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.
