I find these motions to be particularly interesting. While the technical name of the agency is now DCPP, myself along with almost everyone else, still refers to them as DYFS. In general, DYFS records are confidential pursuant to N.J.S.A. 9:6-8.10a(a) and thus, even the State will likely not have any records from DYFS. However, DYFS records can be provided to the Court and then given to the defense pursuant to N.J.S.A. 9:6-8.10a(b)(6). Any motion for these records should be filed with DYFS and the Prosecutor’s Office.

The primary case on this issue is horrible. State v. Cusick, 219 N.J. Super. 452 (App. Div. 1987), cert. Denied, 109 N.J. 54 (1987) held that in that case, the defense could have obtained the same information through other sources and that the information in the records would not have changed the outcome of the trial. While it is difficult to know exactly what records DYFS has without seeing them, in a child sex case there will clearly be disclosures by the child to a number of people in addition to interviews with other people. The child will likely be examined and undergo a psychological evaluation and subsequent counseling. How all of this is not relevant to the defense is beyond me.

Thus, the defense has to be prepared to argue that Cusick does not apply to this case. Instead, it should rely more on State v. L.P. Which ordered disclosure of the DYFS records. 270 N.J. Super. 429 (App. Div. 1994). Of course, in L.P., the defense was seeking evidence that the child recanted and it already had some evidence that this had occurred. Thus, it was far from a fishing expedition. In addition to arguing L.P. the defense needs to hammer home the right of confrontation which has changed dramatically since 1987. Furthermore, the research on coaching after the Kelly Michaels case has also changed the landscape of child sex crimes. Thus, for the Court to just hang its hat on Cusick is wrong but the defense also has to do its part as well.

If at least part of the defense theme relies upon coaching then just about everything DYFS did will be relevant. They are often intertwined with law enforcement and it must be argued that the defense cannot just have access to half the case. The child’s credibility can only be fully tested once all of the information from all sources is considered. What other ways can the defense possibly get access to DYFS case worker interviews, therapist’s notes and reports, psychological evaluations of the victim, etc? If the defendant in the criminal trial is also a defendant in the DYFS case then it must be shown that there is simply no harm in disclosure to a defendant who has already seen the records in the first place. The only one that is in the dark is you the defense attorney.

The other problem with Cusick is that it seems to focus more on admissibility than discovery. Of course, the discovery rules and the case law interpreting same indicates that there is not only a big difference but non-admissable discovery may lead to admissible discovery. Thus, this needs to be hammered home as well. A protective order can be entered to make sure that other than the defense attorney, no one else has access to these records. Thus, what is the real harm here? A number of attorneys in the DYFS case already have access to these records, what harm will one more do? Once the records are released to the defense attorney, the fight over their admissibility can be properly waged.

This same motion made in family court matters seems to be much more liberally granted. Of course, that is likely due to the fact that courts rely upon DYFS reports to make decisions as to custody and parenting time whereas the finder of fact in a criminal case, (the jury) will not be relying upon them.