Depending on the timing of the disclosure and the age of the victim, the medical examination may be important evidence for both sides of the case. However, the defendant does not have an automatic right to obtain its own medical examination. In State v. D.R.H., 127 NJ 249 (1992), the New Jersey Supreme Court set forth the criteria that needed to be shown before a trial court will order that the victim undergo a separate medical examination. The Court stated that the defendant must make a sufficient showing that its own examination can produce evidence that 1) has substantial probative value and 2) if admitted and believed by the trier of fact could refute or neutralize incriminating evidence or impugn the credibility of prosecution witnesses. The value must also outweigh the harm to the victim.

In the D.R.H. Case in front of the trial court, it seems that the defense was attacking the ultimate conclusion that the breaking of hymen was consistent with sexual abuse. Another examination would not have shed any additional light on this issue. The NJSC also noted that the defense made their motion years after the alleged abuse occurred so it didn’t seem likely that any additional evidence would be uncovered by a new examination at that point.

Thus, defense attorneys should file these motions right away but a report from the defense expert should either accompany the motion or be prepared to be filed in response to the State’s objection or else the motion may get denied. Of course, defense attorneys should not be careful not to show their hand to quickly. Depending on the discovery provided by the State (i.e the thoroughness of the State’s expert’s report) a new examination might not be necessary. If you file such a motion, the State will know that you have an expert and can prepare accordingly. If it is only the conclusion that you are attacking and not the physical findings, then a new examination might not reveal anything. Most defense experts are forensic experts, that is, they review the data provided and come up with a conclusion. They do not perform their own examinations. Thus, care should be taken to understand exactly what the defense will be and what needs to be done to achieve a good verdict.