1

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized.)

State in the Interest of A.B. (A-74-12) (072873)

Argued March 18, 2014 -- Decided September 24, 2014

Albin, J., writing for a unanimous Court.

In this appeal, the Court considers whether the family court abused its discretion by entering a discovery 

order allowing the accused, his attorney, and his investigator to inspect and photograph specified areas of the alleged 

victim’s home for no more than thirty minutes in the presence of a prosecutor’s investigator.

In September 2011, A.B., then seventeen years old, was charged in a juvenile complaint with offenses that 

would constitute first-degree aggravated sexual assault and third-degree endangering the welfare of a child if 

committed by an adult. The named victim is A.B.’s six-year-old cousin, N.A. The offenses allegedly occurred 

during a three-week period when A.B. was staying with his aunt and uncle. The prosecutor’s investigators 

photographed N.A.’s home and cut a piece of rug for forensic testing. Defense counsel requested to inspect the 

home to understand the dimensions and relative locations of the rooms where alleged sexual acts occurred and to 

take pictures. When the prosecutor objected, A.B. filed a motion to secure an inspection order. 

At a hearing on the motion to inspect, defense counsel insisted that he had to visit the scene of the crime to 

prepare his case. The prosecutor opposed the motion, stating that the photographs accurately depicted the relevant 

areas of the house and arguing that the “victim’s family should not have to vacate their home on the hope . . . that 

the visit might reveal something useful to the case.” The family court entered an order allowing defense counsel “to 

inspect the victim’s room and [A.B.]’s sleeping area with an investigator and [A.B.] in the company of an 

investigator from the Prosecutor’s Office.” The order restricted the inspection to “no more than 30 minutes,” 

excluded A.B.’s parents from participating, required that “the victim’s family” agree to the date and time of the visit, 

and allowed for the family to “be in another part of the house or outside of the house” during the visit.

The State filed a motion for reconsideration supported by a certification from N.A.’s mother, which stated

that her family would be traumatized if A.B. were allowed in the home. The State asserted that the order violated 

the Victim’s Rights Amendment (VRA), the Crime Victim’s Bill of Rights (CVBR), and case law requiring a 

heightened and specific showing of relevance to justify invading a victim’s privacy rights. Defense counsel argued 

that inspection of the alleged crime scene was fundamental to his preparation and would allow him a spatial 

understanding of the home’s layout and an opportunity to take photographs useful to the defense. The court denied 

reconsideration, explaining that the order took into account the privacy concerns of the victim’s family and that 

defense counsel had the right to inspect “the scene of the crime with [A.B.] . . . so he can better prepare the case.”

The Appellate Division denied the State’s motion for leave to appeal. This Court granted the State’s 

interlocutory appeal, summarily remanded to the Appellate Division for consideration on the merits, and stayed the 

discovery pending a final decision. The Appellate Division then affirmed the inspection order, finding that the 

family court “carefully considered the pertinent facts and balanced the competing interest of defendant’s due process 

rights to prepare and present a defense against the right of the victim and her family to the privacy and security of 

their own home.” This Court granted the State’s motion for leave to appeal. State ex rel. A.B., 214 N.J. 233 (2013).

HELD: The family court did not abuse its discretion by permitting the defendant and his attorney to inspect and 

photograph specified areas of the alleged victim’s home. Where, as here, the defense has made a legitimate request to 

inspect a crime scene that is an alleged victim’s home and has articulated a reasonable basis to believe the inspection 

will lead to relevant evidence on a material issue, then, subject to appropriate time, place, and manner restrictions 

intended to protect the privacy interests of the alleged victim and her family, the discovery should be granted.
2

1. In a criminal case, the accused is generally “entitled to broad discovery.” State v. D.R.H., 127 N.J. 249, 256 

(1992). Rule 3:13-3(b) grants automatic access to a wide range of relevant evidence, including “buildings or places 

which are within the possession, custody or control of the prosecutor.” Courts also may order discovery “when 

justice so requires,” weighing whether the “evidence sought could contribute to an adequate defense of the accused 

person” and “cannot practicably be obtained from other sources” against whether there is a “likelihood of subjecting 

witnesses to intimidation, unnecessary annoyance, harassment or embarrassment.” See State ex rel. W.C., 85 N.J.

218, 221, 227 & n.1 (1981) (citation and internal quotation marks omitted). When a defendant seeks discovery 

outside of the categories permitted by the court rules, he bears the burden of establishing need. (pp. 13-15)

2. Because N.A.’s home is not “within the possession, custody or control of the prosecutor,” R. 3:13-3(b)(1)(E), 

A.B.’s request to inspect the house does not fall within the scope of automatic discovery, and A.B. must show that 

the inspection is justified. The Court has addressed the showing a defendant must make when a discovery demand 

involves a witness’s compulsory viewing of a line-up or a psychological or physical examination of an alleged 

victim or witness. The burden necessarily increases in direct proportion to the nature and extent of the intrusion.

