SYLLABUS
This syllabus is not part of the Court’s opinion. 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 Court and may not summarize all portions of the opinion.
State v. R.F.P. (A-5-25) (090566)
Argued March 2, 2026 -- Decided July 9, 2026
JUSTICE FASCIALE, writing for the Court.
In this appeal, the Court considers whether the trial judge correctly applied the standard set forth in State v. Chambers, 252 N.J. 561 (2023), in granting defendant R.F.P.’s motion for an in camera review of the alleged sexual assault victim’s pre-incident mental health records.
In May 2021, “Kim,” the alleged victim, age eighteen, stated that her uncle had sexually assaulted her. Kim was examined by a sexual assault nurse and interviewed by detectives from the Bergen County Prosecutor’s Office. Kim told the detectives that while she was in defendant’s room searching for her cat, defendant kissed her, pushed her onto his bed, and then proceeded to engage in further sexual acts without her consent. Kim reported her medical history as “[a]utism, bipolar I, PTSD, asthma, seizures, hypothyroid, [and] anxiety,” and listed her current medications. A grand jury charged defendant with offenses including sexual assault.
According to the defense, Kim gave conflicting accounts of the incident. After learning about Kim’s diagnoses and psychotropic medications, defense counsel retained an investigator to learn whether a connection exists between Kim’s mental illnesses and her ability to perceive, recall, or recount details. After interviewing Kim’s family members, best friend, and boyfriend, the defense filed a motion for an in camera inspection of her pre-incident mental health records.
The trial judge considered Kim’s mental illnesses; the list of multiple medications she had been prescribed at the time of the incident, including an antipsychotic; Kim’s statements to the police, including that she had reported rape on “countless occasions”; Kim’s statement to the sexual assault nurse examiner; defendant’s statements; the statements from Kim’s family and friends, which corroborated that Kim had a history of making false accusations of rape and not being truthful; evidence that Kim left a hospital against clinical advice close in time to the incident; Kim’s best friend’s statement that he believed Kim was not taking her medicine; and medical articles indicating that bipolar disorder and PTSD can produce testimonial incapacities and on autism and the ability and tendency to lie.
1
The trial judge ordered that Kim’s pre-incident mental health treatment records, limited to her two most recent hospitalizations, be produced to the trial judge for an in camera review. He stated that the production of mental health records for in camera review does not mean that those records will automatically be disclosed to defendant following such review. The Appellate Division determined that defendant failed to meet the heightened discovery standard established in Chambers and reversed. The Court granted leave to appeal. 261 N.J. 568 (2025).
HELD: The trial judge correctly applied Chambers, and, upon review of the record, the Court discerns no abuse of discretion in his finding that defendant made a sufficient showing for the judge to conduct a limited and narrow in camera review.
1. A heightened discovery standard governs a defendant’s motion for pre-incident mental health records from a sexual assault victim. The standard is rigorous due to the need to balance a criminal defendant’s constitutional right to present a complete a defense against the significant privacy interests of sexual assault victims. In Chambers, the Court held that “a defendant is entitled to present a meaningful defense by making a good-faith request for pre-incident mental health records of a sexual assault victim.” 252 N.J. at 589. (p. 17)
2. Chambers requires that victims be given notice and the opportunity to be heard when a defendant files a motion seeking access to pre-incident mental health records. Noting that, here, Kim did not initially receive notice, the Court reminds the State of its duty to provide timely notice to a victim whenever a defendant files a Chambers motion and reminds trial judges to ensure -- at the onset of the hearing --that the victim has received both notice and an opportunity to oppose the motion, as required by the Crime Victims’ Bill of Rights, N.J.S.A. 52:4B-36(r). (pp. 17-18)
3. The first stage of the Chambers standard requires a defendant to show, by a preponderance of the evidence, that (1) the defendant has “a substantial, particularized need” for the records; (2) “the information sought [therein] is relevant and material;” and (3) “the information is not available through less intrusive means.” Id. at 590. If a defendant satisfies that three-part standard, then the defendant is entitled to have the trial judge conduct an in camera inspection. Id. at 591. During the second stage, the judge must determine whether to “pierce” the applicable mental health privilege, redact the records, and make them available under a protective order. Id. at 592. At issue here is the first stage: whether defendant is entitled to have the trial judge conduct an in camera inspection of the records. (p. 18)
