In the case of State v. R.W., 104 N.J. 14 (1986), the New Jersey Supreme Court set forth the standard for how trial courts should rule on an motion for a psychological (or psychiatric) evaluation of the child victim. The Court held that the moving party must establish a showing of substantial need. This means that there must be “some deviation from acceptable norms, such as an identifiable or clinical psychiatric or similar disorder, beyond the realm of those human conditions that ordinary experience would confirm as normal”. In other words, the defense needs to point to something for the court to hag its hat on. Fishing expeditions are not permitted.

Keep in mind that this case was from 1986. That was a world away from where we are now. Back then, the attitude was that only the most disturbed children see a psychologist or therapist of some sort. Now, child psychology and therapy is routine as is children on medication. Furthermore, there has been an explosion of children with “special needs” which ranges from mild cases of learning disabilities to severe cases of autism / autism spectrum disorder. Once again, school records and medical records will be key in developing the ammunition needed for such a motion.

The relationship between the alleged victim and defendant will also be key. The defendant or the defendant’s family may provide the information necessary for such a motion. However, where the defendant is a complete stranger, it will become more difficult. Not every child is brought to a psychologist for treatment. Some go undiagnosed. Nevertheless, witnesses that have interacted with the child along with the video of the child’s statement could contain important clues. If something seems off to you and/or others that know the child, you could consider having an expert review the material and witness statement to determine if it is possible that the child suffers from one disorder or another. Most experts do not like to go out on a limb like this because they want to protect their credibility. However, they report could indicate that they witnessed various issues with the child, that these issues could be signs of one disorder or another, and that further examination would be necessary to confirm. This should be supported with reference to research articles, DSM criteria and anything else that could support the expert’s opinion. While this may be difficult to pull off, it is certainly better than nothing at all.