When intrusive discovery is sought, courts must be careful that the process does not subject witnesses, particularly 

alleged victims, “to intimidation, harassment, or embarrassment.” D.R.H., supra, 127 N.J. at 256. (pp. 16-18)

3. In a discovery proceeding “[a] victim of a crime shall be treated with fairness, compassion and respect,” N.J. 

Const. art. I, ¶ 22, and a witness has the right “[t]o be free from intimidation, harassment or abuse by any person 

including the defendant or [his attorney],” N.J.S.A. 52:4B-36(c). But the rights of the accused and alleged victims 

and witnesses are not mutually exclusive. The rights reflected in the VRA and CVBR do not diminish those rights 

possessed by the accused facing a criminal prosecution. (pp. 18-19)

4. Although New Jersey courts have not addressed the issue of allowing a defendant to inspect a crime victim’s 

home, other jurisdictions generally require only a threshold showing of relevance and materiality, consistent with 

W.C., supra, 85 N.J. 218. When courts have denied access to photograph or inspect a crime scene, it has generally 

been because the defendant failed to show sufficient, or any, justification. Several of these courts suggested that had 

the defense made a showing of relevance and need, the inspection would have been permissible. (pp. 19-21)

5. Unlike psychiatric and physical examinations, which are extraordinary intrusions into an alleged victim’s mind 

and body, a defense attorney’s visit to the crime scene is a rather ordinary undertaking, and in some circumstances, 

might constitute a professional obligation. When a crime scene is the victim’s home, significant concerns arise. 

Any discovery request that has as its objective causing intimidation, harassment, or abuse of an alleged victim is 

wholly illegitimate and must be denied. However, when the defense has made a legitimate request to inspect a 

crime scene that is an alleged victim’s home and has articulated a reasonable basis to believe the inspection will lead 

to relevant evidence on a material issue, then, subject to appropriate time, place, and manner restrictions intended to 

protect the privacy interests of the alleged victim and her family, the discovery should be granted. This test is 

similar to the one adopted in W.C., supra, 85 N.J. at 226. A defendant must show a reasonable basis to believe that 

a home inspection of limited duration will yield relevant evidence. (pp. 22-25)

6. In this case, A.B. posits that it was not possible for the acts alleged by N.A. to have occurred undetected by any 

of the adults in N.A.’s home. A.B.’s attorney asserts that it is essential for him to understand the dimensional layout 

of the rooms, to view firsthand the sightlines, and to take photographs helpful to the defense. In considering the 

motion to inspect N.A.’s home, the trial court weighed the competing interests: A.B.’s need for access to the scene 

to prepare a defense and the family’s desire not to suffer the traumatizing effect of A.B.’s presence in their home, 

with his attorney, “look[ing] for things they can use against [them] in Court.” The family court carefully crafted an 

order that took into account the parties’ concerns. In so doing, the family court did not abuse its discretion and 

N.A.’s family must comply with the order. (pp. 25-28)

The judgment of the Appellate Division is AFFIRMED, and the matter is REMANDED to the family

court for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and FERNANDEZ-VINA; 

and JUDGE RODRÍGUEZ (temporarily assigned) join in JUSTICE ALBIN’s opinion. JUDGE CUFF

(temporarily assigned) did not participate.
1

SUPREME COURT OF NEW JERSEY

A-74 September Term 2012

072873

STATE OF NEW JERSEY

IN THE INTEREST OF

A.B.

Argued March 18, 2014 – Decided September 24, 2014

On appeal from the Superior Court, Appellate 

Division.

Joie D. Piderit, Acting Assistant 

Prosecutor, Special Deputy Attorney General,

argued the cause for appellant State of New 

Jersey (Andrew C. Carey, Acting Middlesex 

County Prosecutor, attorney).

Jack Venturi argued the cause for respondent 

A.B. (Mr. Venturi, attorney; Mr. Venturi and 

Andrew Tealer, on the brief).

Deborah C. Bartolomey, Deputy Attorney 

General, argued the cause for amicus curiae

Attorney General of New Jersey (John J. 

Hoffman, Acting Attorney General, attorney).

Jeffrey S. Mandel argued the cause for 

amicus curiae Association of Criminal 

Defense Lawyers of New Jersey (Cutolo 

Mandel, attorneys; Mr. Mandel and Andrew 

Stein, on the brief).

JUSTICE ALBIN delivered the opinion of the Court.

In this appeal, the State challenges an order of the family 

court allowing seventeen-year-old A.B. and his attorney to 

conduct a thirty-minute inspection of a home where the juvenile 
2

is alleged to have committed sexual offenses against his sixyear-old cousin, N.A. 

The juvenile moved for the inspection after the 

prosecutor’s investigators had photographed the home and cut a 

piece of rug from it for forensic testing. The juvenile’s 

attorney gave specific and particularized reasons for the need 

to visit and photograph the home in preparation for A.B.’s 

defense. The prosecutor opposed the juvenile’s motion on the 

ground that the defense inspection of the home -- the crime 

scene -- constituted “intimidation, harassment or abuse” in 

violation of the Crime Victim’s Bill of Rights, N.J.S.A. 52:4B36(c). 

On interlocutory review, the Appellate Division upheld the 

inspection order, finding that the family court had exercised 

its sound discretion. The order provided that the inspection be 

conducted at a reasonable time and in the presence of a 

prosecutor’s investigator and with N.A.’s parents present in the 

home, if they wished.

We now affirm. The right to the effective assistance of 

counsel in a criminal proceeding includes the right to conduct a 

reasonable investigation to prepare a defense. The right of the 

accused to a fair trial, and the right of a purported victim and 

her family to privacy must be balanced. The family court found 

that A.B. made a sufficient showing of need to inspect and 
3

photograph N.A.’s home. The court issued the inspection order 

only after carefully weighing the juvenile’s fair-trial rights 

and N.A.’s privacy interests and imposing reasonable time and 

manner restrictions. We conclude that the family court did not 

abuse its discretion. 

I.

A.