4. “To establish a substantial, particularized need for access to mental health records,” a defendant must make “some evidential showing that connects the alleged mental illness to the victim’s inability to perceive, recall, or recount the events of the alleged assault, or a proclivity to imagine or fabricate them -- the sole
2
permissible purpose for which access may be granted.” Id. at 590. The Court reviews the evidence here in detail and explains that, in its entirety, defendant’s proffered evidence shows: Kim has specific mental illness diagnoses; Kim received treatment for her mental illnesses at several psychiatric facilities; Kim checked out of the most recent facility against medical advice; Kim is prescribed medication for her mental illnesses; Kim may not have been medication-compliant at the time of the alleged assault; Kim’s friends and family describe her as having “a tendency to lie” and as someone who, due to her mental illnesses, may not appreciate the consequences of lying; Kim demonstrated an inability to accurately recount past events; Kim provided conflicting accounts regarding details of the alleged assault; and Kim’s mental illnesses can produce the types of testimonial incapacities she has demonstrated. Collectively, the evidence amounts to more than bald assertions that Kim’s mental illnesses may affect her ability to perceive, recall, or recollect the assault, or a proclivity to fabricate it. Accordingly, defendant established a substantial and particularized need for Kim’s pre-incident mental health records and thereby satisfied the first prong of the Chambers analysis. (pp. 18-28)
5. The second prong requires defendant to prove that the information sought is both relevant and material. Ibid. The central question here is whether defendant reasonably believed that Kim freely and affirmatively consented to engage in sexual activity with him. Because the record shows that information sought from the records may indicate that Kim has a proclivity to imagine or fabricate the alleged assault, the information is relevant and material to defendant’s defense. (pp. 29-31)
6. Under the third prong, defendant must demonstrate by a preponderance of the evidence that the information sought is not available through less intrusive means. Id. at 591. Here, defendant has demonstrated gaps in the evidence as to Kim’s mental illnesses and treatment, and the only way for defendant to reliably obtain such information is through Kim’s pre-incident mental health records. (pp. 31-32)
7. The Court reiterates that this case concerns only the initial stage of the Chambers analysis. The Chambers framework is intentionally structured to impose increasing burdens on defendants as they progress from stage one to stage two, thereby aligning the degree of intrusion with the protection due to the alleged victim’s privacy rights. As the trial judge expressly acknowledged, his preliminary determination to conduct a narrow in camera review does not mean that defendant will automatically be entitled to the mental health records. If, after that review, the judge determines that the records contain relevant material and that the mental health privilege should be pierced, Kim will be afforded an opportunity to challenge those findings. Noting that, under Chambers, requests for an alleged sexual assault victim’s pre-incident mental health records “should remain rare,” id. at 571, the Court finds that this is one such rare case. (pp. 33-35)
3
REVERSED.
JUSTICE-PIERRE-LOUIS, dissenting, disagrees with the determination that defendant’s statements are not relevant to whether an in camera review is warranted. Justice Pierre-Louis notes that, when asked by police, “You knew it was not consensual, right?” defendant responded “Yes” and corroborated many details of the incident that Kim reported, yet now moves for access to Kim’s mental health records based on a “good faith” belief that her mental health conditions potentially affect her ability to perceive events and relay information. In Justice Pierre-Louis’s view, the fact that defendant stated in his own words that Kim did not imagine or falsify what transpired during the alleged sexual assault undermines the relevance and materiality of Kim’s confidential records. And failure to consider that statement, if admissible, undermines the delicate balancing of defendants’ and victims’ rights established in Chambers, Justice Pierre-Louis explains.
JUSTICES PATTERSON, WAINER APTER, NORIEGA, and HOFFMAN join
in JUSTICE FASCIALE’s opinion. JUSTICE PIERRE-LOUIS filed a dissent, in which CHIEF JUSTICE RABNER joins.
