they disagree how to harmonize those discordant rights.
We do not expect that defendants will routinely make requests for
mental health records of sexual assault victims. Such requests are and should
2 remain rare. Here, defendant knew the victim and believed she suffered from a
pre-incident mental illness that impaired her ability to accurately recall the
alleged incident. This appeal requires that we balance a sexual assault victim’s
highly confidential and privileged communications and a defendant’s
important right to present a meaningful defense.
We hold that a heightened discovery standard governs a defendant’s
motion for pre-incident mental health records from a sexual assault victim.
First, to be entitled to an in camera inspection of those records, a defendant
must preliminarily demonstrate by a preponderance of the evidence, (1) a
substantial, particularized need for the records; (2) that the alleged mental
illness is both relevant and material to a victim’s ability to perceive, recall, or
recount the alleged assault, or a proclivity to imagine or fabricate it; and (3)
that the information sought cannot be obtained through less intrusive means.
Second, if a defendant satisfies that heavy preliminary burden after appropriate
notice to the victim as we later describe, the judge must conduct an in camera
inspection and determine whether to “pierce” the privilege, redact the records,
and produce them under a protective order. In addition to that standard
applicable to a formally filed motion, we outline a less formal process through
which defendants may make requests for discovery of the pre-incident mental
3 health records of an alleged sexual assault victim by letter to the prosecutor’s
office.
Because we are announcing a new procedural and analytical framework
applicable to a defendant’s request for such records, we vacate the order
directing the State to produce the victim’s purported records; we vacate the
order denying the State’s motion for reconsideration; and we remand for the
parties to supplement the record and for further proceedings consistent with
this opinion.
I.
A.
The case comes to us in the early discovery stage. The trial record
contains police and forensic reports, as well as statements from various
individuals. We summarize the pretrial factual allegations that the judge
considered, understanding that the State will be left to its proofs at trial. The
alleged incident occurred at the residence of defendant Terrell Chambers’s
sister (the sister). 1 Defendant and the victim are cousins, and defendant, the
victim, and the witnesses were well acquainted.
1 We do not utilize names of family members or friends to protect their privacy. We refer to the alleged victim as “the victim.” See R. 1:38-3(c)(12).
4 The victim and the sister are in their early thirties. Although they had
been very close since childhood, the sister stated that she and the victim were
“kinda . . . separated” at the time of the alleged offense because of some recent
“family drama.” Defendant was twenty-seven years old and training to be a
police officer. According to defendant and his sister, the victim allegedly
previously pursued a similar career interest in law enforcement.
In the late afternoon on Saturday, October 13, 2018, multiple people
gathered at the sister’s home. Those in attendance included the victim and her
nine-year-old daughter; the sister’s boyfriend and his children; the sister’s
infant daughter; defendant; defendant’s girlfriend; and defendant’s friend. The
sister, who was breastfeeding her infant child, consumed no alcohol that night.
The victim and defendant stayed at the residence overnight because they were
inebriated. Their own statements to detectives reflect that they spent the night
in the sister’s living room, either on the same couch or on different but nearby
couches.
The victim alleges that she woke up to defendant performing cunnilingus
on her. She pushed him away but was unable to get up because of her state of
inebriation. According to the victim, defendant repeated the sexual assault
approximately three more times that night. Each time he allegedly did so she
protested by pushing him away.
5 A few days later, the victim contacted her best friend (the best friend),
who was not there the night of the alleged assault. The victim texted her the
following message:
A few nights ago, I was raped by a relative. I’m [f*****] up right now and have no one else to talk to about this. . . . I just spoke with you about giving up the other day and it’s getting real for me right now. I can’t really talk about it to anyone, but, if something were to happen to me, I need someone to know the facts on why anything happened. Why the [f***] [has] this [s***] happened to me. I have lost all faith in God because this is beyond making me a stronger person. I am broken right now[,] and I am now in a very dark place. I hate my life right now. Why has this happened to me, why? That night continues to play in my head. I want it to go away. Since then, I’ve been crying. Not a clue what to do. I do not want to tell my family. I do not know what to do. I love you so much, I really do. I’m sorry for pulling you into this, but, I need for someone to know.
The best friend immediately called her. Six days after the incident, the victim
sat down with her parents, her sister, her brother, a family friend who worked
in law enforcement, and the best friend, and explained to them what allegedly
happened during the evening in question. They encouraged her to report the
incident to the police, and the next day the victim gave a statement to the
Prosecutor’s Office. At that time, she produced for forensic testing the
underwear she wore that night.
6 Approximately two days later, the victim participated in a consensual
intercept telephone call, arranged by detectives, between her and defendant.
On the call, the victim asked defendant, “Yo, Sunday, why’d you do what you
did, yo?” Defendant asked, “[w]hat’d I do Sunday?” then told her he would
call her right back. Defendant then sent a text message saying, “I’m confused.
When I park, I’ll call back.” Fifteen minutes later, he texted her saying, “I’m
at the uniform place getting fitted for my bulletproof vest.” The victim
responded by saying, “just step out and give me a minute because I need an
apology from you and why you did it.”
When defendant called her back, she asked him, “you literally sat there
and [performed cunnilingus], . . . why would you do that?” Defendant said, “I
was blacked out, I don’t even remember . . . too much.” He continued denying
any wrongdoing saying he did not “even remember how [he] got home”
because he “was blacked out, blacked out, blacked out.” He said, “I’m sorry, I
swear to God, I apologize -- I’m apologizing to you, if I did, I’m so sorry.”