In September 2011, A.B., then seventeen years old, was 

charged in a juvenile complaint with offenses that would 

constitute first-degree aggravated sexual assault, N.J.S.A.

2C:14-2(a), and third-degree endangering the welfare of a child,

N.J.S.A. 2C:24-4(a), if committed by an adult. The victim named 

in the complaint is A.B.’s six-year-old cousin, N.A. The 

offenses allegedly occurred during a three-week period when A.B. 

was staying with his aunt and uncle in Old Bridge in Middlesex 

County.

The genesis of this appeal is defense counsel’s letter to

the prosecutor requesting to inspect the scene of the alleged 

crime -- N.A.’s home -- for the purpose of gaining an

understanding of the dimensions and relative locations of the 

rooms where alleged sexual acts occurred and to take pictures

for preparation and use at trial. The prosecutor responded that 

he would not agree to such an inspection without a court order. 

A.B. then filed a motion to secure an inspection order. The 
4

record before the family court included testimony from N.A.’s 

mother and an investigator from the Middlesex County 

Prosecutor’s Office.1 We now review that record.2

B.

On July 2, 2011, A.B., then seventeen years old, began what 

would be a three-week stay at the Old Bridge home of his aunt 

and uncle, Karen and George. They resided there with their sixyear-old daughter, N.A., who is A.B.’s cousin. A.B. lived in 

Connecticut with his mother, Nancy, who did not accompany him on 

this visit. Nancy and Karen are sisters. During his stay, A.B. 

slept on a couch in the den, and N.A. slept in her own room.

On the Fourth of July, Karen and George hosted a cookout 

attended by Karen’s brother from Connecticut and her sister and 

brother-in-law from Texas. At this family gathering, nothing 

seemed amiss, and the weeks that followed were uneventful.

On Sunday morning, July 24, as Karen passed the bathroom, 

her daughter said, “Mommy, my peepee hurts.” When Karen asked 

why, N.A. responded, “Because [A.B.] rubbed me down there.” 

Karen observed that her daughter’s genital area was red and 

 

1 The testimony was taken during an N.J.R.E. 104 hearing to 

determine the admissibility of out-of-court statements made by 

by N.A. to her mother and the investigator.

2 To protect their privacy, the juvenile defendant and juvenile 

complainant are identified by their initials, and other family 

members are identified by fictitious names.
5

irritated. Karen awakened her husband, a physician, who then 

examined his daughter. He too noticed redness but saw no 

evidence of penetration. Karen and George then went to the den 

to confront A.B., who was asleep. They awoke A.B., and he

denied improperly touching his cousin, saying, “I wouldn’t do 

that.” Karen had left the children home alone for two hours the 

previous evening and presumed that the sexual contact occurred 

then.

Karen told A.B. that she would take him home later that 

day. Karen spoke with her sister Nancy, who apparently was made 

aware of the accusation by her son. The sisters agreed to meet 

at a McDonald’s in Connecticut with the children present.

At the McDonald’s, Karen allowed her sister to talk alone 

with N.A. Nancy video-recorded her conversation with N.A.,

during which N.A. admitted to “massaging” herself. At some 

point, Karen approached her daughter, and N.A. said to her 

mother, “I did it to myself.” Karen asked if she was sure, and 

N.A. said, “yes.” Karen further questioned her daughter, who 

replied, “I’m red-handed[.] I did it to myself. I can’t help 

it. I just like to touch it.” To further vouch for her 

honesty, N.A. put her hand in the air and said, “I pinky swear.” 

In her testimony, Karen admitted that one time she caught her 

daughter rubbing her private parts in the bathtub. 
6

Karen was distraught and yelled at her daughter for having 

lied. But Karen admitted that she was not “truly convinced” 

that her nephew had not abused her daughter. Karen returned 

home and several days later broached the subject again with her 

daughter. While the two sat on the sofa, Karen asked N.A. 

whether she told the truth to her aunt. She assured her 

daughter, “you will not be in trouble if you . . . lied about 

it. You know, I love you no matter what.” According to Karen, 

N.A. then related an incident in which A.B. offered her playtime 

with his iPod if she would suck his “ding-dong.” When N.A. did 

so, “some milky white stuff came out,” and “she spit it out and 

brushed her teeth.” N.A. explained that she did not tell her 

aunt Nancy the truth because she did not want to get in trouble.

Karen suspected that the oral-sex incident must have 

happened during the Fourth of July cookout because of an unusual

remark made by N.A. that day. Mid-day, N.A. said to Karen, 

“Mommy, I brushed my teeth,” when Karen typically had to remind 

her daughter to brush. Later, during a video-taped interview 

with a prosecutor’s investigator, N.A. also indicated that the

sexual incident with A.B. occurred during the cookout. 

Investigators cut out a piece of the rug in the area where N.A. 

claimed to have spit out the semen, but the forensic test 

results were negative. Investigators took forty-one photographs 

of the home. 
7

II.

A.

At a hearing on the motion to inspect, defense counsel 

insisted that he had to visit “the scene of the crime” to 

prepare his case and that he was not adverse to a thirty-minute 

time limit or to excluding A.B.’s parents from participating. 

In opposing the motion, the prosecutor purported that the 

photographs provided to the defense in discovery accurately 

depicted the relevant areas of the house and asserted that the 

“victim’s family should not have to vacate their home on the 

hope . . . that the visit might reveal something useful to the 

case.” The family court entered an order allowing “the defense 

attorney to inspect the victim’s room and juvenile’s sleeping 

area with an investigator and the juvenile in the company of an 

investigator from the Prosecutor’s Office.” The order 

restricted the inspection to “no more than 30 minutes,” excluded 

the juvenile’s parents from participating, required that “the 

victim’s family” agree to the date and time of the visit, and 

allowed for the family to “be in another part of the house or 

outside of the house” during the visit.