4
SUPREME COURT OF NEW JERSEY
A-5 September Term 2025
090566
State of New Jersey,
Plaintiff-Respondent,
v.
R.F.P.,
Defendant-Appellant.
K.S.,
Intervenor-Respondent.
On appeal from the Superior Court,
Appellate Division.
Argued Decided
March 2, 2026 July 9, 2026
Alyssa Aiello, Assistant Deputy Public Defender, argued
the cause for appellant (Jennifer N. Sellitti, Public
Defender, attorney; Alyssa Aiello, of counsel and on the
briefs).
Deepa S. Y. Jacobs, Assistant Prosecutor, argued the
cause for respondent (Mark Musella, Bergen County
Prosecutor, attorney; Deepa S. Y. Jacobs, of counsel and
on the briefs).
Richard D. Pompelio argued the cause for intervenor K.S.
(New Jersey Crime Victims’ Law Center, attorneys;
1
Dyanne Veloz Lluch, of counsel and on the brief, and
Richard D. Pompelio, on the brief).
Angela E. Juneau argued the cause for amicus curiae
Association of Criminal Defense Lawyers of New Jersey
(Pashman Stein Walder Hayden, attorneys; C.J. Griffin,
of counsel, and Angela E. Juneau, of counsel and on the
brief).
Ronald K. Chen argued the cause for amicus curiae
American Civil Liberties Union of New Jersey (Rutgers
Constitutional Rights Clinic Center for Law & Justice,
and American Civil Liberties Union of New Jersey
Foundation, attorneys; Jeanne LoCicero and Ezra D.
Rosenberg, of counsel and on the brief, and Ronald K.
Chen and Jessica Rofé, on the briefs).
Kaili E. Matthews, Deputy Attorney General, argued the
cause for amicus curiae Attorney General of New Jersey
(Jennifer Davenport, Attorney General, attorney; Kaili E.
Matthews, of counsel and on the brief).
JUSTICE FASCIALE delivered the opinion of the Court.
In State v. Chambers, we set forth a standard to balance two important
sets of rights: a defendant’s constitutional right to present a meaningful
defense, and the significant privacy interests of sexual assault victims. 252
N.J. 561, 589-91 (2023). Under that careful balance, a defendant may obtain
an in camera inspection of a victim’s pre-incident mental health records only
upon showing, by a preponderance of the evidence, “(1) that there is a
substantial, particularized need for such access; (2) that the information sought
2
is relevant and material; and (3) that the information is not available through
less intrusive means.” Ibid. In this appeal, we consider whether the trial judge
abused his discretion by granting defendant’s motion for an in camera review
of the alleged sexual assault victim’s pre-incident mental health records.
We conclude the trial judge correctly applied Chambers, and, upon
review of the record, we discern no abuse of discretion in his finding that
defendant made a sufficient showing for the trial judge to conduct a limited
and narrow in camera review. We therefore reverse the judgment of the
Appellate Division.
I.
In April 2021, Kim, the alleged victim, age eighteen, moved to live with
her biological father, Andrew. 1 Andrew resided with his brother (defendant);
his sister, Tamara; and her boyfriend, Scott. On May 30, 2021, Kim told
Andrew that defendant sexually assaulted her the day before. Kim and
Andrew went to the hospital, where Kim was examined by a sexual assault
nurse and interviewed by detectives from the Bergen County Prosecutor’s
Office.
Kim told the detectives that while she was in defendant’s room searching
for her cat, defendant kissed her, pushed her onto his bed, and then proceeded
1
We use pseudonyms for the alleged victim and her family members.
3
to engage in further sexual acts without her consent. Kim self-reported her
medical history as “[a]utism, bipolar I, PTSD, asthma, seizures, hypothyroid,
[and] anxiety,” and that her current medications included “[V]istaril,
[S]eroquel, trazadone, lithium, desmopressin, albuterol, Lamictal, [S]ynthroid,
clindamycin, benzoyl peroxide, [and] ‘intonis.’”
