Major case that every computer crime attorney should read July 2, 2009Posted by jefhenningeresq in Unpublished Cases.
Tags: Attorney, child pornography, Crime, Law, Lawyer, New Jersey, News
If you are an attorney that will ever even think about taking a child porn case, you need to have this case in your tool box. For years, prosecutors have resisted turning over images to defense and their experts. Finally, a court wakes up and has some sense.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-3682-08T4
STATE OF NEW JERSEY,
Argued June 1, 2009 – Decided
Before Judges Carchman, R. B. Coleman
On appeal from the Superior Court of New
Jersey, Law Division, Mercer County,
Indictment No. SGJ568-08-5.
Anthony A. Picione, Deputy Attorney General,
argued the cause for appellant (Anne Milgram,
Attorney General, attorney; Mr. Picione and
Robert C. Rowbotham, II, Deputy Attorney
Generals, of counsel; Johanna Barba Jones,
Deputy Attorney General, on the brief).
Mark H. Tuohey, III (Vinson & Elkins) of the District
of Columbia bar, admitted pro hac vice, argued the
cause for respondent (Rogut McCarthy and Mr. Tuohey,
attorneys; Mr. Tuohey, Andrea L. Surratt (Vinson &
Elkins) of the District of Columbia bar, admitted pro
hac vice, Daniel J. McCarthy and Colleen E. Patterson,
of counsel and on the brief).
Gibbons P.C., attorneys for amicus curiae Association
of Criminal Defense Lawyers of New Jersey (Lawrence S.
Lustberg, on the brief).
July 2, 2009
This appeal requires us to balance 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 trial judge
fashioned a protective order that, by its terms, provided for
defendant’s discovery of the relevant materials but established
strict guidelines that limited access and use of the materials.
We conclude that while the State of New Jersey’s concerns focus
on the possibility of misuse of the materials, the judge’s order
recognizes these concerns and establishes procedures to minimize
such eventuality. Accordingly, we conclude that defendant is
entitled to discovery under the terms of the protective order
By leave granted, the State appeals from the protective
order permitting defendant Neil Cohen discovery of the alleged
child pornography that provides the underpinnings for the
criminal charges lodged against him. While the State does not
dispute that defendant is entitled to discovery of such
evidence, it challenges the manner and methodology of
transmission and examination of the purported evidence.
In the carefully crafted protective order of March 23,
2009, 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 both the State and
defendant agree that the defense is entitled to inspection and
testing of the discoverable materials, the sole issue in dispute
is which party maintains control of the discovery while it is
being reviewed and tested by the defense. The State is willing
to make the materials available to defendant but asserts that it
must retain ultimate 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.
We briefly set forth the relevant facts informing our
consideration of the issues. In July 2008, New Jersey State
Police began investigating allegations that defendant, a former
State Assemblyman, had used his office computer to view child
pornography. Within a month, the police seized suspected
pornographic matter, including eleven computers from defendant’s
legislative office, and commenced a forensic examination of the
contents of the computer hard drives. The investigation and
examination sought to determine whether defendant had been
visiting child pornography sites. As part of their
investigation, officers entered web sites for child pornography
that had been accessed through the confiscated computers. The
investigation continued, and sixty-two images were transmitted
to and reviewed by the State’s expert, Dr. Robert L. Johnson.
On December 17, 2008, defendant was indicted by the State
Grand Jury for second-degree official misconduct, N.J.S.A.
2C:30-2; second-degree endangering the welfare of a child
(reproducing child pornography), N.J.S.A. 2C:24-4(b)(4); seconddegree
endangering the welfare of a child (disseminating child
pornography), N.J.S.A. 2C:24-4(b)(5)(a); and fourth-degree
endangering the welfare of a child (possessing child
pornography), N.J.S.A. 2C:24-4(b)(5)(b).
Discovery commenced, and on March 10, 2009, the judge
ordered the State to produce copies of all the computer images
and data obtained during the investigation. The State moved for
reconsideration and for a stay. On March 23, 2009, the judge
denied the State’s motions, but granted an extension for
production of the images until April 2, 2009. The judge also
entered a protective order, which included detailed provisions
and safeguards for the defense’s handling of the computer images
and data. Included were limitations on those having access to
the materials and further provisions regarding access during the
The order contains thirteen decretal paragraphs.
summarize, 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
A copy of the order is attached to this opinion as Appendix A.A-3682-08T4
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.