The State filed a motion for reconsideration. In that 

motion, Karen certified that her family would be traumatized if 

her nephew were allowed in her home and that she did “not feel 

comfortable opening [her] home to the defense so that they can 
8

look around for things they can use against us in Court.” The 

State asserted that the order violated the Victim’s Rights 

Amendment, the Crime Victim’s Bill of Rights, and case law 

requiring a heightened and specific showing of relevance to 

justify the invasion of a victim’s privacy rights. Counsel for 

A.B. argued that inspection of the home where the alleged crime 

occurred was a fundamental part of his preparation and would 

allow him a spatial understanding of the layout of the rooms and 

an opportunity to take photographs useful to the defense.

In denying the reconsideration motion, the court explained 

that the order was crafted to take into account the privacy 

concerns of Karen’s family. The court further explained that 

the purpose of the order was “to ensure a fair playing field.” 

The court emphasized that defense counsel had the right to 

inspect “the scene of the crime with the juvenile . . . so he 

can better prepare the case.” 

B.

The Appellate Division denied the State’s motion for leave 

to appeal. We granted the State’s interlocutory appeal and 

summarily remanded to the Appellate Division for consideration 

on the merits. We stayed the discovery pending a final 

decision.

The Appellate Division affirmed the family court’s

inspection order. The panel found that the court “carefully 
9

considered the pertinent facts and balanced the competing 

interest of defendant’s due process rights to prepare and 

present a defense against the right of the victim and her family 

to the privacy and security of their own home.” The panel noted 

that the case “turn[s] on the credibility of the witnesses” and 

whether the juvenile could have committed the alleged sexual 

abuse of his cousin “without detection.” The panel determined 

that the family court “fully comprehended the invasion of the 

victim’s family’s privacy and security entailed by allowing 

defendant and his defense team access to their home.” The panel 

did not second-guess the court’s judgment that the home 

inspection “was relevant to [A.B.’s] claims of innocence and 

could produce exculpatory evidence” and that the defense should 

not be limited to “the photographs taken by the State.” 

Finally, the panel concluded that the family court “soundly 

exercised its discretion” by crafting an order that limited the 

“intrusion on the victim’s family” to no more than what was 

“absolutely necessary to accommodate defendant’s due process 

rights.”

We granted the State’s motion for leave to appeal. State 

ex rel. A.B., 214 N.J. 233 (2013). We also granted the motions 

of the Attorney General and the Association of Criminal Defense 

Lawyers of New Jersey (ACDL) to participate as amici curiae.

III.
10

A.

The State argues that the court’s discovery order 

permitting defense counsel access to the home of the victim’s 

family constitutes an invasion of privacy and a violation of the 

Fourth Amendment’s bar against unreasonable searches, the 

Victim’s Rights Amendment (VRA), N.J. Const. art. I, ¶ 22, and 

the Crime Victim’s Bill of Rights (CVBR). The State posits that 

defense counsel’s “bare and unsubstantiated claim” of a need to 

inspect N.A.’s home to prepare for trial does not meet the 

necessary relevancy standard. It maintains that the order is 

not supported by the discovery rule, R. 3:13-3, the controlling 

law in this state, or precedents in other jurisdictions. In the 

State’s view, the court’s order “went too far in accommodating 

the juvenile’s request,” and the defense should have found 

satisfactory the photographs of the home provided by the 

prosecutor.

B.

The Attorney General, as amicus curiae, urges this Court to 

rule that a discovery order to inspect an alleged victim’s home, 

even a home that is the scene of the alleged crime, shall not 

issue in the absence of the accused demonstrating a substantial 

need grounded in the evidence. Although acknowledging that “New 

Jersey courts have the inherent power to order discovery when 

justice requires,” the Attorney General insists that here the 
11

court “granted the order with no showing of the juvenile’s need 

to enter and inspect the house or that his need outweighed the 

basic rights of the victim and her family.” The Attorney 

General submits that, although the order raised Fourth Amendment 

concerns, the court did not demand a satisfactory explanation 

and allowed a fishing expedition.

C.

A.B. asks this Court to affirm the Appellate Division’s 

upholding of the discovery order. A.B. contends that the order 

to inspect the home -- the scene of an alleged crime -- is 

necessary for him to have a “meaningful opportunity to present a 

complete defense,” (citation and internal quotation marks

omitted), a right guaranteed by the Federal and State 

Constitutions. A.B. emphasizes that he is presumed to be 

innocent and that if adjudicated delinquent he faces the 

prospect of confinement, classification as a sex offender, 

notification and registration requirements under Megan’s Law, 

and other adverse consequences. He claims that his counsel 

requires an understanding of the spatial relationships and 

configuration of rooms, where certain conduct was observed and 

not observed, and that this understanding is critical to the 

defense. He also claims that the photographs provided by the 

State are inadequate for his purposes. He notes that the State 

had access to the house and that he would be disadvantaged if he 
12

were not permitted to inspect the residence. A.B., moreover,

disputes the State’s position that the case law of other 

jurisdictions is not supportive of his right of access. Last, 

A.B. reasons that any negative impact on N.A. and her family 

would be minimal because the parents can choose to be absent

during the inspection, and N.A. does not have to be told that it 

occurred. 

D.