Kim also shared with the detectives that after the incident, she texted her
best friend and former boyfriend, Ivan. In their text messages, Kim stated,
“There is something [defendant] did in this house . . . I don’t know who to tell
. . . nobody will believe me.” Ivan then asked if “it was sexual”; Kim
responded “yes.” Ivan further inquired whether defendant “raped someone,”
and Kim replied, “He did it to me and told me that I can’t tell anyone.” Kim
said multiple times her father “won’t believe me.” The following day, Kim
informed the police -- in a sworn statement -- that she had previously reported
to her father that she had been raped on “countless occasions.” Contrary to her
statements to Ivan, Kim told officers that her father always took her reports of
rape seriously.
Defendant, during his lengthy statement to the police, explained that
after Kim went into his bedroom to look for her cat, she got into his bed to
“cuddle,” and while they cuddled, their touching became sexual and “one thing
4
led to another.” He explained the sex was consensual, conceded it was
“wrong,” and expressed shame and regret. 2
A grand jury indicted defendant and charged him with various offenses,
including second-degree sexual assault and fourth-degree criminal sexual
contact.
According to the defense, Kim gave conflicting accounts regarding the
details of the incident, most notably “on the point of ejaculation.” In her text
2
The State asserts that, at the conclusion of defendant’s statement to police, he “reluctantly conceded that [Kim] was uncomfortable” and “[u]ltimately . . . admitted . . . that he knew his actions were not consensual.” The defense, however, argues that this characterization misrepresents his statement. Specifically, defendant asserts that (1) he believed Kim was merely “uncomfortable in the position in which she was lying on the bed” and (2) the “purported admissions” were “semi-affirmative answers” given by defendant, a developmentally disabled person, after being “doggedly” questioned by police for over two hours.
We disagree with our dissenting colleague that defendant’s statements to police are dispositive to a Chambers analysis. The parties dispute the substance of defendant’s statements, and defendant indicated his intent to challenge their trial admissibility. We cannot conclude, as the dissent contends, that defendant’s “own words” conclusively show that “Kim did not imagine or falsify what transpired during the alleged sexual assault.” Post at ___ (slip op. at 2). Defendants are presumed innocent until proven guilty and the weight of the prosecution’s evidence, including defendant’s own statements, is for the jury to resolve.
Additionally, any purported admissions made by defendant do not
eliminate his right to mount a meaningful defense. Under the totality of the facts of this case, which are in stark contrast to the facts in Chambers, his statements are not relevant to our analysis in determining whether defendant is entitled to a limited and narrow in camera review of the records.
5
exchange with Ivan, Kim stated defendant “came on me.” The next day, she
reportedly told the sexual assault nurse examiner she was not sure if defendant
ejaculated. In response to the police asking Kim if defendant ejaculated, Kim
told them, “I wouldn’t have known what to look for.” Upon police follow-up
questions, Kim responded “I don’t know, I don’t know.”
After learning about Kim’s diagnoses and psychotropic medications,
defense counsel retained an investigator to learn whether a connection exists
between Kim’s self-reported mental illnesses and her ability to perceive,
recall, or recount details of the incident or might reflect a proclivity to imagine
or fabricate. In February 2022, the investigator interviewed Tamara and Scott,
and in March 2023, he interviewed Ivan and Peggy, Kim’s adoptive mother.
Tamara had also been interviewed by a different investigator in 2021, just a
few weeks after the incident occurred. The record contains the investigators’
summaries of the interviews.
In her 2021 interview, Tamara explained that Kim’s biological mother
died when Kim was three years old and that Andrew lost custody of Kim due
to his own disabilities. Tamara stated that in April (a month or two before the
incident), Andrew helped Kim check herself out of Virtua Memorial Hospital,
where Kim had been receiving treatment for mental health illnesses.
According to Tamara, Kim left the hospital without her adoptive parents’
6
knowledge. Tamara reported that Kim bragged about accusing an exboyfriend of rape when he broke up with her, and that she planned to make it
seem like her boyfriend raped her because she did not get what she wanted.
Tamara also told investigators that Kim had a habit of making false
accusations when upset and had an inability to appreciate the consequences of
lying due to her mental incapacities.