Defendant told the victim, “honestly, I don’t even remember.” He eventually
stated, “I’m apologizing . . . I’ll kill myself right now . . . do you want me to
kill myself, I will do it . . . I know you hate me, you’ll never have to see me
again, I promise.” He added, “I was blacked out.” In response to her repeated
questions about whether defendant performed oral sex on her, defendant
7 finally responded “yeah . . . I answered you, yes.” After defendant's
admission, the victim asked if he was sorry, and defendant then stated, “Yes, I
feel like s*** . . . I believe I’m going to kill myself. I can’t live my life like
this. I’m going to have to do it because I can’t live my life like this.”
Defendant went on to say, “I don’t need to be alive anymore. I f***** up."
Defendant begged the victim not to tell the sister, and to give him some time
so that he could tell the sister himself.
The police then took statements from defendant, the sister, and the
sister’s boyfriend. In their statements, they all vaguely alluded to the victim’s
alleged mental health history. The sister also told the police that she learned
from defendant’s girlfriend about the victim’s alleged failure to become a
police officer due to the victim’s alleged mental illness. We summarize the
statements from these three individuals, especially their references to the
victim’s alleged mental illness.
First, the detectives interviewed defendant the day after the recorded
phone call between him and the victim. Defendant admitted that he attended
the gathering and remained at the sister’s residence after a night of drinking
alcohol. He explained that he stayed on a different couch, also in the living
room, than the one on which the victim slept. He said the victim “passed out
8 before me” and most importantly, he denied sexually assaulting her, saying
“[t]his is ridiculous.”
The detectives questioned defendant about whether the victim asked for
an apology during the intercepted call. Defendant admitted that he consumed
alcohol the morning of the call, and “that’s the part where it gets fuzzy for me
. . . I know . . . we . . . talk[ed] . . . it’s hazy [be]cause I was drinking and I’m
saying to myself . . . what’s going on here.” He explained “I know I was
really, really, really drunk, I know that for a fact. . . . I was [a] messy
stumbling drunk. I could barely walk myself.” Defendant added, “[i]t didn’t
happen. That’s a fact, that didn’t happen. . . . [She]’s lying.” He conceded
that he told the victim on the recorded phone call that he performed oral sex on
her but then explained to the detectives that he lied because he was scared.
Defendant told the detectives “that’s the only mistake I made by saying I did
something I didn’t [do].”
Defendant then referred to his understanding about the victim’s alleged
pre-incident mental illness. In response to the detectives questioning him
about why she would lie, defendant responded vaguely, “I don’t know, but, she
was in the psychiatric home before, she went crazy before . . . something
happened to her . . . [and] they evaluated her . . . a few years ago.” The
implication was that she suffered from an illness that impaired her ability to
9 recount the incident, or at a minimum, that she imagined or fabricated the
incident. Defendant offered no further details, and the detectives asked no
follow-up questions.
Second, detectives interviewed the sister about two weeks after the
incident. She said the victim was “completely drunk” and “intoxicated from
marijuana.” She stated the victim “couldn’t even . . . keep her eyes open” and
had “passed out on the couch.” The sister believed defendant had slept for
only 1.5 to 2 hours. The sister reports that she was generally aware of what
happened during the night because she “didn’t get any sleep” and was “up all
night.” Between 1:00 a.m. and 8:00 a.m., the sister stated she was “back and
forth” between her bedroom, living room, and kitchen caring for her newborn
and trying to reach her boyfriend by text and phone calls. The sister explained
that from her bedroom, she could see everything in the living room because
her bedroom light and kitchen light stayed on for the duration of the night.
She added that every time she came out of her bedroom and turned the hallway
lights on, defendant was “alert that [she] was walking through the house”
because he told her to turn the lights off.
The sister stated that her boyfriend returned for ten minutes around 3:15
a.m. According to the sister, defendant awakened and was Facetiming and
speaking on the phone with a woman from around 3:45 a.m. to 5:15 a.m.
10 According to the sister, defendant had fallen asleep around 6:00 a.m. after he
had been “on the phone the entire time.” During his phone call with the
woman, the sister saw the victim “buried into my couch, knocked out.”
The sister explained, “that’s why I [am] completely confused, like,
where did the [sexual assault] happen because I was up. I was a sober adult,
up, with my child in my arms and I had a room full of kids . . . . You can hear
everything[,] . . . [m]y apartment isn’t . . . so big, you can hear a pin drop at
night.” The sister stated that the victim wore jeans and she “was buried under
[a] blanket . . . [and] pillows, . . . her pants were still on -- she fell asleep with
her . . . Uggs[,] . . . . She never took anything off.” She added, “if [defendant
was] standing over her, trying to [assault] her with her pants and her panties
down, I would’ve heard something.”
The sister explained that at 6:30 a.m., when some of the children woke
up, she saw the victim “still in the spot” on the couch. The sister stated t hat
the victim “didn’t move. She was stuck in that one spot” on the couch and
“[a]sleep the entire time” until 8:00 a.m. The sister stated that everyone left
her residence by 8:45 a.m.
The sister told detectives that she then spoke to the victim about
unrelated topics around 12:00 p.m. and 2:00 p.m. The sister also stated that “I
do know that [the victim] was passed out cause the next day I text her, like,
11 you and [defendant], you guys were done and she was, like, LOL, and, then
she sent me pictures of my daughter that afternoon” and responded with emojis
to some of her “Instasnap[s].” According to the sister, everyone was “normal”
in the days following the alleged incident. She spoke to the victim on the
phone on Saturday, October 20, and the victim told her about a car accident
that occurred the previous day. The sister first learned about the sexual assault
allegations when her brother, defendant, returned home from police
questioning on the night of Monday, October 22.