The ACDL, as amicus curiae, submits that the fair-trial 

rights of the accused and rights of victims and owners of 

private property where a crime has occurred can be protected 

through an inspection order that imposes “reasonable time, 

place, and manner restrictions.” According to the ACDL, “[i]f a 

defendant demonstrates that it is reasonably probable that 

exculpatory evidence exists at a crime scene or that access will 

assist with trial preparation,” a court should grant a discovery 

order identifying the precise area to be inspected and 

specifying the time allotted for the inspection. The ACDL 

believes that the burden rests with the objector to 

“specifically identify compelling reasons for denying access 

that cannot be alleviated through a carefully crafted order.”

IV.

A.
13

We must decide whether the family court abused its 

discretion by entering a discovery order allowing the accused, 

his attorney, and his investigator to inspect and photograph 

specified areas of the alleged victim’s home for no more than 

thirty minutes in the presence of a prosecutor’s investigator. 

The issue presents a balancing of the right of the accused to a 

fair trial and the right of an alleged victim and her family to 

privacy in their home.

Appellate review of a trial court’s discovery order is 

governed by the abuse of discretion standard. In re Subpoena 

Duces Tecum on Custodian of Records, 214 N.J. 147, 162 (2013) 

(citing Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 

371 (2011)). Thus, an appellate court should generally defer to 

a trial court’s resolution of a discovery matter, provided its 

determination is not so wide of the mark or is not “based on a 

mistaken understanding of the applicable law.” Pomerantz Paper, 

supra, 207 N.J. at 371 (citation and internal quotation marks 

omitted); see generally Flagg v. Essex Cnty. Prosecutor, 171 

N.J. 561, 571 (2002) (holding that “abuse of discretion” “arises 

when a decision is made without a rational explanation, 

inexplicably departed from established policies, or rested on an 

impermissible basis” (citation and internal quotation marks 

omitted)). In construing the meaning of a statute, court rule, 

or case law, “our review is de novo, and therefore we owe no 
14

deference to the trial court’s or Appellate Division’s legal 

conclusions.” Farmers Mut. Fire Ins. Co. v. N.J. Prop.-Liab. 

Ins. Guar. Ass’n, 215 N.J. 522, 535 (2013); Willingboro Mall, 

Ltd. v. 240/242 Franklin Ave., L.L.C., 215 N.J. 242, 253 (2013).

B.

Our courts do not countenance trial by surprise. The 

accused in a criminal case is generally “entitled to broad 

discovery.” State v. D.R.H., 127 N.J. 249, 256 (1992). “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,” and our court rules implement 

that approach. State v. Scoles, 214 N.J. 236, 252 (2013). Rule

3:13-3(b) grants a defendant automatic access to a wide range of 

relevant evidence, including “buildings or places which are 

within the possession, custody or control of the prosecutor,” R.

3:13-3(b)(1)(E). 

In addition to the automatic discovery provision of Rule

3:13-3(b), our courts have “the inherent power to order 

discovery when justice so requires.” State ex rel. W.C., 85 

N.J. 218, 221 (1981). “Whether discovery should be expanded 

involves exercising judicial discretion . . . [by] balancing the 

beneficial effects of discovery against its disadvantages.” Id.

at 224. In exercising its discretion, a court should weigh 

whether the “evidence sought could contribute to an adequate 
15

defense of the accused person” and “cannot practicably be 

obtained from other sources” against whether there is a 

“likelihood of subjecting witnesses to intimidation, unnecessary 

annoyance, harassment or embarrassment.” See id. at 227 & n.1 

(citation and internal quotation marks omitted). When a 

defendant seeks discovery outside of the categories permitted by 

our court rules, he bears the burden of establishing need. Id.

at 228. 

We must be mindful that the purpose of pretrial discovery 

is to ensure a fair trial. A criminal trial where the defendant 

does not have “access to the raw materials integral to the 

building of an effective defense” is fundamentally unfair. Ake 

v. Oklahoma, 470 U.S. 68, 77, 105 S. Ct. 1087, 1093, 84 L. Ed.

2d 53, 62 (1985). 

Visiting the scene of the crime can be critical in 

preparing a defense. One eminent commentator instructs trial 

attorneys to visit the scene of the crime. See 32 New Jersey 

Practice, Criminal Practice and Procedure § 20:1, at 481 

(Leonard N. Arnold) (2010-2011 ed.) (“If you have not visited 

the scene of the crime during the investigation of the case, 

visit it . . . .”). That commentator observes that a “trial 

attorney must know what the crime scene . . . looks like” 

because it will enable “him/her to intelligently interview 

witnesses, and to prepare both direct and cross examination.” 
16

Ibid. Indeed, the failure of a defense attorney “to conduct an 

investigation of the crime scene” can constitute ineffective 

assistance of counsel. See, e.g., Thomas v. Kuhlman, 255 F. 

Supp. 2d 99, 109, 112 (E.D.N.Y. 2003) (“[I]f properly armed with 

the easily discoverable facts concerning the layout of the 

victim’s apartment building, counsel would likely have chosen to 

highlight the implausibility of the prosecution’s theory of the 

crime.”).

A.B.’s request for access to inspect N.A.’s home does not 

fall within the general scope of the automatic discovery rule 

because her home is not “within the possession, custody or 

control of the prosecutor,” R. 3:13-3(b)(1)(E). Therefore, he 

must demonstrate that the inspection is justified. See W.C., 

supra, 85 N.J. at 228. We now consider the precise burden that 

a defendant bears when seeking access to a home of an alleged 

victim that is a crime scene.