Scott told the investigator that Kim had been in a psychiatric hospital
before she moved into the house where the incident occurred. Scott
corroborated Tamara’s statement that Kim was not supposed to be released
from the hospital and that Andrew checked her out of that hospital without her
adoptive parents’ knowledge. Scott explained that he too had heard Kim brag
about making false accusations of rape against various men. And that when he
asked Kim why she would do that, Kim stated, “[T]hat’s how I am.”
Peggy informed investigators that she and her husband adopted Kim at
four years old, and she described Kim as someone with “many learning
disabilities and challenges.” Peggy reported that Kim had an extensive history
of psychiatric treatment, including a ten-month stay in a residential group
home. She confirmed that, prior to moving into the house with her biological
father, Kim left the program at Virtua Memorial Hospital against clinical
advice. Stating that she was uncomfortable talking about the incident, Peggy
7
explained that Kim is “troubled and it is hard to believe what she says
sometimes.”
Ivan corroborated Peggy’s description of Kim. He said that Kim had
several mental health conditions, including autism and PTSD, and that Kim
had been prescribed medication. Ivan did not believe Kim took her medication
and described her, like the others who were interviewed, as someone who
“tends to lie a lot.” Ivan said he was her best friend at the time of the incident
and the first person she contacted. 3
Defendant filed a motion for an in camera inspection of Kim’s preincident mental health records. Following the standard we outlined in
Chambers, 252 N.J. at 589-91, he argued that (1) there is a “substantial,
particularized need” for such inspection because Kim’s mental illnesses were
connected to her ability to “perceive, recall, or recount the events of the
alleged assault, or a proclivity to imagine or fabricate them”; (2) the mental
health “information sought is relevant and material” to whether defendant
reasonably believed that Kim consented to the sexual acts; and (3) the
“information [sought] is not available through less intrusive means.”
Defendant also supplied the trial judge with medical articles addressing bipolar
3
Ivan also underwent a sworn audio interview with the State in which he explained that Kim contacted him over Facebook Messenger after the assault.
8
disorder and PTSD. The articles explained that those conditions can produce
testimonial incapacities, specifically false memories and an inability to
accurately recall or recount events. 4 The State provided the trial judge articles
as well, focused on autism and the ability and tendency to lie. 5
The trial judge conducted oral argument and rendered a comprehensive
oral opinion. In exercising his discretion to order an in camera inspection, the
judge considered: Kim’s mental illnesses; the list of multiple medications she
had been prescribed at the time of the incident, including an antipsychotic,
Seroquel; Kim’s statements to the police, including that she had reported rape
on “countless occasions”; Kim’s statement to the sexual assault nurse
examiner; defendant’s statements; the statements from Tamara, Scott, Ivan,
and Peggy, which corroborated that Kim had a history of making false
accusations of rape and not being truthful; evidence that Kim left Virtua
4
Defendant presented the following articles: Andrea Pozza et al., PostTraumatic Stress Disorder Secondary to Manic Episodes with Hypersexuality in Bipolar Disorder: A Case Study of Forensic Psychotherapy, 17 Clinical Neuropsychiatry 181 (2020); Henry Otgaar et al., What Drives False Memories in Psychopathology? A Case for Associative Activation, 5 Clinical Psych. Sci. 1048 (2017); Brandon May, Is There a Link Between Bipolar Disorder and Lying?, Med. News Today (May 25, 2023).
5
The State presented the following articles: Pier Jaarsma et al., Living the Categorical Imperative: Autistic Perspectives on Lying and Truth Telling Between Kant and Care Ethics, 15 Med. Health Care & Phil. 271 (2011); Annie S. Li et al., Exploring the Ability to Deceive in Children With Autism Spectrum Disorders, 41 J. Autism Dev. Disorder 185 (2011).
9
Memorial Hospital against clinical advice close in time to the incident; Ivan’s
statement that he believed Kim was not taking her medicine; and the medical
articles. In his oral decision, the trial judge stated:
The discovery provided by the State and the interviews
conducted by the Defense investigator with [Kim]’s
family members and friends do demonstrate that she
has had multiple mental health diagnoses and
developmental disabilities that have required multiple
hospitalizations.
