Kenneth Vercammen is a Middlesex County Trial Attorney who has published 130 articles in national and New Jersey publications on Criminal Law, Probate, Estate and litigation topics.

He was awarded the NJ State State Bar Municipal Court Practitioner of the Year.

He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters.

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Kenneth Vercammen & Associates, P.C,

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Edison, NJ 08817,

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Friday, November 4, 2011

Victims Rights

Victims Rights

New Jersey Law on Victim's Rights State v. Giilchrist, Superior Court of New Jersey, Appellate Division 381 N.J.Super. 138 (N.J.Super.A.D. 2005)

Nature of the case:

Prior to his trial for rape, the defendant filed a motion seeking to compel the victim to submit to the taking of a photograph of the victim he allegedly raped. The trial court granted the motion but stayed the decision pending appeal. This was revised on appeal.

Ruling & Rationale:

The appellate court disagreed with the trial judge reasoning as follows:__Defendant claimed that in order for him to prepare for cross-examination of the victim, he needed the victim to pose for a photograph. He claimed this would impose "no material burden" on the victim because she would eventually need to confront him at trial.

Defense counsel argued the defendant "needs to have a view of her facial features in some form or fashion to determine if this is somebody who he knows, who he may have had some kind of exchange with in the past. There may have been or may not have been an incident. She may be a total stranger to him or she may be someone that he remembers from a past encounter". the victim objected to the defendant's motion and "expressed overwhelming fear that the giving of a photograph to the defendant would make it easier for the defendant to fulfill his earlier threats to find her and kill her."

The victim had been advised by law enforcement officials that the defendant had forgotten her face. The prosecutor argued that defendant did not have a "right to confront witnesses pretrial," and he stated that if defendant "wants a trial, that's no problem. We'll of course, bring her in for that purpose." The prosecutor further argued that "if they're going to ask the Prosecutor's Office to go and photograph this victim, make her feel arguably, make her feel like, you know, she's being processed, then the State's position is we, we really need to know why." While acknowledging that he was uncertain why defendant wants or needs M.C.'s photograph, the trial judge, nevertheless, granted defendant's motion, reasoning as follows: "Let's throw the law aside for a minute and let's be practical.

What's going to be more alarming to [the] victim, somebody standing in front of her house with a camera and when she opens the door, click, or kind of being explained to her that yes, ... this is what's going to happen. There's going to be a picture taken of you. The person will get to see you at trial anyway, but they want a picture of you to see if they ever had a confrontation with you in the past. I take it they're going to get a picture of her. She needs to live her life. She doesn't need to live her life in fear either. I don't know if something happened. I know the gentleman is charged with a brutal crime. I'm very mindful of that. But if they want to get a picture of her, ... they're going to get a picture of her. So I think why don't we just do this as easily .. as non-threatening to her as possible, other than having somebody flash a bulb in her face. I mean, there really is no law on this other than I don't think I could stop them from taking her picture if I wanted to."

The appellate court expressed distaste with the trial judge's desire to "throw the law aside" in an effort to achieve a practical solution. The court wrote that "a judge's role is circumscribed by the law.

A judge is not free to do whatever he or she thinks is best for a defendant, or a crime victim, without reference to controlling legal principles. To do so is to depart from his or her proper role as a judge." An analysis of the applicable law begins with the defendant's right to confront witnesses which, while important, is not absolute and in any case, "the ultimate goal of the Confrontation Clause 'is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination."

The right to question adverse witnesses "does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony." Pennsylvania v. Ritchie, 480 U.S. 39, 53, 107 S.Ct. 989, 999, 94 L. Ed.2d 40, 54 (1987). Defendant has failed to articulate any legitimate basis for obtaining the victim's photograph, and we conclude that neither the Sixth Amendment nor the Fourteenth Amendment requires the State to furnish him with her photograph. Should this matter proceed to trial, defense counsel will have an opportunity to cross-examine the victim regarding her credibility, including any motive to fabricate, and to explore any potential bias or prejudice. If it develops that defendant has had a "past encounter" with the victim, we are confident of the trial court's ability to address any evidentiary issues or other problems that may arise without jeopardizing defendant's right of confrontation and his right to present a complete defense. "Defendant's post-indictment right to discovery is automatic." "Nevertheless, criminal discovery has its limits." A significant limitation on a defendant's right to discovery is "the chilling and inhibiting effect that discovery can have on material witnesses who are subjected to intimidation, harassment, or embarrassment."

The Victim's Rights Amendment of the New Jersey Constitution mandates that "[a] victim of a crime shall be treated with fairness, compassion and respect by the criminal justice system." It also states that crime victims "shall be entitled to those rights and remedies as may be provided by the Legislature." N.J. Const. art. 1, ¶ 22. In 1985, the Legislature enacted the Crime Victim's Bill of Rights, N.J.S.A. 52:4B-34 to--38, which granted crime victims and witnesses certain rights, including the right to be treated with dignity and compassion, and the right to be free from intimidation. N.J.S.A. 52:4B-36(a), (c).

As part of its findings and declarations, our Legislature stated "that without the participation and cooperation of crime victims and witnesses, the criminal justice system would cease to function. The rights of these individuals should be given full recognition and protection." N.J.S.A. 52:4B-35.

And in sexual assault cases, the Court has recognized a special need to protect victims and witnesses from emotional trauma, embarrassment, and intimidation. State v. R.W., supra, 104 N.J. at 28 (finding that any possible evidentiary benefit to defendant from a court-ordered examination of a witness was outweighed by witness's right to privacy and public need to encourage victims of crimes to report and assist in prosecution of offenses). The trial court "failed to properly evaluate all of the relevant considerations". Here, any possible benefits to defendant from a court-ordered photograph of the victim are entirely speculative and are outweighed by other important considerations, including the victim's right to privacy; her right to be treated with fairness, compassion, and respect; her right to be free from intimidation; and the need to encourage crime victims to cooperate and participate in the criminal justice system.