C.

This Court has addressed the showing a defendant must make 

when a discovery demand involves a witness’s compulsory viewing 

of a line-up or a psychological or physical examination of an 

alleged victim or witness. The evidentiary burden necessarily 

increases in direct proportion to the nature and extent of the 

intrusion. 
17

A defendant who seeks to compel a witness’s attendance at a 

lineup must show that the identification procedure has a 

“reasonable likelihood” of having “some probative value” to a 

“substantial material issue.” W.C., supra, 85 N.J. at 226. A 

greater showing, however, is required if the defendant seeks a 

psychiatric or physical examination of an alleged victim or 

witness. 

To compel a psychiatric examination of a victim for the 

purpose of challenging her competency to testify, a defendant 

must meet a more exacting standard and demonstrate a 

“‘substantial showing of need and justification.’” State v. 

R.W., 104 N.J. 14, 21 (1986) (quoting State v. Butler, 27 N.J.

560, 602 (1958)). In such a case, a “court must balance the 

possible emotional trauma, embarrassment, and intimidation to 

the complainant, particularly an extremely young child, against 

the likelihood that the examination will produce material, as 

distinguished from speculative, evidence.” Id. at 28. 

In cases where the defense seeks a “physical examination 

[of] child sex-abuse victims,” a “substantial showing of need 

and justification” also must be demonstrated. D.R.H., supra, 

127 N.J. at 259 (internal quotation marks omitted) (applying 

standard to reject defendant’s request of gynecological exam of 

juvenile). More particularly, the defendant must show that the 

“examination can produce competent evidence that has substantial 
18

probative worth,” which “could refute or neutralize 

incriminating evidence or impugn the credibility of prosecution 

witnesses.” Id. at 260-61. In all cases in which intrusive 

discovery is sought, courts must be careful that the discovery 

process does not subject witnesses, particularly alleged 

victims, “to intimidation, harassment, or embarrassment.” Id.

at 256. Courts must guard against abusive discovery tactics 

that can have a chilling effect on the readiness of witnesses 

and victims to come forward and participate in the criminal 

justice process. Ibid.

D.

Our judicial discovery standards take into account the 

concerns expressed in both the VRA and CVBR. Our courts 

understand that in a discovery proceeding “[a] victim of a crime 

shall be treated with fairness, compassion and respect,” N.J. 

Const. art. I, ¶ 22, and that a witness has the right “[t]o be 

free from intimidation, harassment or abuse by any person 

including the defendant or [his attorney],” N.J.S.A. 52:4B36(c). But the rights of the accused and alleged victims and 

witnesses are not mutually exclusive. One right does not have 

to be sacrificed for another. They can and must be harmonized. 

Thus, the rights reflected in the VRA and CVBR do not diminish

those rights possessed by the accused facing a criminal 

prosecution. See, e.g., State v. Means, 191 N.J. 610, 620 
19

(2007) (“The trial court should consider the concerns of the 

victim or the victim’s family, but the court may not impinge on 

a defendant’s constitutional rights.”); State v. Timmendequas, 

161 N.J. 515, 556 (1999) (noting it is not error to consider 

victim’s family’s concerns “provided that the constitutional 

rights of the defendant are not denied or infringed”); Assem. 

Comm. Statement to Assem. Concur. Res. No. 85, 204th Leg., 1st 

Sess. 1 (Oct. 15, 1990) (placing VRA before voters with 

statement that VRA “is not intended in any way to deny or 

infringe upon the constitutional rights of any person accused of 

a crime”).

E.

No case in New Jersey has addressed the issue of allowing a 

defendant to inspect a crime victim’s home. In other 

jurisdictions, courts that have adjudicated this issue have not 

adopted the more restrictive substantial-need standard proposed 

by the Attorney General. These courts generally require only a 

threshold showing of relevance and materiality, consistent with 

the requirements set forth in W.C. Compare W.C., supra, 85 N.J.

at 226 (holding that accused must make showing of “reasonable 

likelihood” that identification procedure will be of “some 

probative value” to “substantial material issue”), with State v. 

Muscari, 807 A.2d 407, 417 (Vt. 2002) (requiring “some showing 

that the requested intrusion is relevant and material”), State 
20

v. Gonsalves, 661 So.2d 1281, 1282 (Fla. Ct. App. 1995) 

(requiring “good cause . . . for inspection”), Henshaw v. 

Commonwealth, 451 S.E.2d 415, 420 (Va. Ct. App. 1994) (requiring 

“prima facie showing of relevance”), People v. Nicholas, 599 

N.Y.S.2d 779, 783 (Sup. Ct. 1993) (requiring “prima facie 

showing . . . [of] relevant [and necessary] material evidence, 

not already provided”), and Bullen v. Superior Ct., 204 Cal. 

App. 3d 22, 26 (Ct. App. 1988) (requiring “sufficient ‘plausible

justification’ and ‘good cause’”).

Significantly, when courts have denied defendants access to 

photograph or inspect a crime scene, it has generally been 

because the defendant failed to show sufficient, or any,

justification. See, e.g., Muscari, supra, 807 A.2d at 418 

(denying inspection because defendant “offered no reason or 

justification”); Nichols, supra, 599 N.Y.S.2d at 782 (denying 

defendant’s request to photograph inside ex-wife’s apartment, 

where he previously lived, because he made only “speculative 

showing” and failed to allege that “inspection would yield any 

information different from that already received from [police] 

photographs and crime scene reports”); Bullen, supra, 204 Cal. 