The State, thereafter, moved for leave to appeal and for a
stay pending the outcome of the interlocutory appeal. We
granted both motions and ordered the appeal accelerated. On
April 23, 2009, while the appeal was pending, the State offered
a representative bring the contraband to
defense counsel and/or their representatives
to view at their offices, but on a Stateowned
computer that could be sanitized
afterward. Both the images and the computer
would be retained by the State except when
being actually viewed.
That offer remains extant.
On appeal, the State raises two issues
err by ordering the State to reproduce and deliver the evidence
of child pornography to defendant; and 2) was the court’s
protective order sufficient to ensure that the child pornography
would not be disseminated.
As we noted, the focus of the State’s primary argument is
that the court erred by ordering it to deliver images of child
2: 1) did the court
granting leave to appeal and the stay.
The State raised two other points that are rendered moot by ourA-3682-08T4
pornography to the defense. The argument is premised on the
theory that if the images are released to the defense, the State
can no longer be assured that the images will not be illegally
reproduced and disseminated, which would cause harm to any child
depicted in the pornography.
Rule 3:13-3(c) provides in part:
Discovery by the Defendant. The prosecutor
shall permit defendant to inspect and copy
or photograph the following relevant
material if not given as part of the
discovery package under section (b):
(1) books, tangible objects, papers or
documents obtained from or belonging to the
. . . .
(3) results or reports of physical or mental
examinations and of scientific tests or
experiments made in connection with the
matter or copies thereof, which are within
the possession, custody, or control of the
. . . .
(5) books, papers, documents, or copies
thereof, or tangible objects, buildings or
places which are within the possession,
custody or control of the prosecutor;
Rule 3:13-3(f) permits the court to issue a protective order,
which denies, restricts or defers inspection of certain evidence
so as to protect witnesses and others from harm or threats of
harm. Rule 3:13-3 does not contain a specific restriction for
disclosure of child pornography; however, the comment to Rule
3:13-3(f) provides examples of when discovery may be restricted,
including: the identity of confidential informants;
surveillance sites; parole records; school records; and even, to
certain extents, instances when a claim of privilege will be
waived at trial. Pressler, Current N.J. Court Rules, comment 6
on R. 3:13-3(f) (2009).
We have invoked the protective provisions of Rule 3:13-
3(f), when circumstances warrant such limitation on discovery.
In State v. Cusick, 219 N.J. Super. 452, 455-59 (App. Div.),
certif. denied, 109 N.J. 54 (1987), we affirmed the denial of
release of confidential DYFS records of a child victim of sexual
abuse, which the defendant claimed he needed to prepare a
defense. The trial court found that the records were
confidential, that disclosure was not necessary for resolution
of any issue in the case and that most of the information was
available from other sources. Id. at 457. We balanced the
defendant’s discovery needs against the public policy of keeping
DYFS records confidential and found that disclosure was not
necessary. Id. at 459.
Similarly, in State v. Krivacska, 341 N.J. Super. 1, 35
(App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied,
535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002), we
restricted access of the defendant to the school records of a
child victim of sexual abuse, stating that it was sufficient for
the judge to view the records in camera. We noted that when
restricting discovery, a court must perform a balancing test to
determine whether the needs of the defendant to prepare a
defense outweigh the victim’s right to privacy. Ibid.
Two critical distinctions are apparent in Krivacska and
Cusick. In those cases, the defendants were denied discovery of
confidential material, whereas here, the State agreed to provide
access to the evidence so long as it is viewed while under the
control of the State. More important, however, the restricted
discovery in Krivacska and Cusick did not form the basis of the
complaint against the defendants and were not proofs anticipated
to be presented by the State at trial. Here, the discoverable
material sought by defendant is the critical evidence supporting
the allegations of the criminal charges.
The Court has demonstrated a keen sensitivity to protect
child victims involved in court proceedings. For example, in
preserving the anonymity of children who testified regarding
sexual abuse, our Supreme Court recognized that “protection of
the children’s physical and psychological welfare constitutes a
compelling state interest.” Application of VV Pub. Corp., 120
N.J. 508, 512-13 (1990) (internal quotations omitted); see also
N.J.S.A. 2A:82-46. A similar state interest is present here,
and no one can legitimately question the long-term detrimental
effects of child pornography on the victims. New York v.
Ferber, 458 U.S. 747, 760 n.10, 102 S. Ct. 3348, 3356 n.10, 73
L. Ed. 2d 1113, 1125 n.10 (1982) (stating that the threat to a
victim of child pornography is even greater than the threat of
sexual abuse or prostitution, because the “child’s actions are
reduced to a recording” and the child “must go through life
knowing that the recording is circulating within the mass
distribution system for child pornography”).