On the subject of the victim’s prior history of an alleged mental illness,
the sister explained to detectives that defendant’s girlfriend had told her that
the victim “wanted to be a cop, but, something went wrong with background.”
Applying her own personal knowledge, the sister added, “[w]hat I do know is
that [the victim] is suicidal[,] . . . in my family, they have these jealousy things
. . . if someone’s happy, she got a suicidal post up, if someone’s getting
engaged, she got a post up” on social media.
Third, detectives interviewed the sister’s boyfriend on Thursday,
October 25. He confirmed that everyone had been drinking that night except
for the sister. He added that in addition to the alcohol, the victim smoked
marijuana that night. He explained that he left around 1:00 a.m. after he and
the sister had an argument. At the time he exited the sister’s residence, he saw
12 the victim consoling defendant while defendant cried on the victim’s shoulder
after the sister and her boyfriend argued. The sister’s boyfriend departed the
residence and continued texting the sister throughout the early morning hours.
The sister’s boyfriend stated that at 3:15 a.m. he returned to the home
and saw defendant and the victim sleeping. He then walked out of the
residence five minutes later. During the brief time he was there, the lights
were off, and the sister was awake walking from her room to the kitchen with
the baby. Everyone else “was knocked out . . . fully clothed.” He knew that
the sister had “never [gone] to sleep” because the couple continued texting
“throughout the night.” He returned at 8:00 a.m. and saw the victim and
defendant still asleep and fully clothed.
As to the victim’s alleged mental health state, the sister’s boyfriend told
detectives that “this girl has been suicidal for a while . . . [i]f you dig, you will
see it.” He stated that “everybody knows [she] gets suicidal” and she posts on
Facebook about it. The sister’s boyfriend explained that the victim was unable
to be a police officer because of “some suicidal things she had on her record.”
He speculated about the victim’s “motive behind this” but provided no further
details.
13 B.
A grand jury indicted and charged defendant with second-degree sexual
assault, N.J.S.A. 2C:14-2(c)(1). A saliva sample was collected from the
victim’s underwear. The State then confirmed, after the indictment, that the
saliva matched defendant’s DNA.
Defense counsel filed a motion to compel the State to obtain and
produce the victim’s pre-incident mental health records. Alternatively,
counsel requested that the State make such records available for an in camera
inspection. The State opposed the motion and argued it was not in possession,
custody, or control of the records, and that it was without knowledge of their
existence.
The judge granted defendant’s motion and ordered the State to obtain
and produce, for an in camera inspection, the victim’s mental health records --
extending six months before the incident and six months after the incident. 2
The judge agreed that if the victim had a mental health illness and had been
taking medication, the combination of the medicine and alcohol could have
impacted how the victim perceived, recalled, and related the incident. The
2 The parties agree that on this trial record there is no articulated basis to inspect records of mental health consultation or treatment that took place after the incident.
14 judge accepted defense counsel’s argument that “[t]he possibility of mistaken
perception or recollection of an incident presents a legitimate need for the
information which outweighs any possible prejudice.”
To explain how defendant’s DNA was found on the victim’s underwear,
defense counsel argued to the judge that the victim’s alleged mental illness
“could have motivated” her to wipe defendant’s DNA from where he had cried
on her shoulder earlier and place it on her underwear that night, implying that
the victim framed defendant, or in the alternative, that she imagined or
otherwise fabricated the allegation that he assaulted her. The victim had no
notice of the motion and therefore had no opportunity to be heard.
The State moved for reconsideration. In denying that motion, the judge
determined that there was a “preponderance of the evidence that [mental health
records] exist[ed].” The judge reiterated defendant satisfied his discovery
burden to show “the minimal threshold of demonstrating that the[] [mental
health] records may contain exculpatory information as well as information
related to the identification and credibility of witnesses.” The judge again
directed the State to obtain the records.
The State moved for leave to appeal and stay the judge’s discovery
orders. The Appellate Division denied the State’s emergent motion, noting
15 that the State could renew its motion after the judge “issues an order regarding
the use of the victim’s psychiatric records” following the in camera inspection.
We granted leave to appeal. 249 N.J. 457 (2022). We also granted the
motions of the Attorney General, the Office of the Public Defender (OPD), the
Association of Criminal Defense Lawyers of New Jersey (ACDL), and the
American Civil Liberties Union of New Jersey (ACLU) to appear as amici
curiae.
II.
On appeal, the assistant prosecutor was unable to say whether the victim
received any mental health treatment or whether mental health records exist,
and he confirmed that he did not speak to the victim about the subject. 3 The
State concedes generally that pre-incident mental health records may be
discoverable under certain circumstances but emphasizes that the type of
information -- mental health records -- and the status of the person whose
records are sought -- victims of sexual assault -- require a heightened
3 The assistant prosecutor represented to this Court that he is unsure whether police academy records exist pertaining to the victim’s alleged mental health history. On remand, the State should make the appropriate inquiries and establish whether such information exists. If it does, the judge should then determine, on notice to the victim, whether those records are discoverable.
16 discovery standard. The State proposes that a defendant should have the
burden, on notice to the victim who should have an opportunity to be heard, to
make a substantial showing that there is a particularized need for such
discovery and that the mental health information sought cannot be obtai ned by
less intrusive means. The State suggests that a judge should then consider the
privacy interests of the sexual assault victim and whether the records will
reveal material exculpatory evidence.
The Attorney General, appearing as amicus curiae, generally agrees that
pre-incident mental health records of a sexual assault victim may be
discoverable. The Attorney General adopts the State’s request for a
heightened standard. According to the Attorney General, anything less would
deter sexual assault victims from reporting crimes or seeking treatment and
might encourage defense counsel to routinely request mental health records out
of a perceived fear that doing otherwise would be ineffective assistance of
counsel.