App. 3d at 27 (denying inspection where defendant presented only 

“conclusional” justification); People v. Poole, 462 N.E.2d 810, 

813 (Ill. Ct. App. 1984) (denying defendant’s request to take
21

photographs of victim’s room to show lighting conditions because

such conditions could not reliably be reproduced). 

Several of these courts suggested that had the defense made 

a showing of relevance and need, the inspection would have been 

permissible.3 See Muscari, supra, 807 A.2d at 417 (noting 

general trend among states to permit inspections on “some 

showing that the requested intrusion is relevant and material to 

the defense”); Bullen, supra, 204 Cal. App. 3d at 26 (requiring 

“defendant to demonstrate sufficient ‘plausible justification’

and ‘good cause’”); Nicholas, supra, 599 N.Y.S.2d at 783 

(requiring “prima facie showing” that discovery will yield 

“relevant material evidence”).

In light of New Jersey’s discovery precedents, and out-ofstate authority, we next turn to the standard that a defendant 

must satisfy to secure permission to inspect an alleged victim’s 

home that is designated a crime scene.

 

3 In one case cited by the State, the Oregon Supreme Court denied 

an inspection of a home on the basis that the trial court, under 

Oregon law, had no inherent power to issue the order to a nonparty. See State ex rel. Beach v. Norblad, 781 P.2d 349, 350 

(Or. 1989) (“Absent party status, counsel has not identified any 

other basis (and we know of none) under which the . . . trial 

judge could . . . issue such an order to [the homeowner].”

(citing State ex rel. Roach v. Roth, 652 P.2d 779, 780 (Or. 

1982) (holding that Oregon courts have “no general power, merely 

by virtue of conducting a trial, to order persons how to conduct 

themselves outside the courtroom”))). Because New Jersey 

courts, by law, have greater power to order discovery than 

Oregon courts, the Oregon case is not germane.
22

V.

We begin by reaffirming that our trial courts are empowered 

to order discovery beyond that mandated by our court rules when 

doing so will further the truth-seeking function or ensure the 

fairness of a trial. See W.C., supra, 85 N.J. at 221. In 

exercising its discretion, a court must weigh the accused’s need 

for a particular species of discovery against the impact the 

discovery request may have on the privacy and lives of witnesses 

and alleged victims.

A discovery request by the defense for a psychiatric or 

gynecological examination of an alleged victim is not routine. 

Such requests are rarely made. Moreover, psychiatric and 

physical examinations are extraordinary intrusions into an 

alleged victim’s mind and body, and therefore the heightened 

standard of substantial need is appropriate in such cases. See

D.R.H., supra, 127 N.J. at 258-59; R.W., supra, 104 N.J. at 28 

n.3. Any analysis of substantial need must account for the 

potential trauma, embarrassment, and anxiety that might be 

caused by granting such a discovery request.

In contrast, a defense attorney’s visit to the scene of the 

crime is a rather ordinary undertaking, and in some 

circumstances, such an inspection might constitute a 

professional obligation. See Thomas, supra, 255 F. Supp. 2d at 

112. The State generally will have thoroughly investigated a 
23

crime scene, securing evidence and taking photographs. 

Familiarity with a crime scene may be essential for an effective 

direct or cross-examination of a witness -- and even for 

presenting exculpatory evidence. For example, the inability of 

a witness to have observed an event because of the layout of the

area can break a case. See id. at 109-10. In many instances, 

the defense will not be on an equal footing with the prosecution 

if it is barred from a crime scene to which the prosecutor has 

access. 

Obviously, when a crime scene is the home of a victim, 

other significant concerns arise. The right to privacy in one’s 

home is a basic right, and all alleged victims of crime have an 

interest in not revisiting a traumatic event. However, the 

undeniable reality is that a criminal prosecution will intrude

into an alleged victim’s privacy. In this case, prosecutor’s 

investigators took pieces of rug and photographed N.A.’s home; 

the child and her parents were questioned by law enforcement 

authorities; at a pretrial hearing the mother was subject to 

extensive questioning on direct and cross-examination about many 

aspects of the private life of her family; and N.A. and her 

mother will have to testify at trial.

Participation in the criminal justice process will 

undoubtedly be a source of inconvenience and anxiety, and will

result in some incursion into privacy rights of witnesses. Some 
24

of these adverse consequences are the inevitable price that must 

be paid to ensure the accused receives a fair trial. 

Nevertheless, let us be clear: victims have a right “[t]o be 

free from intimidation, harassment or abuse.” N.J.S.A. 52:4B36(c). Any discovery request that has as its objective causing 

intimidation, harassment, or abuse of an alleged victim is 

wholly illegitimate and must be denied. We will not sanction 

the use of the criminal justice system for an impermissible

purpose. 

However, when the defense has made a legitimate request to 

inspect a crime scene that is an alleged victim’s home and has 

articulated a reasonable basis to believe the inspection will 

lead to relevant evidence on a material issue, then, subject to 

appropriate time, place, and manner restrictions intended to 

protect the privacy interests of the alleged victim and her 

family, the discovery should be granted. This test is similar 

to the one adopted in W.C., supra, 85 N.J. at 226 -- a case 

involving a request for a compulsory identification procedure --

and comports with standards in other jurisdictions. We 

emphasize that discovery requests based on sheer speculation 

about what is expected to be gained from an inspection of an 

alleged victim’s home will not suffice. The burden rests with 

the defendant to show a reasonable basis to believe that a home 

inspection of limited duration will yield relevant evidence.
25

We add this caveat: defendants who seek an inspection 

beyond the first one granted will be held to a heightened 

standard and will have to demonstrate substantial need, which 

will include giving articulable reasons why the initial 

inspection was not adequate for investigative purposes. In such 

circumstances, the privacy interests of the alleged victim’s 

family will weigh even more heavily in the balance. We also 

recognize that there may be exceptional situations in which the 

trial court might permit an inspection by defense counsel but 

deem it necessary to exclude the defendant from participating. 