Relying on this unassailable premise, 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 asserts that there are numerous CDs, DVDs and
hard drives containing a voluminous amount of material created
by government agents in the discovery phase of this litigation.
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. Moreover, defendant represents that the
expert he has chosen is out-of-state and cannot be required to
come to New Jersey each time it is necessary to view the images.
No reported New Jersey authority has considered the issue
of the discovery of child pornography, but other jurisdictions,
including the federal courts and Congress, have addressed the
extend to an out-of-state expert in his or her office, or to
defendant’s out-of-state counsel. At oral argument, defendant
suggested that he is considering retention of a local expert.
It is unclear whether the State’s offer of a computer wouldA-3682-08T4
In 2006, Congress enacted the Adam Walsh Child Protection
and Safety Act of 2006, (the Act), Pub. L. No. 109-248, §
501(1)(B), 120 Stat. 587, 623 (2006). The purpose of section
504 of the Act is to amend 18 U.S.C.A. § 3509 by adding
subsection (m), which prevents the unauthorized release and
redistribution of child pornography that the government has
gathered for use in a criminal trial. 18 U.S.C.A. § 3509(m)
Prohibition on reproduction of child
(1) In any criminal proceeding, any property
or material that constitutes child
pornography . . . shall remain in the care,
custody, and control of either the
Government or the court.
(2)(A) Notwithstanding Rule 16 of the
Federal Rules of Criminal Procedure, a court
shall deny, in any criminal proceeding, any
request by the defendant to copy,
photograph, duplicate, or otherwise
reproduce any property or material that
constitutes child pornography . . . so long
as the Government makes the property or
material reasonably available to the
(B) For the purposes of subparagraph (A),
property or material shall be deemed to be
reasonably available to the defendant if the
Government provides ample opportunity for
inspection, viewing, and examination at a
Government facility of the property or
material by the defendant, his or her
attorney, and any individual the defendant
may seek to qualify to furnish expert
testimony at trial.
The constitutionality of the Act has been upheld in United
States v. Shrake, 515 F.3d 743, 745-46 (7th Cir. 2008), and
United States v. Johnson, 456 F. Supp. 2d 1016, 1019 (N.D. Iowa
2006) (holding that the Act is constitutional, because it
restricts who may control the images but not what the defendant
may introduce at trial). However, courts have been indulgent in
permitting defendants access to materials when restrictions also
preclude or significantly burden a defendant’s ability to mount
a defense. In at least one federal case, the court has
interpreted the “ample opportunity” requirement of the Act to
permit disclosure of the evidence when a defendant established
that analysis of the material at a government facility would
compromise the expert’s effectiveness. See United States v.
Knellinger, 471 F. Supp. 2d 640, 647 (E.D. Va. 2007).
The State’s expressed concern about the propriety of
dissemination of the alleged child pornography to defendant,
citing the limitations expressed in the Act, warrants further
discussion. We first note that the Act is not authoritative for
state criminal proceedings. State ex rel. Tuller v. Crawford,
211 S.W.3d 676, 679 (Mo. Ct. App. 2007) (noting that 18 U.S.C.A.
§ 3509(m) is a procedural provision solely applicable to
proceedings in the federal court). Moreover, when the question
has arisen in state courts as to whether the defense counsel,
when possessing child pornography in connection with preparing a
defense, could be prosecuted for violation of the Act, the
courts have held that the Act did not permit such prosecution.
State v. Allen, No. E2007-01018-CCA-R3-CD, 2009 Tenn. Crim. App.
LEXIS 114 at 17-18 (Tenn. Crim. App. Feb. 12, 2009)
Brady, 894 N.E.2d 671, 679 (Ohio 2008) (holding that the Act
allowed for ample opportunity for inspection by a defense
expert), cert. denied, 2009 U.S. LEXIS 3564, 77 U.S.L.W. 3633
(U.S. May 18, 2009) (No. 08-9139). We agree that the exercise
of rights of discovery, critical rights afforded to a criminal
defendant, see State v. Broom-Smith, 406 N.J. Super. 228, 239
(App. Div. 2009); State v. Gilchrest, 381 N.J. Super. 138, 146-
47 (App. Div. 2005), cannot give rise to a criminal offense of
improper possession when appropriate use of the materials is
sanctioned by court rule or an order of a court.