Defendant acknowledges that a victim has the right to notice and an
opportunity to be heard. But he rejects application of a heightened standard
for disclosure of a victim’s mental health records in sexual assault cases and
instead proposes a lower standard to justify in camera review. He asserts that
a defendant must show something less than a particularized need but more than
17 a generalized assumption or possibility that a mental illness would impact a
material part of the case, specifically an ability to perceive, recall, or recount
an event, or a proclivity to imagine or fabricate it. In other words, defendant
contends there must be a reasonable suspicion of a mental illness and that it
directly relates only to the ability to relate what allegedly occurred.
Amicus ACDL argues that when a defendant requests discovery that is
outside the scope of our court rules, as happened here, defendant bears the
burden of showing need. The ACDL proposes that a defendant must show the
importance of the information sought and whether it can be obtained from
other sources and must address how intrusive the disclosure would be on the
victim.
Amici ACLU and OPD urge us to employ a multi-stage approach in
determining whether to disclose privileged mental health records. Both amici
agree that the reasonable probability standard is appropriate, but the ACLU
emphasizes that reasonable probability, like reasonable suspicion, demands
specifics and cannot rely exclusively on generalized assertions. Thus,
although the OPD would have in camera inspection occur prior to a
determination of materiality, the ACLU asserts defendants must first make a
sufficient showing of reasonable probability. Once that is accomplished, the
ACLU asserts, the judge should review the records in camera. The ACLU
18 contends that the State should then obtain the records by having the victim
sign a release through, for example, a victim coordinator in the county
prosecutor’s office.
III.
We begin by summarizing the rights of an accused and of victims of
sexual assaults. Doing so places in context our conclusion that the information
sought is governed by a heightened and multi-stage discovery standard.
Criminal defendants have the constitutional right to a fair trial, which
includes the right to effective assistance of counsel, confrontation, compulsory
process, and due process. U.S. Const. amends. V, VI; N.J. Const. art. I, ¶ 10.
Under both the Federal and the New Jersey Constitutions, criminal defendants
also have the right to “a meaningful opportunity to present a complete
defense.” State v. Budis, 125 N.J. 519, 531 (1991) (quoting Crane v.
Kentucky, 476 U.S. 683, 690 (1986)). That opportunity includes seeking
discovery that is relevant and material to a victim’s ability to perceive, recall,
or recount an alleged sexual assault, or a proclivity to imagine or fabricate it.
See id. at 545 (noting that even when this Court has ultimately denied a
defendant’s discovery request, it has acknowledged that “[o]ur criminal justice
system recognizes fully a defendant’s right to prepare a defense and have
19 complete discovery”) (O’Hern, J., dissenting) (quoting State v. R.W., 104 N.J.
14, 28 (1986))).
To be able to present a complete defense, a defendant is entitled to
broad, automatic pre-trial discovery in criminal cases in New Jersey, which is
governed by our court rules. See State v. Scoles, 214 N.J. 236, 252 (2013); R.
3:13-3(b). Our state’s robust “‘open-file approach to pretrial discovery in
criminal matters’ is intended ‘[t]o advance the goal of providing fair and just
criminal trials.’” State v. Hernandez, 225 N.J. 451, 461-62 (2016) (alteration
in original) (quoting Scoles, 214 N.J. at 252). This Court has emphasized that
“[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.” State in Int. of A.B., 219 N.J. 542, 556 (2014) (quoting Ake v.
Oklahoma, 470 U.S. 68, 77 (1985)). Among the categories of items that the
State is obligated to produce to a criminal defendant are reports of “mental
examinations . . . which are within the possession, custody or control of the
prosecutor.” R. 3:13-3(b)(1)(C).
But mental health records of a sexual assault victim are not within the
possession, custody, or control of the prosecutor, and defendant therefore has
no right under the court rules to obtain such records from the State. See, e.g.,
State v. Kane, 449 N.J. Super. 119, 133 (App. Div. 2017) (“[E]vidence in the
20 control of a crime victim -- notwithstanding the victim’s close cooperation
with the prosecution -- is not within the prosecutor’s ‘possession, custody or
control.’” (alteration in original) (quoting State v. Robertson, 438 N.J. Super.
47, 69 (App. Div. 2014))). Moreover, the State’s disclosure obligations under
Brady v. Maryland, 373 U.S. 83 (1963), do not extend to documents in a
private third-party’s possession. See, e.g., Robertson, 438 N.J. Super. at 69.
Therefore, Rule 3:13-3(b) and Brady impose no independent discovery
obligation on the State to obtain and produce the records.
Beyond court rules, however, the parties and amici recognize that courts
can order discovery of mental health records of sexual assault victims by
exercising their “inherent power to order discovery . . . ‘when justice so
requires.’” State v. Szemple, 247 N.J. 82, 97 (2021) (quoting State v.
Marshall, 148 N.J. 89, 269 (1997)). Indeed, that inherent power provides the
legal authority for an accused to make the request, subject to a discovery
standard that balances a defendant’s right with the protections afforded to
sexual assault victims. “Whether discovery should be expanded [beyond Rule
3:13-3(b)] involves exercising judicial discretion . . . [by] balancing the
beneficial effects of discovery against its disadvantages.” State in Int. of
W.C., 85 N.J. 218, 224 (1981).
21 Having considered the importance of discovery to a defendant’s
constitutional rights, we turn next to the rights of sexual assault victims that
must also be weighed in determining whether the interests of justice require
discovery beyond that afforded by court rule.
B.