Also, the substance of the interviews with various
family and friends of [Kim], although ultimately that
may be left to a question for the jury to consider
whether or not [Kim]’s accusations are credible, these
interviews with family and friends also are consistent
with another with respect to a tendency or a knowledge
that these witnesses have of [Kim]’s . . . alleged
tendency . . . to lie or to fabricate, including about the
very substance of the allegations that she has made
against [defendant].
This evidence of pre-incident mental illness establishes
certainly, and this Court agrees, by a preponderance of
the evidence that there is a substantial particularized
need for [Kim]’s pre-incident mental health records.
The information sought from these records most
certainly is relevant and material to this case as it may
indicate that [Kim] may have a proclivity to imagine or
fabricate the alleged sexual assault as well as have a
bearing on her ability to perceive, recall or recollect,
and most certainly this information is not available
through any less intrusive means.
So, this Court agrees while not agreeing fully that any
of these records should just be released to the Defense,
most certainly the Defense has met its burden for the
10
Court to conduct an in camera review of [Kim]’s preincident mental health records.
Accordingly, the trial judge ordered that Kim’s pre-incident mental health
treatment records limited to Virtua Memorial Hospital and Bergen Regional
Medical Center -- her two most recent hospitalizations -- be produced to the
trial judge for an in camera review. He explicitly stated that the production of
mental health records for in camera review does not mean that those records
will automatically be disclosed to defendant following such review.
The State and the New Jersey Crime Victims’ Law Center (NJCVLC),
on behalf of Kim, filed motions for reconsideration. The trial judge denied the
motions and stated in part:
I still find we have far more than just bald assertions
substantiating or meeting the prongs under Chambers.
There’s certainly substantial particularized need for
access to the records because . . . they certainly relate
and connect the mental illness of the victim and her
ability -- or inability to perceive, recall, or recount the
events of the alleged assault perpetrated on her or . . . a
proclivity to imagine or fabricate them. So -- and the
burden is by a preponderance of the evidence and I’m
basing my decision, at least for the in camera review,
on a totality of what’s before this Court. And certainly,
that prong of Chambers has been shown.
It’s not just simply because there is a diagnosis of the
alleged victim of autism, bipolar I disorder, posttraumatic stress disorder, anxiety, and a variety of
medications that she’s prescribed, as well as the history
both preceding and subsequent to the alleged sexual
assault. So, certainly, that prong of Chambers was met.
11
Certainly, the records are relevant and material to the
alleged victim’s ability to perceive, recall, or recount
the alleged assault or . . . proclivity to imagine or
fabricate it. Again, it’s a totality of what’s before the
Court. These are more than mere bald assertions, given
the history of mental illness . . . which is undisputed by
the State, as well as the investigation conducted by the
defendant. And it’s not lost on me the argument from
the State that certain witnesses may have a bias or a
reason to lie or fabricate here. But that goes both ways.
It’s one or the other purposes of conducting an in
camera review. It certainly might be a preview of both
parties’ cases should the matter go to trial. But the
records are certainly relevant and material. And
certainly, the information in these records is not
available through less intrusive means.
So, for all the reasons that the Court stated in its initial
decision -- initial lengthy oral decision, I am denying
the motion for reconsideration by the State, as well as
denying the motion independently filed on behalf of
[Kim].
[(emphases added).]
The trial judge emphasized that his decision addressed only the first
Chambers stage:
I just want to make it clear that just because . . . I’m
addressing the threshold issues of the prongs of
Chambers, it’s not any indication as to whether or not I
believe or I found that there is any actual evidence of
this. You know, the question is, was that -- was that
threshold met under Chambers for the release of the
records, at least for an in camera review at this point.
12
Ultimately, whether or not they’re going to be released
to counsel, that’s a separate issue.
The Appellate Division granted the State and Kim’s motions for leave to
appeal. The appellate court determined that defendant failed to meet the
heightened discovery standard we established in Chambers. It concluded that
the trial judge erred by failing to address issues of veracity, reliability, and
bias raised by the individual interviews, and therefore abused his discretion by
ordering an in camera inspection. Accordingly, the Appellate Division
reversed the orders permitting the limited in camera review of Kim’s preincident mental health records from her two most recent hospitalizations.