Prior to passage of the Act, some federal courts had
already denied defendants copies of child pornography evidence,
stating that it was contraband. In United States v. Kimbrough,
69 F.3d 723, 731 (5th Cir. 1995), cert. denied, 517 U.S. 1157,
116 S. Ct. 1547, 134 L. Ed. 2d 650 (1996), the court held that
child pornography is “illegal contraband,” which should not be
4; State v.
purposes only. R. 1:36-3.
This decision is unpublished and we cite it for informationalA-3682-08T4
copied or distributed in discovery. Moreover, the defendant’s
ability to inspect the evidence at government offices was
sufficient to protect his rights. Ibid. The Fifth Circuit
Court of Appeals rejected the defendant’s argument that the
quantity of material, and the defendant’s not having a copy of
it, prejudiced his ability to make an adequate defense. The
court stated that the defendant’s need for substantial time to
view the material was irrelevant and did not establish
The Eighth Circuit Court of Appeals, in United States v.
Horn, 187 F.3d 781, 792 (8th Cir. 1999), cert. denied, 529 U.S.
1029, 120 S. Ct. 1442, 146 L. Ed. 2d 330 (2000), affirmed the
district court’s denial of a copy of a videotape to the
defendant, because it was “prima facie contraband.” On appeal,
however, the defendant argued for the first time that he needed
the copy so that the publisher of the film could ascertain the
ages of the children. The court stated that had defendant
advanced that argument at trial, the court might have been
required to grant the defendant’s motion for the material to be
copied. Id. at 792-93.
In United States v. Husband, 246 F. Supp. 2d 467, 468-69
(E.D. Va. 2003), the court relied on Kimbrough and Horn in
finding that a videotape was contraband and therefore did not
require that copies be made. However, Husband involved only one
videotape as opposed to potentially thousands of images that
might exist in a case involving computer digital images.
Notwithstanding the Act and the limited federal decisions
restricting discovery, the majority of state courts that have
addressed this issue have required the prosecution to reproduce
the materials for defendant’s use and control.
In Westerfield v. Superior Court, 121 Cal. Rptr. 2d 402,
403 (Cal. Ct. App. 2002), the prosecution restricted discovery
by permitting the defendant to view the images only in the
presence of law enforcement officers in the FBI’s offices and
had refused to make copies of the child pornography. The
defendant moved to permit copying of the images so that his
attorneys could view them privately, to speak confidentially
about them and to submit them for examination by experts. The
trial court denied the defendant’s motion, noting that the
prosecution permitted defense counsel’s unfettered access to the
images and removal of law enforcement from the room while the
images were being examined. On appeal, the court stated that
nothing in the child pornography statute supported the view that
the California Legislature intended that use of the images to
prepare a defense would qualify as disseminating the material in
violation of the law. Id. at 404.
The Westerfield court also found that the prosecution’s
interpretation of the statute not only “exalts absurdity over
common sense, but it is also logically flawed.” Ibid.
Requiring defense counsel to view thousands of images and commit
them to memory impeded the effective assistance of counsel. Id.
In Cervantes v. Arizona, 76 P.3d 449, 454-55 (Ariz. Ct.
App. 2003), review denied, 2004 Ariz. LEXIS 32 (Ariz. Mar. 16,
2004), the Arizona Court of Appeals rejected a restriction on
alleged child pornography images being viewed only at a state
facility. Instead, it ordered their release to the defendant
because the discovery rules did not contain an exception when
the evidence sought was contraband, and the State had not
demonstrated why the court should impose a restriction. If a
court decided to restrict viewing of evidence, the Arizona rules
required imposing the “less restrictive alternative.” The court
stated that a protective order would have been less restrictive
than requiring defense counsel to view the evidence at the state
facility. Id. at 456. The Arizona court distinguished Horn,
Kimbrough and Husband, as those cases involved a determination
as to whether any error that occurred had been harmless, and in
at least one instance, the State had permitted the defense
counsel to view the material in his office. The court opined
that by holding that contraband could not be distributed for
purposes of preparing a defense, those courts had misstated the
rule. Id. at 455-56. The court concluded that where there was
no evidence that defense counsel would use the materials
improperly, the materials must be reproduced. Id. at 457.
In Washington v. Boyd, 158 P.3d 54, 59 (Wash. 2007), the
Washington Supreme Court clarified that
the burden is on the State to establish, not
merely claim or allege, the need for
appropriate restrictions. The defendant
does not have to establish that effective
representation merits a copy of the very
evidence supporting the crime charged.