New Jersey law has “reveal[ed] a steady movement . . . to recognize and
enhance the rights of crime victims.” State v. Tedesco, 214 N.J. 177, 196
(2013). It has done so by statute, case law, and amendment to our State
Constitution.
In general, and under the Crime Victim’s Bill of Rights (CVBR),
N.J.S.A. 52:4B-34 to -38, “crime victims and witnesses are entitled to” several
important rights. Those include being “treated with dignity and compassion by
the criminal justice system,” N.J.S.A. 52:4B-36(a); remaining “free from
intimidation, harassment or abuse by any person including the defendant” or
someone acting on the defendant’s behalf, id. at (c); “hav[ing] inconveniences
associated with participation in the criminal justice process minimized to the
fullest extent possible,” id. at (d); receiving information “about the criminal
justice process” in general, the progress of the case in which the victim is
involved, and available medical assistance and remedies, id. at (b), (f), (g), (h),
22 and (k); and having the opportunity to be present at and participate in
proceedings as permitted by the State Constitution, id. at (p) and (r).
Under the relevant portion of the Victims’ Rights Amendment (VRA) to
the New Jersey Constitution, adopted in 1991,
[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.
[N.J. Const. art. I, ¶ 22.]
Beyond those rights granted to all crime victims, New Jersey law confers
additional rights upon victims of sexual assaults. Our courts have recognized
that, in sexual assault cases, “the wellbeing of . . . victims demands heightened
protection” because there is a “likelihood of emotional trauma and mental
distress.” State v. D.R.H., 127 N.J. 249, 259 (1992); see also State v. Ramirez,
252 N.J. 277, 299, 301-03 (2022) (detailing the substantial legislatively
established rights for sexual assault victims); N.J.R.E. 517 (applying a victim-
counselor privilege to crimes of violence including sexual assault). The
Legislature distinguished victims of sexual assault from other crime victims
23 when it enacted the Sexual Assault Victim’s Bill of Rights (SAVBR), N.J.S.A.
52:4B-60.2, which was passed unanimously by both houses in March 2019.
The statute notes other legislation that has conferred rights upon crime
victims, id. at (a), and stresses that the SAVBR was intended to create “no
diminution of [those] legislatively-recognized rights,” id. at (c). The SAVBR
then accords to victims of sexual assault a series of rights, see id. at (c)(1) to
(c)(11), explaining that “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,” id. at
(b). In addition to provisions that guarantee various forms of medical and
mental health services to victims of sexual assault, see id. at (c)(4), (c)(5),
(c)(8), and (c)(9); and that provide standards of conduct toward and protections
for sexual assault victims, id. at (c)(1) to (c)(3), and (c)(11); the SAVBR
establishes rules regarding sexual assault victims’ participation in
investigatory proceedings, including that victims can “choose whether to
participate in any investigation of the assault,” id. at (c)(7); see also id. at
(c)(4), (c)(6), and (c)(10).
Alongside the SAVBR’s explicit codification of a sexual assault victim’s
right to decline to participate in an investigation, New Jersey’s sexual assault
statute -- N.J.S.A. 2C:14-2, under which defendant was indicted -- was
24 amended in 2020 to make clear “that the only requirement for a conviction
under the sexual assault statute is proof beyond a reasonable doubt that there
was sexual penetration and that it was accomplished without the affirmative
and freely-given permission of the victim.” C.R. v. M.T., 248 N.J. 428, 444
(2021) (quoting S. Law & Pub. Safety Comm. Statement to A. 2767 (Sept. 27,
2018)). That change reflected this Court’s holding that
neither the alleged victim’s subjective state of mind nor the reasonableness of the alleged victim’s actions can be deemed relevant to the offense. The alleged victim may be questioned about what he or she did or said only to determine whether the defendant was reasonable in believing that affirmative permission had been freely given. To repeat, the law places no burden on the alleged victim to have expressed non-consent or to have denied permission, and no inquiry is made into what he or she thought or desired or why he or she did not resist or protest.
[Id. at 443 (quoting State in Int. of M.T.S., 129 N.J. 422, 448 (1992)).]
Thus, in addition to the enactment of the SAVBR and other statutes designed
to offer rights and protections specific to victims of sexual assault,
amendments to the criminal statute have arguably made victims’ mental health
records less commonly necessary for a defense by eliminating older standards
under which evidence of a victim’s mental state was sometimes more relevant
to culpability. Our holding here relates solely to discovery and does not
25 disturb the current state of the law as it relates to a victim’s mental state in the
context of culpability.
All of those concepts are relevant considerations to balance against a
defendant’s constitutional rights and entitlement to discovery in support of
those rights.
C.
Although a request for additional discovery requires that the rights of
defendants and victims be balanced, we emphasize that those rights are not
mutually exclusive. The rights of one need not be sacrificed for the rights of
another. A.B., 219 N.J. at 558; see also State v. J.D., 211 N.J. 344, 357-58
(2012) (recognizing that a balance must be struck between competing interests
in considering a request to present evidence of a victim’s past sexual conduct
notwithstanding the limits placed on such evidence by the Rape Shield Law,
N.J.S.A. 2C:14-7). As the Supreme Court of Arizona has observed,
[a] victim does not have an absolute privilege against disclosure of private records, nor does a defendant have an unqualified right to obtain those records for use at trial in every circumstance. Consequently, the rights of the defendant and victims are not necessarily mutually exclusive. In exercising its discretion, a court must strike a balance between the competing interests of a victim’s privilege and a defendant’s federal constitutional rights to procure and present evidence necessary to construct a complete defense. Thus, a victim’s right to refuse discovery must yield when a
26 defendant makes the requisite constitutional showing of need for the information.
[Crime Victims v. Thompson, 485 P.3d 1068, 1075 (Ariz. 2021).]