We granted defendant’s motion for leave to appeal. 261 N.J. 568
(2025). We also granted NJCVLC’s motion to file an intervenor brief on
behalf of Kim, as well as motions on behalf of the Attorney General, the
American Civil Liberties Union (ACLU), and the Association of Criminal
Defense Lawyers of New Jersey (ACDL) to appear as amici curiae.
II.
Defendant argues that the trial judge did not abuse his discretion by
ordering the limited and narrow in camera inspection of Kim’s pre-incident
mental health records. As to the connection between Kim’s mental illnesses
and her ability to “perceive, recall, or recount the events of the incident” or
“imagine or fabricate them,” defendant explains that he relies on more than
13
Kim’s mental illnesses and prescriptions for psychotropic medications.
Specifically, defendant relies on: the fact that weeks before the incident, Kim
received mental health treatment at Virtua Memorial Hospital but left against
clinical advice; Ivan’s statement that he did not believe Kim took her
medication; Tamara, Scott, Peggy, and Ivan’s statements that Kim had a
history of making false statements, including false rape accusations; and
medical articles that addressed a link between Kim’s mental illnesses, bipolar
disorder and PTSD, and testimonial incapacities, specifically false memories
and an inability to accurately recall or recount events. Altogether, defendant
contends that those pieces of evidence satisfy the preliminary showing
required to grant an in camera review of the records.
The State recognizes a defendant’s right to a meaningful defense and to
secure, where appropriate, an in camera inspection of a victim’s mental health
records. But it asserts that a motion seeking such an inspection requires
affidavits, certifications, or testimony. The State maintains that defendant
failed to meet the standard we articulated in Chambers. The NJCVLC, on
behalf of Kim, and the Attorney General join the State’s arguments. The
NJCVLC stresses that because defendant failed to establish the requirements
of the preliminary Chambers step, the trial judge’s decision was an
unwarranted intrusion into Kim’s right of privacy.
14
The ACLU argues that the trial judge complied with Chambers and did
not abuse his discretion by preliminarily ordering an in camera inspection. It
contends that the trial judge made specific findings of fact and rational
inferences based on the totality of the record before him and that the Appellate
Division improperly substituted its own factual weighing for that of the trial
judge. The ACLU points to generally accepted reference sources that connect
Kim’s diagnoses and medications with how experiences are processed,
remembered, or recounted. 6 And it contends Kim exhibited disordered
behaviors consistent with the cognitive impairments associated with her mental
illnesses and medications. Thus, the ACLU emphasizes that defendant
demonstrated some evidential showing that connects the alleged mental illness
to the victim’s inability to perceive, recall, or recount the events of the alleged
assault, or a proclivity to imagine or fabricate them.
The ACDL argues that defendant produced more than sufficient
evidence under the Chambers standard for a preliminary in camera inspection
of pre-incident records. It contends that the Appellate Division overlooked the
6
The ACLU cites: Am. Psych. Ass’n, Diagnostic & Stat. Manual of Mental Disorders (DSM-5-TR) (5th ed. 2022); Kaplan & Sadock, Comprehensive Textbook of Psychiatry (11th ed. 2024); and Physicians’ Desk Reference (71st ed. 2017). The PDR is no longer issued as a physical book and has transitioned entirely to a digital format known as the Prescribers’ Digital Reference (PDR.net), which is continuously updated online.
15
peer-reviewed articles that connect Kim’s diagnoses with tendencies toward
misperceiving events or falsifying facts; erred by focusing on credibility
issues, even though the State did not dispute Kim’s medical conditions and
medication use; and discounted the statements by Ivan, Tamara, Scott, and
Peggy, which were consistent with each other and with Kim’s own testimony.
III.
An appellate court “generally defer[s] to a trial court’s disposition of
discovery matters unless the court has abused its discretion or its determination
is based on a mistaken understanding of the applicable law.” State v. Knight,
256 N.J. 404, 415 (2024) (quoting State v. Brown, 236 N.J. 497, 521 (2019)).
“An abuse of discretion occurs by making decisions ‘without a rational
explanation, [that] inexplicably depart[] from established policies, or [that]
rest[] on an impermissible basis.’” Chambers, 252 N.J. at 594-95 (first and
third alterations in original) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J.
