Category Archives: Motions in Sex Crimes Cases
As if dealing with a child sex crimes case in New Jersey wasn’t challenging enough, N.J.R.E. 803(c)(27) makes life much more difficult for defense attorneys. Throwing the Constitution out of the window for these narrow class of cases, this rule states that the victim’s out of court statements to others is admissible. Thus, instead of the jury just hearing from the victim, the jury gets to hear from a a parade of witnesses about the alleged abuse. This can include any number of people including family members, medical personnel, teachers, DYFS workers, law enforcement, etc. Having these allegations repeated over and over again is devastating to the defense.
Luckily, there is some measure of sanity in the defense attorney’s best friend – Crawford. Crawford v. Washington changed criminal defense forever. Moving forward, all hearsay that is testimonial in nature is barred. This can have a big impact on an 803(c)(27) analysis. In deciding such a motion, the court will first determine if the statement is trustworthy. If it is, the analysis will then shift to determine if the statement is admissible pursuant to Crawford. The post-Crawford case law is extensive and cannot be reviewed here. However, the analysis should clearly start with whether or not the statement is testimonial and whether the victim will testify to the initial allegations.
Defense attorneys should review State v. Nyhammer, 197 N.J. 383 (2009) to see how not to confront one of these cases. That case involved the introduction of the child victim’s videotaped statement. Oddly enough, the defense did not argue that is was trustworthy. Thus, the first part of this analysis was rather easy. The victim testified but was apparently reluctant to get into the details of the allegations. On cross, the defense asked safe questions apparently scared to engage in vigorous cross of the victim. As a result, the Court held that the defendant was not denied his right to confrontation when he chooses not to cross examine the victim.
Thus, when attacking these issues, the defense attorney should consider each statement separately because the analysis for each one may be different. Unlike the defense in Nyhammer, the trustworthiness of the statement should also be hammered home. After all, if the statement is trustworthy, what is the defense? Next, a Crawford argument should be made as to each statement. Be mindful of cases that the State may use and have something ready to counter them. Also look to other states for guidance to support your arguments. Most importantly, don’t forget to raise these issues again at trial since something may occur that will chance the court’s prior ruling.
Although it has been almost 20 years since the case of Kelly Michaels, State v. Michaels, 136 N.J. 299 (1994) one cannot assume that Michaels issues are a thing of the past. I recently won a case involving Michaels type issues so it is sadly still on going. There are still too many detectives and prosecutors who want nothing more than to convict the defendant. For example, my case involved a child initially indicating that her father never did anything inappropriate to her and then an hour later (after having access to her mother and a DYFS case worker) she gives a story that is 180 degrees different. Even a layperson who has never watched one episode of Law & Order would knows that the first thing you would want to do is find out what happened. But of course, in my case, the question was never asked. The detective was seemingly very happy with this disclosure and not attempt was made to determine if the child was coached. Luckily, the client was never prosecuted and the DYFS case was dismissed on my motion.
Thus, the above case indicates that taint hearings and the defense of coaching should not be limited to just law enforcement personnel. Anyone having access to the child can coach the child. In another case I had, the child victim’s teacher was actually the wife of the investigating officer. The victim made a brief disclosure to her mother who called the police. However, the child was not interviewed until the next day. The officer then went home and discussed the case with his wife. Meanwhile, the child went home and as she indicated, “discussed it a lot” with her mom. The next day, the child spoke to the teacher first and was only then interviewed by the police. At that point, the child had a lengthy conversation with her mother and then the teacher. By the time she had spoken to the police the next day, her conversation was clearly suspect. Thus, defense attorneys need to have a broad scope when they file a Michaels motion because the taint may not always arise from law enforcement sources. This is just another reason why DYFS records are important.
Also keep in mind that the Michaels hearing will usually take place at the same time as the 803(c)(27) hearing. Again, this is one of the primary issues that makes the defense of child sex crime cases so unique. For the less experienced practitioner, these cases may be too difficult. However, the battle hardened lawyer only views them as challenging and what’s the point of being a top notch criminal defense attorney if you don’t enjoy a good challenge?
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.
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.
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.
Most defendants and their families simply cannot appreciate the amount of work that goes into the defense of a child sex abuse case in New Jersey. One of the reasons why there is so much work is because of the amount of motions involved. A motion is a legal request of the court to do something. The jury is the finder of fact but the judge controls the law. There are many requests that both sides can make in a child sex case, far more than just about any type of case.
These motions are important for a number of reasons. First, the Defendant’s life is on the line. A conviction will change his or her life forever. Second, the law on these case favors the prosecution. Because these cases could be so difficult for the State to try, the Constitution has been bended (some would say thrown out) to put both sides on an even playing field. However, I think the playing field is far from even. Thus, these motions are needed to help shape the trial for both sides. What evidence will be left in and what will be left out? All of this will be decided by way of motions.
Other motions help the defense gather more ammunition for trial. The State will rarely perform a full investigation. For example, we had a case where the child denied any wrongful contact with her father, our client. An hour later, after having access to her mother and a DYFS case worker, the child completely changed her story. You would think that the detectives would want to know why the story changed so dramatically and so quickly. Of course, such questions were never asked. The detective was seemingly pleased that the child made this disclosure period and she just acted like the first statement never happened. The motions unique to these cases will help the defense exclude testimony or gather new evidence to help destroy the State’s case.
It is these unique rules and the motions the accompany them that make it very important to find a lawyer that has experience with these cases. A lawyer can handle 1000 robbery cases successfully and still not be prepared for a child sex case. Unfortunately, some people base their decision on who had the lowest price and not who is the most qualified. Often times, the results are disastrous. If you or your loved one is facing a serious child sex abuse case in New Jersey, you want the case to be expensive! You want that lawyer to be compensated fairly. You want the lawyer to fight for you or your family member. Always remember that you get what you pay for. I don’t know too many lawyers that are going to file a ton of (quality) motions if they are not compensated accordingly or if they don’t even know what they are doing.
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.
In New Jersey, defense lawyers rarely file a motion for a bill of particulars. While it may be common in other states of Federal court, it is generally not an issue in New Jersey especially because the indictment mostly mirrors the statute. In sex crimes cases however, this motion is more common, especially in child sex abuse cases. Detectives rarely push child victims for great detail. Thus, the indictment may be very broad thus encompassing a wide range of dates and allegations. The case law on this issue provides guidance as to how to handle these issues.
In State in the interest of K.A.W. 104 N.J. 112 (1986) the New Jersey Supreme Court found that the defendant has the right to defend against accusations which includes the need for an indictment to let a person know of what he has been accused but that there is a concern that young children who have been victimized do not normally have specific recall of dates. As a result, upon motion for a bill of particulars, the Court can order the State to reinterview the child. This interview should supply dates or other reference points such as weather, seasons of the year, grade in school or events such as birthdays and weddings. If the State cannot do so, the indictment can be dismissed.
Obviously, a reinterview of the child can pay big dividends for the defense, especially if the child changes the story or if the dates supplied allow for a credible alibi defense. Despite the availability of such a motion, it does not mean that the defendant will get very specific information. In State v. C.H., 264 N.J. Super. 112 (App. Div. 1997), the court held that the child indicating that she was eight years old at the time of the abuse was enough notice for the defendant.