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In re Order Compelling Production for

Decided: May 26, 1989.


On appeal from Superior Court of New Jersey, Law Division, Monmouth County.

King, Brody and Skillman. The opinion of the court was delivered by Skillman, J.A.D.


[233 NJSuper Page 489] This appeal requires us to decide whether a criminal defendant has a constitutional right to an in camera review of the notes of communications between his accusers and their attorney to determine whether they contain statements which are inconsistent with their accusations against him. The issue arises in the context of charges of sexual assault against

defendant by his minor daughters, who subsequently have had confidential communications with a court appointed law guardian representing them in civil proceedings initiated by the Division of Youth and Family Services (DYFS). We conclude that defendant has no constitutional right to breach the confidentiality of the attorney-client privilege under these circumstances.

On October 12, 1987, defendant's wife, Linda, disclosed to DYFS a letter from her daughter, L.P., which asserted that defendant had made her "go to his room" and "do things [she] wasn't supposed to do." Thereafter, DYFS, in conjunction with local law enforcement officials, conducted a series of interviews with the defendant, Linda, L.P. and another of defendant's daughters, K.P. L.P., then age twelve, recounted how defendant forced her to have sexual intercourse and oral sex with him over a period of three or four years. K.P., then age fifteen, revealed that defendant rubbed "his crotch" against her thigh when she was ten or eleven years old.

Defendant admitted having sexual intercourse with two of his daughters from a previous marriage. He also admitted rubbing his penis against L.P.'s vagina, but he denied any penetration. Defendant denied having any sexual contact with K.P.

Defendant was indicted by a Monmouth County Grand Jury on February 23, 1988. The first and second counts of the indictment charge defendant with aggravated sexual assault and sexual assault upon L.P., contrary to N.J.S.A. 2C:14-2a and N.J.S.A. 2C:14-2b. The fourth count charges defendant with endangering the welfare of L.P., contrary to N.J.S.A. 2C:24-4a. The third and fifth counts charge defendant with sexual assault upon K.P. and endangering the welfare of K.P. As a condition of bail, defendant moved from the family home and agreed to have no contact with his children.

According to DYFS, Linda repeatedly questioned the truthfulness of L.P. and K.P.'s allegations against defendant. In fact, Linda, who was assisting in the preparation of the defense,

seemed to be hampering the criminal investigation by restricting the prosecutor's access to her daughters. Moreover, Linda rebuffed DYFS' efforts to secure counseling or therapy for the girls. At some point, both daughters recanted their allegations against defendant.

Subsequently, DYFS filed a verified complaint seeking to place L.P., K.P. and defendant's son, E.P., under its care and supervision. The complaint was accompanied by an order to show cause assigning a law guardian for the minor children.*fn2 Upon her appointment, the law guardian sent a letter to the minors which stated in part as follows:

I would like to introduce myself. I am the court appointed attorney who will represent you in the Court action involving D.Y.F.S. I am called your law guardian. My job is to speak with you and find out what your wishes are and tell those wishes to the Judge. I must also protect your interest in the Court case. I work for you -- not your parents -- and not D.Y.F.S. Anything you and I discuss is CONFIDENTIAL, which means I cannot discuss it with anyone without your permission. [Emphasis added.]

A hearing was held on September 23, 1988 which resulted in an order placing L.P., K.P. and E.P. under DYFS' temporary care and supervision, ordering a family evaluation and restraining defendant from contacting the minors or visiting the family residence.

Subsequently, there was a flurry of correspondence between the law guardian and defendant's counsel, who represents him in both the criminal and civil actions. The law guardian advised defendant's counsel that she would not permit her to have contact with the children, except with the law guardian's consent. Thereafter, defendant's counsel requested "memorializations or copies of all interviews with the daughters . . . concerning the alleged criminal contact on them by their father." The

law guardian responded that "[n]o materials will be provided to you as such matters are privileged."

On October 11, 1988, defendant filed motions in the criminal case to compel DYFS and the law guardian to release all records relating to interviews with L.P. and K.P. Defendant's motion seeking release of the law guardian's notes was supported by his attorney's affidavit which stated in pertinent part:

[O]n information and belief, the victims have on several occasions made many statements indicating that the original complaints to the police were untruthful.

This would be exculpatory material held by a governmental agency to which defendant is entitled under Brady. Therefore, defendant requests that the . . . Law Guardian . . . be compelled to release any and all records of interviews with the victims along with any notes of unmemorialized conversations with the victims wherein they indicated the original complaints to the police were lies.

In a reply brief, defendant agreed to an in camera inspection of the records to determine whether they contain "any contradictory statements made by the girls which would affect their credibility at trial."

The trial court decided the motions in a one paragraph letter which stated:

This will advise you that I have again reviewed [ State v. Cusick, 219 N.J. Super. 452 (App.Div.1987) and Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987)] and I am satisfied that the defendant's request to compel the Division of Youth and Family Services to release all records including interviews with the victims is warranted, and further, that the Office of the Public Advocate/Law Guardian should release all records ...

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