In Boyd, the court advocated the use of protective orders
to safeguard the interests of the victims. Id. at 62. Some of
the limitations the court addressed to protect the victims were:
that the defendant may only view the material under defense
counsel’s supervision; that defense counsel is obligated to be
personally and professionally responsible for any unauthorized
distributions of or access to the evidence; that access by noncounsel
should be preceded by court order; that evidence must be
secured and inaccessible to anyone other than defense counsel;
that evidence has to be promptly returned at the end of the
criminal proceeding; that access to the material may only be for
purposes of defending the action; that a “firewall” must be
erected between the Internet and any computer used to access the
materials; and that the computer should be cleared of evidence
or its traces before being made accessible for other purposes.
The court in Boyd noted that allowing the defendant copies
of the evidence made sense, because the materials would “be
presented in open court, referenced in the examination and
testimony of witnesses, and discussed in opening and closing
statements.” Ibid. The court stated that “[e]ven if the right
to a fair trial could be satisfied while denying copies only to
the defense, the cost to justice [under such a scheme] would be
disproportionate to the benefit.” Id. at 63. But see
State v. Ross, 792 So. 2d 699, 702 (Fla. Dist. Ct. App. 2001)
(relying on Kimbrough and finding no prejudice to defendant to
review the materials at a state facility).
The State urges that we adopt the principles enunciated in
the Act to inform our determination of whether to require that
the images be copied for defendant. The State contends that it
is not seeking to compromise defendant’s ability to formulate a
defense, but rather is requesting a protective order that
maintains the images in the custody of the State.
Defendant argues that the requirement that defendant’s
experts view the images at a State facility impinges upon
defendant’s right to utilize a defense expert whose identity is
not yet disclosed to the State. In support of this, defendant
cites State v. Mingo, 77 N.J. 576, 584-87 (1978), wherein the
Court observed that communication with an expert is an essential
aspect of the preparation of a defense and is protected by the
attorney-client and work-product privileges. Disclosure of the
identity of an expert should not be compelled unless that expert
is going to be a trial witness. Id. at 587; see R. 3:13-
We are of the view that requiring a defense expert to
appear at the State facility would interfere with defendant’s
privilege, because, even if safeguards are employed, there is a
substantial probability that the identity of the expert will
prematurely become known to the State. Even the State’s belated
offer of a computer raises similar concerns if the State
representative is required to bring the computer to the expert’s
We find compelling defendant’s argument that his defense
would be impeded by having to “import” the expert’s laboratory
to the government facility. The State contends that only sixtytwo
images have been forwarded to the State’s expert for
analysis. However, defendant correctly counters that thousands
of images were viewed from websites accessed by law enforcement
agents as part of the discovery in this litigation. In
addition, there is apparently no clarity regarding the ages of
the individuals in the images or whether the images were virtual
or depicted real people. The expert may have to perform a
lengthy analysis to determine whether the images are child
pornography and when the images were viewed. Such a process
could be cumbersome, if not impossible, for defendant’s expert,
if required to perform this analysis at the State facility.
Further, the State’s offer to provide a computer at the office
of “defense counsel and/or their representatives” does not solve
the problem but raises new ones.
The reasoning in Boyd is persuasive. Because ultimately
the materials will be presented in court
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
5, it is unfair to
other materials would be required at trial. We do not decide
here the issue of the manner and procedures to be utilized for
display or use of the materials at trial.
At oral argument, the State acknowledged that the images andA-3682-08T4
unfettered access to the materials. Under our 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.
In its second argument, the State contends that the
protective order is insufficient to ensure that the child
pornography will not be disseminated.
