State v. Scoles

• Decision Date: 13 June 2013
• Citation: 214 N.J. 236,69 A.3d 559
• Parties: STATE of New Jersey, Plaintiff–Respondent, v. Blaine F. SCOLES, Defendant–Appellant.
• Court: New Jersey Supreme Court

214 N.J. 236

69 A.3d 559

STATE of New Jersey, Plaintiff–Respondent,

v.Blaine F. SCOLES, Defendant–Appellant.

Supreme Court of New Jersey.

Argued Jan. 2, 2013.

Decided June 13, 2013.

Bruce C. LiCausi, Raritan, argued the cause for appellant (Mr. LiCausi, attorney; Mr. LiCausi and Randall J. Peach, on the briefs).

Anthony A. Picione, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General of New Jersey, attorney).

Lawrence S. Lustberg, Newark, argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Gibbons P.C., attorneys).

Richard D. Pompelio, Warren, argued the cause for amicus curiae The New Jersey Crime Victims' Law Center.

Justice LaVECCHIA delivered the opinion for the Court.

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.

We granted leave to appeal. The discovery issue that we consider in this appeal has become a recurring one as prosecutions involving child pornography have become more frequent. In our review of the terms of the Protective Order governing defendant's access to the evidence to be used against him, we are called on also to consider defendant's contentionsthat the State has not adopted a consistent approach to discovery requests involving computer images of child pornography and that, in resolving such discovery disputes, courts have responded with differing and inequitable treatment, unfairly burdening defendant's ability to prepare a defense.

Discovery disputes involving an accused's access to computer images of alleged child pornography require a consistent approach. For sure, defendants have a right to a fair trial, but the public has an interest in ensuring that evidence posing a real danger of harm to child victims is not disseminated without authorization. As important as it is to ensure the mandate of our state's open file approach to pretrial discovery in criminal matters, the security of evidence of child pornography also must be a paramount concern in resolving disputes over discovery access. The court must be satisfied that the evidence will be safeguarded from risk of dissemination beyond that necessary for use in preparing a defense to the charges. That said, we recognize that no uniform order can be rigidly prescribed in fairness to all interested parties.

Accordingly, we hold that trial courts must be allowed sufficient flexibility to act reasonably and responsively to safeguard this evidence in order to provide prophylactic protection against unwarranted dissemination of images of child pornography out of respect for the victims of such repugnant acts. In doing so, however, we must assure that a defendant and his or her defense team have meaningful access to the evidence to which they are entitled in order to muster their defense without unnecessary interference or intrusion. Through this opinion, a template is established for use by courts called on to strike a proper balance between a criminal defendant's important right to pretrial discovery and the societal interest in protecting child pornography victims from the risk of unnecessary harm arising from the prosecution of criminal trials. In this particular matter, the Protective Order is set aside, and we remand for the trial court to reconsider the discovery motion in light of the principles announced herein.

I.

The facts and procedural history to the underlying charges can be summarized as follows. In March 2010, the New Jersey State Police received a cyber tip from the National Center for Missing and Exploited Children. According to the tip, an America Online (AOL) user, with the screen name “tushlover@ aol. com,” had emailed a digital video file that contained suspected child pornography. The tip revealed that the email address belonged to defendant Blaine Scoles.

A police investigation stemming from that tip uncovered that defendant operated several AOL screen names. Law enforcement officers found evidence that at least five different video files and a number of photographs depicting child pornography had been emailed from the account identified in the tip or through screen names used by defendant.

Officers obtained a search warrant and, on December 17, 2010, searched defendant's residence, where they found further evidence of child pornography on a personal computer, a hard disk, and a flash drive. Defendant was arrested and charged with endangering the welfare of a child in violation of N.J.S.A. 2C:24–4(b)(5)(a) and (b).

On February 23, 2011, the prosecutor handling the case sent defense counsel a letter with instructions concerning discovery of the child pornography evidence. The prosecutor stated that (1) the evidence would not be copied, (2) defendant was personally prohibited from viewing the evidence,and (3) viewing would only be permitted by appointment at the prosecutor's office. Defendant responded by filing a motion to compel discovery pursuant to Rule 3:13–3. The motion included a request for a copy of the photographs, video-clips, and any other evidence of child pornography so that defendant, his defense counsel, and a yet-to-be-determined defense expert could have access to the evidence in order to prepare a vigorous defense, including addressing whether the images were of real children.

The trial court held a hearing on the motion on June 22, 2011. After hearing arguments, the court issued an oral opinion. The court noted that the Appellate Division, in unpublished opinions, had issued inconsistent rulings as to whether a court could issue a protective order in response to a discovery request that requires a defendant and defense counsel, as well as any expert retained by defendant, to go to a prosecutor's office in order to view images of child pornography. The court reasoned that defendant had failed to articulate “why viewing a few images at the [p]rosecutor's office would impede his defense,” that “[t]here has been no stated purpose by defense counsel or [d]efendant as to why there is a need, specifically, for these images to be copied at this time,” and that defendant had not secured an expert.

In rejecting defendant's arguments in support of turning over copies of the evidence, the court stated that “[c]hild pornography is contraband, and possession of same is illegal.” In balancing defendant's interest in preparing for trial and the need to protect the privacy of victims of sexual crimes, and to “minimize the risk of additional harm to them from further dissemination,” the court stated that the scale tipped in favor of protecting the victims. Thus, the court required defendant, his defense counsel, and his experts to view the images only “at a State facility, on a State computer, with sufficient privacy so as not to interfere with any attorney-client discussion.” The court stated that the identity of the expert need not be revealed to the State and added provisions for the expert to have access to equipment or software, at the state facility, if requested. Finally, the court ordered the prosecutor to make the evidence available to defendant within forty-eight hours of an inspection request. Accordingly, the court denied defendant's request for copies of the relevant photographs and videos and set forth the terms of its holding in a Protective Order dated July 11, 2011.

On July 28, 2011, defendant filed with the Appellate Division a motion to stay the trial court's ruling and a motion for leave to appeal. Both motions were denied by order. Defendant then filed a motion for leave to appeal with this Court, which we granted. State v. Scoles, 208 N.J. 596, 34 A.3d 778 (2011). We also granted amicus curiae status to the Association of Criminal Defense Lawyers of New Jersey (ACDL) and to the New Jersey Crime Victims' Law Center (NJCVLC).

II.

A.

Defendant argues that the trial court order treated his discovery demand more restrictively than other criminal cases that involved evidence of alleged images of child pornography on or transferred by computer. In contrast to his own case, defendant points to a protective order issued in an earlier criminal matter involving child pornography charges against a public figure. Defendant claims that although the decision of the Appellate Division endorsing the pretrial discovery procedures in that matter was unpublished, the order was extensively publicized and is widely known in the legal community. Moreover, because the State was a party to that matter, defendant argues that the unpublished order should bind the State to the discovery practice contained therein.

The protective order in that earlier matter established procedures to safeguard the evidence while providing the defendant with access to the material to prepare his defense. In short, the order detailed the provisions...