Discovery of school records in child sex abuse cases in New Jersey
One possible way to attack the credibility of a child victim, especially an older one, is to gain access to school records. However, this presents a number of issues as the State does not have access to the records either. Thus, when filing a motion, the school board must be served in addition to the State. Especially these days, school records include records from many different sources including counslors and/or psychologists which thus involves a number of different issues. However, like any records that are sensitive in nature, the best way for a court to balance everyone’s interests is to have an in camera review of the records.
Of course, the defense should include a detailed analysis of what these records may show, why the defense believes that and how that is relevant to the facts of the case. Not only will this increase the odds of getting some or all of the records, it will allow the court to put everything into context and make it seem like you are not just going on a fishing expedition. Educating the court is always a good idea and motions are the best way to do that. This allows the court to better weigh in on plea negotiations, especially if the court was a skilled trial attorney or has seen some great legal battles play out in the courtroom.
Unless the primary defense theory involves the mental health status of the child victim, the defense may not have an expert on this issue. However, even if it does, one is not necessary for the court to review these records pursuant to State v. Krivacska, 341 NJ Super 1 (App. Div.) cert. Denied, 170 N.J. 206 (2001). The Court is more than capable of reviewing these records and figuring out what is relevant and what is not. Of course, this is where educating the court is helpful. Even if you had an expert on this issue, it may not be possible to get the expert to even write a general letter on this issue. Most do not like to get into hypotheticals. However, a letter summarizing findings in respected journals may be helpful from the court. This will of course alert the State that you have an expert.
If full access to these records are denied, the defense attorney should not assume that there is no way they will ever come up. Testimony during the trial may trigger a need for the court to examine these records. This was the issue in State v. VanDyke, 361 N.J. Super 403 (App. Div.). There, the defense attorney moved for an in camera review of school records during the trial and the court refused. The Appellate Division held that this was reversible error and that without these records, the defense was left with no ability to impeach the testimony of the victim’s mother.