We understand that a victim’s constitutional right to be treated with
“fairness, compassion and respect by the criminal justice system,” N.J. Const.
art I, ¶ 22, was not meant “to deny or infringe upon the constitutional rights of
any person accused of a crime,” A.B., 219 N.J. at 558 (quoting A. Comm.
Statement to A. Concurrent Res. No. 85, 204th Leg., 1st Sess. 2 (1990)). 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, as the parties here recognize, a victim’s rights under the VRA, SAVBR,
and CVBR “do not diminish those rights possessed by [an] accused facing a
criminal prosecution.” A.B., 219 N.J. at 558.
Although we have not previously explored how the rights of a defendant
and an alleged victim of sexual assault should be balanced as to requests for
mental health records, our judicial discovery standards have long recognized
that the greater the intrusion into one’s privacy, the higher the burden a
defendant must show for the information sought. For example, a heightened
standard of substantial need is imposed when a defendant requests an alleged
victim undergo a psychiatric or gynecological examination because psychiatric
27 and physical examinations are extraordinary intrusions into an alleged victim’s
mind and body. See D.R.H., 127 N.J. at 258-59; R.W., 104 N.J. at 28 & n.3;
see also A.B., 219 N.J. at 562 (applying a heightened standard when a
defendant requests a second inspection of a victim’s home); State v. Perry, 225
N.J. 222, 236 (2016) (explaining the two-step analysis for determining the
admissibility of evidence of a victim’s prior sexual conduct); Kinsella v.
Kinsella, 150 N.J. 276, 299 (1997) (adopting in the context of a request for
psychiatric records a three-part test under which, for in camera review of the
requested records to take place in a matrimonial case, “(1) there must be a
legitimate need for the evidence; (2) the evidence must be relevant and
material to the issue before the court; and (3) by a fair preponderance of the
evidence, the party must show that the information cannot be secured from any
less intrusive source” (emphases added) (citing In re Kozlov, 79 N.J. 232, 243-
44 (1979))).
A majority of other state courts that have addressed the issue have
concluded, upon balancing the rights of criminal defendants and alleged sexual
assault victims, that there are certain circumstances under which review of
mental health records is appropriate. See Commonwealth v. Barroso, 122
S.W.3d 554, 561 (Ky. 2003) (“A majority of the state courts that have
addressed the issue have held that a criminal defendant, upon a preliminary
28 showing that the records likely contain exculpatory evidence, is entitled to
some form of pretrial discovery of a prosecution witness’s mental health
treatment records that would otherwise be subject to an ‘absolute’ privilege.” ).
Several courts have adopted a two-part approach, setting an initial
standard for obtaining in camera review of a victim’s mental health records
and a more stringent standard for granting disclosure of what was found in the
records to the defense. See, e.g., People v. Stanaway, 521 N.W.2d 557, 574-75
(Mich. 1994) (holding that (1) “on a showing that the defendant has a good-
faith belief, grounded on some demonstrable fact, that there is a reasonable
probability that the records are likely to contain material information necessary
to the defense,” a trial court may conduct an in camera review; and (2) “[o]nly
after the court has conducted the in camera inspection and is satisfied that the
records reveal evidence necessary to the defense is the evidence to be supplied
to defense counsel”); Thompson, 485 P.3d at 1076-78 (holding that courts
should “allow in-camera review of privileged [mental health] records when the
defendant demonstrates a reasonable possibility that the requested information
includes evidence to which he is entitled as a matter of due process” and
noting that the more stringent “substantial probability standard” announced by
the intermediate appellate court in that case “seem[ed] better suited to a
disclosure rule rather than as a benchmark for in-camera review”); see also
29 State v. Storlazzi, 464 A.2d 829, 832-33 (Conn. 1983) (finding that “an in
camera inspection by the trial judge of the witness’ [mental health records] for
material relevant to the issue of credibility is appropriate” but leaving the
subsequent decision about granting a defendant access to the records to “be
determined on a case by case basis” (quotation omitted)).
IV.
Guided by the principles set forth above, we next establish the
procedural and analytical framework, under New Jersey law, for harmonizing
the constitutional rights guaranteed to criminal defendants with the rights
accorded to sexual assault victims in recognition of the potential trauma,
embarrassment, and anxiety that might be caused by granting access to an
alleged victim’s mental health records.
Under the framework we adopt, a defendant is entitled to present a
meaningful defense by making a good-faith request for pre-incident mental
health records of a sexual assault victim. A defendant can make a motion
seeking that information, follow a less formal path exploring access to the
records, or both. We outline each option in turn, beginning with the more
formal motion procedure.
30 A.
If a defendant files a motion seeking access to pre-incident mental health
records, a victim is entitled to notice by the county prosecutor’s office and
must have an opportunity to be heard, with or without independent counsel.
Under the CVBR, crime victims have the right “[t]o be informed about the
criminal justice process,” N.J.S.A. 52:4B-36(b); “[t]o be informed about
available remedies,” id. at (h); and “[t]o be advised of case progress,” id. at
(k). Additionally, crime victims have the right “to confer with the prosecutor’s
representative so that the victim may be kept adequately informed.” Ibid.
Considering the rights to communication that N.J.S.A. 52:4B-36 creates vis-à-
vis the prosecutor’s office, a sexual assault victim must receive notice of
defendant’s motion from an assistant prosecutor or a victim witness
coordinator, not a defendant or defense counsel. The State and any alleged
victims have the right to oppose the motion, and we leave to the discretion of a
trial judge the appropriate briefing schedule.
In addition to the notice requirement, a motion for discovery of mental
health records must satisfy a two-stage standard.
