In State v. Ramirez, 252 N.J. 277, 286 (2022), the New Jersey Supreme Court considered “the conflicting rights of a sexual assault victim — to decline to participate in an investigation and to enjoy solitude at home — and a person accused of a sexual offense — to receive an effective defense, to assert the right to confrontation and compulsory process of witnesses, and to due process.”

In Ramirez, shortly after midnight, a twenty-three-year-old woman was walking home from her shift as a waitress when she was grabbed by a man, later identified as the defendant, dragged into a nearby cemetery and sexually assaulted.  Id. at 287.  The defendant held a box cutter to the woman’s throat “and told her to be quiet or he would kill her.”  Ibid.  “When the defendant heard police sirens, he pulled up his pants, told the woman to count to twenty, stole her purse and phone, and left.”  Ibid.  The woman “fled from the cemetery in her underwear,       . . . . flagged down a couple driving by for help, and they took her to the North Bergen Police Department.”  Ibid.

Local surveillance footage from that night showed a man, later identified as the defendant, following another woman before losing track of her, and then showed the defendant following the victim, and later showed the victim leaving the cemetery, but did not show the alleged sexual assault.  Id. at 288.  After his arrest, the defendant gave a statement to the police in which he denied sexually assaulting the victim, but referred to himself as a “bad person, and admitted, to previously “killing people in Mexico.”  Id. at 289.  The police also learned that the defendant had previously been convicted of two assaults that arose out of sexual contact charges.  Id. at 288.

In discovery, the prosecutor provided the defense with the victim’s name and date of birth, and a search reflecting that she had no prior criminal history of arrests, but redacted from the supplied materials the address where she lived at the time of the offense and did not provide her new address, where she had moved after the attack.  Id. at 289.   The prosecution moved for a protective order under Rule 3:13-3(e).  In an supporting certification, the prosecutor alleged that the victim had told him during a Zoom call that she did not want to provide her address to the defense, that she was afraid that the defendant or someone close to him would be able to locate her, and that she did not want to speak to the defense.  Ibid.   The trial judge granted the motion in part, and ordered the prosecution to provide defendant’s counsel with the victim’s contact information, but ordered defense counsel and his investigatory team not to disclose the information to the defendant.  Id. at 290.

The Appellate Division, in a published decision, reversed and held that the trial court should have granted the prosecutor’s motion “in full, keeping the victim’s address totally confidential from both defendant individually and the defense team.”  Id. at 292.  “The Appellate Division expressly linked the defense’s desire for the victim’s residential address to an anticipated effort to contact her at her home and persuade her to take part in an interview.”  Id. at 293.

The New Jersey Supreme Court granted the defendant’s motion for leave to appeal, vacated the decisions and remanded for further proceedings in accordance with the framework prescribed by the Court in its opinion.  Id. at 287.  The Court began its analysis with an examination of Rule 3:13-3, the rule that governs the prosecution’s general discovery obligations, under which a defendant is entitled to “automatic and broad discovery of the evidence the State has gathered,” including a witness’s address.  Id. at 296 (quoting State v. Scoles, 214 N.J. 236, 252 (2013)).   However, at issue in that case, Rule 3:13-3(e), “details how the prosecution may obtain a protective order from the court, allowing it to withhold from the defense certain discovery that otherwise would be mandated.”  Id. at 297.   “A trial court considers ‘the totality of the circumstances’ in determining whether good cause exists to grant the motion.”  Ibid.

The Court held that “the discovery rules must be considered in tandem with legislation devoted to the protection of crime victims,” including, among other legislation, the Criminal Injuries Compensation Act of 1971, N.J.S.A. 52:4B-1 to -33, and the more recent Sexual Assault Victim’s Bill of Rights (SAVBR), N.J.S.A. 52:4B-60.2.  Id. at 299.  The Court found that the laws, “read in tandem with the SAVBR, reflect a robust codified public policy to protect sexual assault victims in this State from undue incursions upon their rights of privacy and solitude.  The Legislature manifestly recognizes that such victims can re-experience trauma each time they discuss the violent incident.”  Id. at 303.

The Court found that “[w]eighing against those important rights of a victim are the countervailing rights of a person accused of a criminal offense,” including “the rights (1) to the effective assistance of counsel in defending the case, (2) to confront the prosecution’s witnesses at trial and to have the compulsory process of exculpatory witnesses, and (3) to due process.”  Ibid.

Based on its review of the relevant statutes and case law, the Court developed a framework of “prophylactic measures designed to protect the vital interests of sexual assault victims while simultaneously respecting a criminal defendant’s constitutional rights.”  Id. at 312.  The Court held “that, going forward, the following procedures and considerations apply when a prosecutor seeks to withhold from discovery a sexual assault victim’s address.”  Id. at 309.

In order to withhold the sexual assault victim’s address, the prosecution must first move for a protective order under Rule 3:13-3(e), supported by a sworn statement from the victim attesting the victim does not want the address disclosed to the defendant or defense counsel.  Id. at 309-10.  “If the defense asserts it wants the address, among other things, for the purpose of contacting and interviewing the victim, the court shall then consider various ‘supervised pathway’ options,” including:

(1) Written Defense Request. Allowing the defense to submit to the court a written request seeking the victim’s assent to an interview, which the court may permit to be conveyed to the victim through the prosecutor or through court staff.

(2) In Camera Interview. The judge conducting an in camera recorded video or telephone interview with the victim to verify that the victim has been furnished with the defense’s request and to determine whether the victim still desires to refrain from an interview and have the address kept confidential.

(3) Limited Telephone or Video Call. With advance notice to the victim, allowing the defense to speak with the victim, with or without the prosecutor present in the court’s discretion, by telephone or by remote video. This call would be strictly for the limited purpose of elaborating why the defense wishes to conduct an interview.

(4) Further Court-Devised Options. Devising other options that fairly balance the victim’s rights to refrain from participation against the defendant’s rights to prepare a defense of the case.

[Id. at 310.]

Next, after implementing one or more of the above options, the trial court “shall rule on whether good cause for a protective order has been shown under Rule 3:13-3(e)(1), and, if so, what court-imposed restrictions or conditions shall be observed.  In fashioning a protective order under these procedures, the trial court shall accord heavy weight to the sexual assault victim’s interests in having solitude and privacy at that victim’s residence in the wake of a highly traumatic experience.  The home can be a place of refuge for a victim.”  Id. at 310-11.

Further, the Court held that “there shall be a presumption that, if the defense is allowed by the court to obtain the address to enable contact with the victim, its investigators shall not appear at the victim’s residence without the victim’s advance consent and court approval.  This ‘home-is-off-limits’ presumption can be overcome only if the defense demonstrates to the court an exceptional and compelling need to permit such contact.”  Id. at 311.

Criminal law is complex and, as in State v. Ramirez, 252 N.J. at 277, it is constantly changing.  If you are facing criminal charges, you should immediately reach out to our team of experienced former prosecutors to schedule a free case review with one of our expert criminal defense attorneys. A complete understanding of criminal law by your attorney is crucial to your defense. Your rights and freedoms are in jeopardy, and you owe it to yourself to act. We are available to provide immediate assistance and further counsel on your criminal case at (862) 315-7929.

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