Judge Council painstakingly addressed the terms of the
protective order with the parties and ultimately entered an
order requiring the State to produce two copies of the “images
and data” for defendant, provided: the materials could not be
copied or reproduced; the materials could only be used in the
preparation of this case; the materials could not be disclosed
to any other person except defendant, his counsel and his
experts; defendant could only view the materials in the presence
of counsel; the order binds all parties involved in the
investigation, prosecution and defense of the matter; the
materials were hand-delivered; any computer that was used to
view the materials should not be connected to the Internet, a
network or a printer; the materials must be maintained by the
defense in a locked file; the materials should be returned at
the conclusion of the matter; the parties must destroy all
images and data from the computers; and the computers should be
overwritten in a manner to make the images irretrievable in the
Paragraph 2 of the protective order provided as follows:
(2) IT IS FURTHER ORDERED that pursuant to
R. 3:13-3(f), any and all images and data
turned over to defense counsel by the State
are not to be copied, reproduced,
distributed, disseminated, electronically
stored and/or electronically uploaded or
downloaded to any computer and/or electronic
storage device in any way, other than files
created by the computer(s) beyond the
control of the user to permit defense
counsel to view the images on the two (2)
dedicated computers under defense counsel’s
Paragraphs 11 and 12 provided as follows:
(11) IT IS FURTHER ORDERED that at the
conclusion of this matter, the parties shall
meet, agree upon and execute the specific
procedures which will result in the nonrecoverable
destruction of all images and
data provided under this order, and on all
computers and computer components used to
examine the materials . . . .
(12) IT IS FURTHER ORDERED that any and all
images and data remaining on any and all
computers and computer components utilized
to examine the materials provided under this
order shall be deleted and overwritten in a
manner rendering the images and data
completely irretrievable in the future.
As noted, in developing a protective order pursuant to Rule
3:13-3(f), the court must balance the rights of the defendant
against the needs of any person requiring protection.
Krivacska, supra, 341 N.J. Super. at 35.
The State objects to the protective order because:
paragraph 1 authorizes the manufacture and release of copies of
the images; paragraph 2 contains a tacit acknowledgement that
copies would be made on defense computers; no person was
expressly bound by the agreement other than defense counsel;
defense counsel did not assume professional responsibility for
the potential failure of their agents to adhere to the order and
did not agree to provide a final report on the manner in which
the terms of the order were respected; and law enforcement was
not permitted to confirm that all inadvertently duplicated data
was destroyed. The State requests that, at a minimum, the
protective order be revised to conform to the standards in Boyd.
Paragraph 2 does not present a replication problem, because
paragraphs 11 and 12 ensure that even if files are inadvertently
copied by the computer within the hard drive, they would be
destroyed at the end of the proceedings. Moreover, defense
experts are bound by the order because paragraphs 3 and 6 make
the order applicable to “any expert.” The judge correctly
acknowledged that defense counsel are professionals deserving of
the expectation that they will comply with the terms of the
protective order and treat the evidence with the utmost care.
An attorney “owes the duty of good faith and honorable dealing
to the judicial tribunals before whom he practices his
profession.” In re Turner, 83 N.J. 536, 539 (1980) (internal
citation omitted). See also RPC 3.4(c) (prohibiting a lawyer
from knowingly violating a court order).
There need not be additional references in the order to
defense experts, a report detailing how defense counsel complied
with the terms of the order or for law enforcement to ensure
compliance with the terms of the order. The order is
sufficiently protective of child victims because: the evidence
will only be used by defense counsel to prepare a defense; will
be on two dedicated computers that will not be connected to the
Internet, a network or a printer; will be kept in a locked file;
and will be returned to the State at the conclusion of the
proceedings. Non-compliance with this order exposes counsel to
both professional and judicial sanctions. We do not agree that
the protective order need track all of the provisions identified
in Boyd. The protective order here is reasonable and
accomplishes the goal, which is to ensure that the child
pornography is not disseminated.
During colloquy, the court suggested that the problems
would be solved if the State provided the defense with a
computer for viewing the materials, but the State rejected this
possibility. Subsequently, by letter dated April 23, 2009, the
State agreed to have a representative bring the images to
“defense counsel and/or their representatives,” to view at their
offices on a state-owned computer that would be retained by the
State except when the images were actually being viewed.
While the State’s offer resolves some of the issues, it
still leaves the discovery under the control of the State. The
need for defense counsel to have unfettered access to the images
and the need for defense experts to maintain anonymity will be
compromised by the presence of the State representative who
controls the computer.
The essence of the State’s position is premised on what
might occur if defense counsel did not carefully maintain the
discovery or if someone violated the order or inadvertently
failed to appropriately care for the discovery materials.
Hypothetical examples of misdeeds or human error abound on
either side of the issue, but the carefully crafted protective
order spells out the parameters of conduct. That should be
sufficient to guide the future course of discovery.
The competing interests that have been identified require a
careful balance. Neither side of this dispute has advanced a
position that represents anything less than a good faith effort
to respect and protect their stated interests. But we are
satisfied that the order in place provides a reasonable
accommodation of these interests, will ensure that defendant
receives appropriate discovery and will minimize the State’s
concern about dissemination and protection of the victims of