1.
First, to obtain an in camera inspection of the alleged sexual assault
victim’s mental health records, a defendant must make three showings: (1)
31 that there is a substantial, particularized need for such access; (2) that the
information sought is relevant and material; and (3) that the information is not
available through less intrusive means.
To establish a substantial, particularized need for access to mental health
records, there must be some evidential showing that connects the alleged
mental illness to the victim’s inability to perceive, recall, or recount the events
of the alleged assault, or a proclivity to imagine or fabricate them -- the sole
permissible purpose for which access may be granted. A generalized statement
that a victim is “crazy” is insufficient to establish the need for the records;
there must be some persuasive evidential showing to establish substantial
need. Seeking such records in the hopes of impeaching a victim with
inconsistent statements will never justify access. Under certain circumstances,
experts in the applicable field might establish the relationship between the
alleged mental illness and a victim’s inability to perceive, recall, or recount the
events of the alleged assault (or as defendant suggests here, a mental condition
that causes a victim to fabricate or imagine events). In other words, a
persuasive evidential showing to establish substantial need may, under certain
scenarios, include opinions from mental health experts.
Turning to the requirement that the information sought be not only
relevant, but also material, we note that evidence is relevant if it has “a
32 tendency in reason to prove or disprove any fact of consequence to the
determination of the action.” N.J.R.E. 401. “[T]he ‘probative value’ of
evidence is determined by ‘its tendency to establish the proposition that it is
offered to prove.’” State v. Perry, 225 N.J. 222, 237 (2016) (quoting State v.
Garron, 177 N.J. 147, 167 n.2 (2003)). To be relevant, the alleged mental
illness of a sexual assault victim must have a “tendency in reason to prove or
disprove” an ability to perceive, recall, or recount the alleged assault, or a
proclivity to imagine or fabricate it.
Materiality, in turn, “looks to the relation between the propositions that
the evidence is offered to prove and the issues in the case.” State v. Williams,
240 N.J. 225, 236 (2019) (quoting 1 McCormick on Evidence § 185, at 994
(7th ed. 2013)). “A material fact is one which is really in issue in the case.”
State v. Buckley, 216 N.J. 249, 261 (2013) (quoting State v. Hutchins, 241 N.J.
Super. 353, 359 (App. Div. 1990)). Just as a victim’s general ability to
perceive, recall, or recount an alleged assault may be relevant evidence of a
victim’s alleged mental illness, it may be material to the limited extent that it
calls into question the accuracy of a victim’s version of events or, more
fundamentally, whether the events that a victim alleges even took place.
33 The final showing that a defendant must make to prompt a court to
review a victim’s mental health records in camera is that the information
sought cannot be obtained through less intrusive means.
2.
If a defendant satisfies the three-part discovery standard detailed above
by a preponderance of the evidence, then the defendant is entitled to have a
judge conduct an in camera inspection. The court shall enter an order directing
disclosure of the records under the appropriate circumstances. We reject
defendant’s contention that defense counsel should be allowed to be present
during the in camera review.
During the in camera inspection, the judge must determine whether to
“pierce” the applicable mental health privilege, redact the pre-incident records,
and make them available under a protective order. We review here the
standard for making that determination.
N.J.R.E. 534 addresses the mental health service provider-patient
privilege. In this case, the evidentiary rule would govern communication
occurring before the alleged sexual assault. Under subsection (b), “[a] patient
has a privilege to refuse to disclose in a proceeding, and to prevent any other
person from disclosing confidential communications, as defined in [N.J.R.E.
534](a)(1)].” But disclosure is permitted by waiver or when the “exercise of
34 the privilege would violate a constitutional right.” N.J.R.E. 534(g). Defendant
has such a constitutional right to present a meaningful defense to the charges
by making a good-faith request for pre-incident mental health records.
To “pierce” the mental health service provider-patient privilege, when a
defendant seeks access to pre-incident mental health records from a victim of a
sexual assault, the judge must balance a victim’s protections afforded under
the CVBR, VRA, SAVBR, and N.J.R.E. 534 against a defendant’s
constitutional right to present a meaningful defense. If a defendant proceeds to
this point in the process, that defendant has already made a preliminary
showing of substantial need for the information, that it is purportedly relevant
and material, and that it cannot be obtained through less intrusive means. To
“pierce” the privilege, the only thing left for the judge to do is identify whether
there exists information in the records that pertains to a victim’s ability to
perceive, recall, or recount the alleged assault, or, as defense counsel
represented at oral argument, that relates to whether the victim imagined or
fabricated the incident.4
4 Although defendant here is not seeking post-incident mental health records, if they exist -- where the victim may have, for example, sought counseling about the alleged sexual assault -- we note that under N.J.R.E. 517, the “victim counselor privilege” would apply to such a request. As to acts of violence -- which include sexual assault, see N.J.R.E. 517(b)(a); N.J.S.A. 52:4B-11(b)(9) -
35 If the judge concludes that the N.J.R.E. 534 privilege should be
appropriately “pierced,” then the judge must redact any non-relevant and non-
material information from the records. That is, the judge must redact any
information in the records that does not have a “tendency in reason to prove or
disprove” a victim’s ability to perceive, recall, or recount the alleged assault ,
or that the victim otherwise imagined or fabricated the incident. Any other
communication shall not be disclosed.
Once the judge determines that the records, as redacted, are discoverable
under the framework established here, then, solely for discovery purposes, the
records should be produced under a protective order to be approved by the
judge, with an opportunity for interlocutory appellate review before disclosure
occurs.5
- the Legislature declared that “it is the public policy of this State to extend a testimonial privilege encompassing the contents of communications with a victim counselor and to render immune from discovery or legal process the records of these communications maintained by the counselor.” N.J.R.E. 517(a)(e).
