to Ross, in support of his argument that the evidence in question is admissible in New Jersey. In Ross, the defendant was tried for sexually assaulting a ten-year-old girl. The defendant, like the petitioner in this case, denied that any acts of sexual abuse took place. 249 N.J. Super. at 248. Prior to trial, the defense came into possession of DYFS reports which stated that the victim had claimed to have been sexually abused by two other individuals on prior occasions. Id. at 248-249. Defendant sought to admit evidence of these prior accusations pursuant to N.J.S.A. 2C:14-7. The trial judge refused to admit the evidence. Id.
The Appellate Division reversed. In ordering a new trial, the court ruled that defendant was entitled to a pretrial hearing at which the veracity of the victim's claims of prior sexual abuse would be explored. If the child's claims were judicially determined to be false "the incidents could no longer be characterized as sexual conduct, proof of which is barred by the Rape Shield law." Id. at 252. Rather, the court held, "proof of the probably false allegations themselves would be admissible to impeach the victim's credibility." Id. If, on the other hand, the allegations were deemed true, they would be characterized as sexual conduct. However, the court ruled that such evidence was not necessarily inadmissible. The court was of the view that the evidence might be admissible to show an alternative source of sexual knowledge, as in Budis, or to offer a motive to fabricate. Id. The admissibility of evidence of probably true prior allegations was to be determined by the trial judge at the pretrial hearing. Id.
Petitioner claims that had his trial counsel properly produced the evidence contained in the DYFS records at trial, petitioner could have then employed the mandated procedures of N.J.S.A. 2C:14-7. Petitioner contends that if the trial court had ruled against him, he would have had direct judicial review of that decision, as was afforded the defendant in Ross. The court agrees that petitioner has the right under Budis and Ross to present the evidence in question to the trial court in accordance with the procedures set out in N.J.S.A. 2C:14-7. If the trial court determines that the victim's allegations of prior abuse are false, the evidence would likely be admissible according to Ross. If the trial court deems the prior allegations to be true, it shall determine their admissibility. The court notes that in the event that the allegations are judged to be true, State v. Budis suggests that evidence of prior true accusations are inadmissible for purposes of impeaching the victim's credibility. See Budis, 125 N.J. 519, 540, 593 A.2d 784 (evidence of prior abuse of child victim admissible to show knowledge of sexual practices, but inadmissible to attack victim's character). In any event, should the trial court rule against petitioner on the within evidentiary question at his new trial, and should he again be convicted, he will be afforded direct judicial review of the adverse ruling.
As articulated in the opinion of October 6, 1994, this court was uneasy about the result of petitioner's trial due to the evidence contained in the DYFS records, which was never presented to the trial court. After reconsidering petitioner's habeas application, the court is convinced that relief is justified in this case. Accordingly, petitioner's application for a writ of habeas corpus is granted, and it is ordered that defendant receive a new trial within 90 days or the indictment will be dismissed. An order accompanies this opinion.
THIS MATTER having come before the court on motion of petitioner, Chris Carrigan, brought pro se under Rule 52(b) of the Federal Rules of Civil Procedure for amendment of the court's judgment denying his petition for a writ of habeas corpus and for an evidentiary hearing; and the court having read and considered the written submissions for and against the motion; and good cause appearing,
IT IS on this 7th day of December, 1994,
ORDERED that petitioner's application for a writ of habeas corpus be and is hereby granted; and it is further
ORDERED that petitioner be granted a new trial within 90 days of the entry hereof or Indictment No. 87-09-1609, Superior Court of New Jersey, Criminal Division, Monmouth County, be dismissed.
CLARKSON S. FISHER
United States District Judge