State v. Scoles, — A.3d —, A-41-11, 2013 WL 2631693 (N.J. June 13, 2013).

Defendant was charged with endangering the welfare of a child based on allegations that he emailed images of child pornography.  During pretrial discovery the prosecutor refused to allow defendant access to the computer images and required defense counsel to view the images in the prosecutor’s office.  Defendant moved to compel the prosecutor to provide him with copies of the images pursuant to a state court rule that mandates on an open file approach to criminal discovery.  The state argued that the images were presumptively contraband and that the public interest required protection of the child-victims’ rights to privacy and to be protected from the republication of images of their sexual abuse through state-sanctioned dissemination.  The trial court denied the motion and issued a protective order allowing defendant and his defense team access to the images at a state controlled facility.  Defendant appealed.  The New Jersey Supreme Court granted review to provide courts with a consistent approach to discovery requests involving computer images of child pornography.  The court explained that its task was to create a template for courts to follow that would “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 so doing, the court crafted procedures that rejected the federal statutory approach to pretrial discovery of child pornography images—which requires such material to remain in the custody and control of the government or the court and prohibits duplication so long as the material is made reasonably available for inspection by the defense—in deference to New Jersey’s longstanding case law that favors the exchange of pretrial discovery and the court rule that creates the presumption of access to the state’s file and to copies of the state’s evidence.  The court described the procedures as follows:  (1) defense counsel has the “slight burden” of requesting access to computer images in their offices and need not make a showing of need; and (2) the court schedules a case management conference, during which defense counsel must demonstrate the ability to comply with the terms of a court-issued protective order that is designed to secure the images from intentional and unintentional dissemination and must certify in open court that they can and will abide by the protective order.  The court then outlined the terms of the protective order, including that: the materials provided should not be copied, reproduced, distributed, disseminated, electronically stored, uploaded or downloaded; defense counsel must use a dedicated non-internet connected computer for viewing the materials that is locked and secured when not in use; and defendant may only view the materials in the presence of defense counsel.  The court noted that the framework was a starting point for courts to use and left to the trial court’s discretion whether to adjust the protective order as it deemed necessary in each case.  The court then set aside the trial court’s protective order and remanded for further proceedings consistent with its opinion.