5 Admissibility into evidence is not before us since the primary focus at this point is pre-trial access.
36 B.
From a practical perspective, a defendant can forego formal motion
practice and in good faith seek access to pre-incident mental health records of
a victim of a sexual assault. The informal route, which would be without a
motion, could expedite resolution of the request and avoid expense. If a
defendant chooses to proceed informally, a victim is still entitled to notice by
the county prosecutor’s office and must have an opportunity to be heard with
or without independent counsel. Like the formal route, informal requests for
mental health records should be rare.
To proceed informally, defense counsel can in good faith seek pre-
incident mental health records by sending a letter to an assistant prosecutor.
The letter should (1) identify with particularity the kinds of records sought; 6
(2) show substantial need tied directly to the victim’s ability to perceive,
recall, or recount the facts of the alleged incident, or to the victim’s likelihood
to fabricate or even imagine the incident altogether; and (3) explicitly state
that sexual assault victims have a statutory right not to “participate in any
investigation of the assault.”
6 We do not expect the letter to identify the institution where or doctor from whom a victim received treatment. 37 A victim would receive notice of the letter from the county prosecutor’s
office, likely from a victim-witness coordinator, who must say to a victim,
“You are under no obligation to tell us whether you received treatment and
may respond with no comment, or you may explicitly choose not to respond .”
If a victim chooses to participate by acknowledging that pre-incident treatment
occurred, and wishes to voluntarily make available the records, then the victim
could sign appropriate releases to allow access.
Again, we leave a defendant with discretion to determine which route to
take. We reiterate that we discourage routine requests in all cases, and that we
expect such requests will be rare.
Turning to the request made in this case, we note that appellate review of
a trial court’s discovery order is ordinarily for abuse of discretion. A.B., 219
N.J. at 554. An abuse of discretion occurs by making decisions “without a
rational explanation, [that] inexplicably departed from established policies, or
[that] rested on an impermissible basis.” Flagg v. Essex Cnty. Prosecutor, 171
N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. INS, 779 F.2d 1260, 1265
(7th Cir. 1985)).
Here, however, it is unfair to focus on whether the judge abused her
discretion because we have since chosen to “exercise [our] constitutional
38 authority over the practices and procedures of our courts . . . to ensure greater
fairness in the administration of justice.” Orientale v. Jennings, 239 N.J. 569,
592 (2019) (discussing the powers conferred by N.J. Const. art. VI, § 2, ¶ 3).
We do so by establishing a new procedural and analytical framework
applicable to a defendant’s request for a victim’s pre-incident mental health
records. In short, we hold here that a heightened discovery standard governs a
defendant’s motion -- of which the victim must receive notice from the
prosecutor’s office -- for pre-incident mental health records from a sexual
assault victim.
We therefore vacate the trial court’s orders and remand for further
proceedings to be guided by the procedural and analytical framework set forth
in this opinion. We offer the following guidance based on the record in this
case to date.
Here, defendant, the sister, the sister’s boyfriend, and, indirectly,
defendant’s girlfriend, made general references to the victim’s mental health
history, such as her alleged “suicidal ideations.” Defendant divulged to
detectives that the victim was “in [a] psychiatric home before, she went crazy
before . . . something happened to her . . . [and] they evaluated her . . . a few
years ago.” The sister’s boyfriend told detectives the victim “has been suicidal
for a while . . . if you dig, you will see it.” There must be something more
39 than what is currently in the record before us to establish substantial need for
access to the mental health records of a sexual assault victim.
Defendant seemingly suggests that the victim’s purported pre-incident
mental health condition may have caused her to imagine or fabricate the
alleged incident. Defendant asserts she wiped his DNA from where he had
cried on her shoulder and placed it on her underwear. To establish substantial
need under that circumstance, he must do more than make a bald assertion:
defendant must make an evidential showing that her pre-incident mental health
condition is connected to her inability to perceive, recall, or recount the events
of the alleged assault, or to a proclivity to imagine or fabricate the alleged
assault. No connection was presented to the judge.
On remand, the defense team can supplement the record to establish the
requisite substantial, particularized need by connecting the victim’s purported
mental illness to her inability to perceive, recall, or recount the events of the
alleged assault, or her proclivity to imagine or fabricate them, or by
developing more specific evidence of pre-incident mental illness. We do not
expect a defendant to identify the precise institution or mental health provider,
but for a defendant to preliminarily satisfy the heightened discovery standard,
more is required than an assertion, like defendant’s, that “something happened
to [the victim]” and that “[the victim] went crazy before.”
40 As to the final showing to obtain in camera review, we cannot determine
on the sparse record before us whether there are less intrusive means for
assessing the victim’s ability to perceive, recall, or recount the alleged assault,
or proclivity to imagine or fabricate the alleged assault, other than through
inspection of the victim’s pre-incident mental health records. Towards that
end, the defense team can probe more about whether family members and
friends have additional knowledge of the victim’s alleged mental illness.
Further, as the witness statements reflect, the defense might be able to utilize
the victim’s text messages or social media postings as a less intrusive means.
VI.
For the reasons set forth above, the orders under review are vacated, and
the matter is remanded for further proceedings consistent with this opinion.
CHIEF JUSTICE RABNER; JUSTICES PATTERSON, SOLOMON, and PIERRE-LOUIS; and JUDGE SABATINO (temporarily assigned) join in JUSTICE FASCIALE’s opinion.
Related
Cite This Page — Counsel Stack
State v. Terrell M. Chambers, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-terrell-m-chambers-nj-2023.