N.J. SUPERIOR COURT, APPELLATE DIVISION

State v. Cohen

CRIMINAL LAW — Discovery

New Jersey Law Journal

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State v. Cohen, A-3682-08T4; Appellate Division; per curiam; decided July 2, 2009; approved for publication June 13, 2013. Before Judges Carchman, R.B. Coleman and Sabatino. On appeal from the Law Division, Mercer County, Indictment No. SGJ568-08-5. [Sat below: Judge Council.] DDS No. 14-2-0282 [30 pp.]

By leave granted, the state appeals from the protective order permitting defendant discovery of the alleged child pornography that provides the underpinnings for the criminal charges lodged against him.

In the protective order, Judge Council balanced the protected rights of a defendant to discovery under Rule 3:13-3 with the legitimate policy of minimizing the dissemination of child pornography to ensure that the victims of such unlawful conduct are not re-victimized through court-sanctioned access.

Since the defense is entitled to inspection and testing of the discoverable materials, the sole issue is which party maintains control of the discovery. The state is willing to make the materials available to defendant but asserts that it must retain control, even during the discovery process, to minimize the possible improper dissemination of child pornography. Defendant claims that the order addressed the state's concerns and the defense should control the discovery during the pendency of the case.

The protective order included detailed provisions and safeguards for the defense's handling of the computer images and data. The order requires the state to provide two copies of the computer images and data to defense counsel and that such material not be "copied, reproduced, distributed, disseminated, electronically stored and/or electronically uploaded or downloaded" or used for any purpose other than the prosecution or defense of this action. The defense must use a dedicated, non-networked computer to view the materials and keep the materials and the computer locked and secure when not in use. The materials must be conveyed to and among defense counsel and defense experts by hand-to-hand delivery, and at the conclusion of the matter, the materials be transferred back to the state in the same manner. Anyone viewing the materials on behalf of the defense would be subject to and furnished with the order, and any retainer agreement between defense counsel and their experts would include a provision certifying that the expert acknowledges the terms of the order. Defendant would not be permitted to view the materials outside the presence of defense counsel. Finally, at the conclusion of the matter, the parties are to agree on specific procedures to ensure that the materials are completely and irretrievably deleted from any computers on which the materials were viewed.

Held: The trial judge fashioned a protective order that, by its terms, provided for defendant's discovery of the relevant materials — child pornography — but established strict guidelines that limited access and use of the materials. While recognizing the state's concerns about the possibility of misuse of the materials, the order establishes procedures to minimize such eventuality. Accordingly, defendant is entitled to discovery under the terms of the protective order.

This appeal requires balancing of the competing interests of a criminal defendant who seeks discovery of materials that go to the essence of the underlying charged offenses with the public interest in prohibiting the dissemination of the same materials — contraband child pornography.

The state argues that child pornography is contraband, and any dissemination of it, even in discovery, is presumptively illegal. Recognizing that there must be an accommodation for discovery, the state contends that the court should only provide access to the images at a state facility or on a state-issued computer, where the state would maintain control over the pornography and eliminate any risk that the images would be disseminated to unauthorized third parties or to the public.

Defendant responds that his ability to prepare a defense will be severely impeded by not having total access to the materials. He argues that the defense must have unfettered access to the images in order to evaluate them and resolve such questions as who created the images, when were they accessed, whether they are, in fact, pornography and whether the images are of real children, as opposed to virtual images or adults dressed as children. Defendant explains that the process by which an expert analyzes and evaluates the images requires equipment, software and an entire forensics laboratory, which would be impractical for defendant to import to a state facility. Defendant also contends that his counsel and experts need continuous access to discovery in preparing for trial and during the trial itself.

The state urges that the panel adopt the principles enunciated in the federal Adam Walsh Child Protection and Safety Act of 2006 to inform the determination of whether to require that the images be copied for defendant.

Because ultimately the materials will be presented in court, it is unfair to preclude defendant from having copies of them to aid his counsel and experts in preparing his defense. Significantly, the expert analysis may prove to be ongoing, as the pretrial and final phases of this matter develop, and particularly as video and images and contested issues become a matter of adversarial judicial focus. Although the state has offered to supply access to the images on an "as-needed" basis, that is too cumbersome. In addition, the state itself will have continuous and unfettered access to the materials. Under the court rules, the defense is entitled to equivalent access as well. In balancing the rights of a defendant to prepare a defense against the need to protect a child victim from further dissemination of the materials, a protective order can be fashioned to safeguard the victim without impeding the rights of defendant. That balance was achieved here.

The protective order here is reasonable and accomplishes the goal, which is to ensure that the child pornography is not disseminated.

For appellant — Anthony A. Picione, Deputy Attorney General (Anne Milgram, Attorney General; Picione and Robert C. Rowbotham II, Deputy Attorney General, of counsel; Johanna Barba Jones, Deputy Attorney General, on the brief). For respondent — Mark H. Tuohey III (Vinson & Elkins) of the D.C. bar, admitted pro hac vice (Rogut McCarthy and Tuohey; Tuohey, Andrea L. Surratt (Vinson & Elkins) of the D.C. bar, admitted pro hac vice, Daniel J. McCarthy and Colleen E. Patterson on the brief). For amicus curiae Association of Criminal Defense Lawyers of New Jersey — Gibbons (Lawrence S. Lustberg on the brief).

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