Each case will depend on its unique facts and require the trial 

court to exercise its sound discretion.

We now turn to the facts of this case to determine whether 

the family court properly exercised its discretion.

VI.

A.B. is charged as a juvenile with aggravated sexual 

assault and endangering the welfare of his six-year-old cousin, 

N.A. An adjudication that he committed these offenses will have 

immediate and long-term dire consequences. He faces potential 

incarceration and designation as a sex offender, which will 

trigger registration and notification obligations. Therefore, 

A.B. must have a fair opportunity to defend against these 

charges.
26

The trial of this case is likely to be a credibility 

contest between N.A. and A.B. No physical evidence corroborates 

the charges. N.A. alleges that A.B. coaxed her to perform oral 

sex in her bedroom on the Fourth of July -- the day of the 

cookout at her home when four adults apparently were on the 

patio outside and her mother in the kitchen. She also claims 

that A.B. improperly touched her genitalia on several occasions. 

Although A.B. was present in N.A.’s home on the day of the 

cookout, he has denied ever sexually abusing his cousin. A.B. 

posits that on that day it was not possible for the acts alleged 

by N.A. to have occurred undetected by any of the five adults. 

The defense notes that the photographs provided by the State do 

not show that N.A.’s bedroom windows look out onto the 

patio/pool area, that the kitchen is steps away from the 

bedroom, and that there is a clear view looking into the bedroom

from the hallway. A.B.’s attorney asserts that it is essential

for him to understand the dimensional layout of the rooms, to 

view firsthand the sightlines, and to take photographs helpful 

to the defense. Counsel maintains that he will be disadvantaged 

because the prosecutor has had the opportunity to view the scene 

while he has not. A.B.’s counsel has stated that it is his 

routine practice to visit the scene of the crime and that he 

would consider himself derelict if he failed to do so. 
27

The trial court weighed the competing interests: the 

juvenile’s need for access to the scene to prepare a defense, 

and the alleged victim and her family’s desire not to suffer the 

traumatizing effect of the juvenile’s presence in their home, 

with his attorney in tow, “look[ing] for things they can use 

against [them] in Court.” The family court carefully crafted an 

order that took into account the parties’ concerns. The court 

barred the juvenile’s parents from participating in the 

inspection, restricted the inspection to the victim’s room and 

the juvenile’s sleeping area, and limited the inspection to no 

more than thirty minutes. The court also allowed for an 

investigator from the Prosecutor’s Office to be present during 

the defense inspection and for the family to “be in another part 

of the house or outside of the house” during the visit. N.A. is 

not required to be present or even know about the visit.

Having thoroughly reviewed the record, we cannot conclude 

that the family court abused its discretion. N.A.’s family must 

comply with the discovery order.4 

 

4 We disapprove of the comment in State v. Gomez, 430 N.J. Super.

175, 187 (App. Div. 2013), that court orders can only be 

directed at the prosecutor’s office and not to alleged victims 

or other witnesses. There is simply no support for that 

assertion. See W.C., supra, 85 N.J. at 225 (stating that court 

order may be obtained to compel attendance at lineup of alleged 

victim or other witness); see also State v. Garcia, 195 N.J.

192, 204 (2008) (noting that non-party Hudson County jailor must

comply with order to transfer subpoenaed inmate).
28

Last, the entry of the order -- after the parties were 

given notice of the juvenile’s request and a reasonable 

opportunity to be heard -- does not sanction an unreasonable 

search under the Fourth Amendment of the United States 

Constitution, as the State and Attorney General contend. They 

do not contend that a properly authorized order requiring a 

compulsory identification procedure or a psychiatric or physical 

examination violates the Fourth Amendment. They do not explain 

why a properly authorized order to inspect a home is different 

in kind for Fourth Amendment purposes. Indeed, a court has the 

authority to order, if appropriate, a jury to view the scene of 

a crime. N.J.S.A. 2B:23-16(a) (“At any time during trial the 

court may order that the jury view the lands, places or personal 

property in question to understand the evidence better.”). 

VII.

For the reasons expressed in this opinion, we affirm the 

judgment of the Appellate Division and remand to the family 

court for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and 

FERNANDEZ-VINA; and JUDGE RODRÍGUEZ (temporarily assigned) join 

in JUSTICE ALBIN’s opinion. JUDGE CUFF (temporarily assigned) 

did not participate.
1

 SUPREME COURT OF NEW JERSEY

NO. A-74 SEPTEMBER TERM 2012

ON APPEAL FROM Appellate Division, Superior Court

STATE OF NEW JERSEY

IN THE INTEREST OF

A.B.

DECIDED September 24, 2014

Chief Justice Rabner PRESIDING

OPINION BY Justice Albin

CONCURRING/DISSENTING OPINION BY 

DISSENTING OPINION BY 

CHECKLIST AFFIRM/REMAND

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUSTICE FERNANDEZ-VINA X

JUDGE RODRÍGUEZ (t/a) X

JUDGE CUFF (t/a) ------------------------- -----------------------

6