In this criminal case, defendant is charged with endangering the welfare of a child based on allegations involving the email transmission of images of child pornography. A discovery dispute arose after the State declined to provide defendant’s attorney with copies of the computer images, refused to allow defendant to view the images at all, and required the defense team to inspect the images only in the prosecutor’s office. Defendant filed a motion to compel the prosecutor to provide copies of the images. The trial court denied the motion and entered a Protective Order, allowing defendant and his defense team access to the images subject to two conditions: the images could only be viewed on a computer housed at a state facility and access would be allowed within forty-eight hours after each request for inspection. In fashioning the Protective Order, the trial court sought to strike a balance between defendant’s right under Rule 3:13-3 to discovery of the evidence against him in order to prepare a defense, and the State’s arguments that the images were presumptively contraband, and that the public interest required protection of the child victims’ rights to privacy and not to have the republication of images through state-sanctioned dissemination.
Access versus Protection: To advance the goal of providing fair and just criminal trials, we have adopted an open-file approach to pretrial discovery in criminal matters post-indictment. As codified, the New Jersey Court Rules presently demand that the State will provide an indicted defendant with pretrial access to the evidence against him. See R. 3:13- 3(b) (addressing indicted defendant’s right built into the criminal discovery rule, however, is a provision for protective orders to balance the defendant’s right to discovery and the State’s interest in protecting against certain harms. In exercising the flexibility afforded to trial courts through subsection (f), there is no doubt that the court should recognize the harm to child victims that can occur through unauthorized republication of the images involved. Sexual abuse of a child has been described by the highest court of the land as a most serious crime and an act repugnant to the moral instincts of a decent people. We are not compelled to follow the federal statutory approach (Adam Walsh Act) to the sharing of pretrial criminal discovery in matters involving computer images of child pornography.
A protective order, restricting access to the defense team (members of whom the State concedes can view the materials), can identify the safeguards necessary to ensure that the materials are not shared intentionally, or through accidental breach that is preventable, beyond the specific limits imposed on the defense. In order to guide courts in the analysis that is germane in these types of discovery disputes, the following process should be employed by the court. 1) At the outset, defense counsel will have the slight burden of requesting to have access to the computer images in their office. This request obligation is intended merely to identify which cases will require further discovery proceedings. The request need not demonstrate why counsel wants access in his or her office, and courts are not to require a showing of need by the defendant as to why the defense must view the material in his or her office. The defense is entitled to the discovery. It is not incumbent on the defense to explain why it will be inconvenienced in its preparation for trial by the State’s offer to allow the evidence to be viewed in a state facility. Imposing that burden on the defense subverts the open file approach to discovery in criminal trials. However, unless counsel affirmatively requests that copies be provided to use in preparation of a defense, counsel will presumably review the materials in a state facility. We choose this approach to make clear that the State need not automatically turn over alleged child pornography without the enhanced safeguards as follows. 2) After counsel files such a request, the court should schedule a case management conference, followed by a colloquy on the record. At the conference, defense counsel must demonstrate the ability to comply with the terms of a court-issued protective order designed to secure the computer images from intentional and unintentional dissemination beyond those individuals authorized by the court to make use of the material. As a starting point, we direct that the court’s protective order should closely track the following restrictions on the handling of computer images of alleged child pornography, which were first employed in the Cohen matter.
Protective Order: The order should require several protections: a. The State should provide copies of all computer images and data to defense counsel, with a provision that the materials are not to 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 the underlying action; b. The order also should require that the defense use a dedicated computer, which is not connected to the Internet, a network, or a printer, to view the materials, and the computer must be locked and secured when not in use; c. The images and other data should be conveyed to and among defense counsel and defense experts by hand-to-hand delivery, and the materials should be reconveyed to the State in the same manner at the conclusion of the matter; d. Anyone viewing the material on behalf of the defense should be furnished with a copy of the order and will be subject to its terms; e. Agreements between defense counsel and their experts should include a provision certifying that the expert acknowledges the terms of the protective order; f. The defendant shall not be permitted to view the materials outside the presence of defense counsel; and g. At the conclusion of the matter, the parties should agree upon specific procedures to ensure that the materials are completely and irretrievably deleted from any computers on which the materials were viewed. In addition to the required demonstration by counsel, we require that, in open court, counsel certify that he or she can and will abide by the terms of the protective order proposed by the court. Finally, if counsel cannot satisfy these procedural, yet essential, practical requirements, then the discovery materials are to be available for review only at a state facility.
The protective order is vacated and remanded.