561, 571 (2002)). Reviewing courts, however, “need not defer . . . to a
discovery order that is well ‘wide of the mark,’ or ‘based on a mistaken
understanding of the applicable law.’” Knight, 256 N.J. at 416 (quoting State
v. Hernandez, 225 N.J. 451, 461 (2016)). A trial court’s legal conclusions are
reviewed de novo. State v. Bullock, 253 N.J. 512, 515 (2023).
16
IV.
“[A] heightened discovery standard governs a defendant’s motion for
pre-incident mental health records from a sexual assault victim.” Chambers,
252 N.J. at 571. The standard is rigorous due to the need to balance a criminal
defendant’s constitutional right to “a meaningful opportunity to present a
complete a defense,” State v. Budis, 125 N.J. 519, 531 (1991) (quoting Crane
v. Kentucky, 476 U.S. 683, 690 (1986)), against the significant privacy
interests of sexual assault victims, State v. D.R.H., 127 N.J. 249, 259 (1992).
In Chambers, we held that “a defendant is entitled to present a
meaningful defense by making a good-faith request for pre-incident mental
health records of a sexual assault victim.” 252 N.J. at 589. To obtain such
records, the defendant must satisfy a two-stage standard: first, the trial judge
must make a preliminary gatekeeping determination as to whether there is
sufficient justification to warrant an in camera review; and second, if the
defendant meets “that heavy preliminary burden,” the judge will conduct a
substantive in camera inspection to determine whether production to the
defendant is warranted. Id. at 571.
“If a defendant files a motion seeking access to pre-incident mental
health records, a victim is entitled to notice by the county prosecutor’s office
and must have an opportunity to be heard, with or without independent
17
counsel.” Id. at 589. Here, Kim did not initially receive notice of the motion.
The record is unclear as to precisely when Kim was eventually notified; we
discern that it was at some point before she joined the State’s motion for
reconsideration. We take this opportunity to remind the State of its duty to
provide timely notice to a victim whenever a defendant files a Chambers
motion, and to remind trial judges of their obligation to ensure -- at the onset
of the hearing -- that the victim has received both notice and an opportunity to
oppose the motion, as required by the Crime Victims’ Bill of Rights, N.J.S.A.
52:4B-36(r).
The first Chambers stage requires a defendant to show, by a
preponderance of the evidence, that: (1) the defendant has “a substantial,
particularized need” for the records; (2) “the information sought [therein] is
relevant and material;” and (3) “the information is not available through less
intrusive means.” Id. at 590. If a defendant satisfies that three-part discovery
standard, then the defendant is entitled to have the trial judge conduct an in
camera inspection. Id. at 591. During the second stage, the judge must
determine whether to “pierce” the applicable mental health privilege, redact
the records, and make them available under a protective order. Id. at 592.
At issue here is the first stage: whether defendant is entitled to have the
trial judge conduct an in camera inspection of the records. We now review
18
whether the record supports the trial judge’s finding that defendant established
the three prongs of Chambers’ first stage by a preponderance of the evidence.
A.
As we held in Chambers,
[t]o establish a substantial, particularized need for
access to mental health records, there must be some
evidential showing that connects the alleged mental
illness to the victim’s inability to perceive, recall, or
recount the events of the alleged assault, or a proclivity
to imagine or fabricate them -- the sole permissible
purpose for which access may be granted.
[Id. at 590.]
Some persuasive evidential showing must exist to establish substantial need.
Ibid. “[G]eneralized statement[s],” such as allegations the victim is “crazy,”
are “insufficient to establish the need for the records.” Ibid. Moreover, access
is not justified if it was sought “in the hopes of impeaching a victim with
inconsistent statements.” Ibid.
In some cases, an evidential showing “may . . . include opinions from
mental health experts.” Ibid. But such experts are not required. We note that
affidavits, certifications, and testimony are also not required to meet the
threshold of “some persuasive evidential showing to establish substantial
need.” Ibid. In addition, a defendant is not required to show exactly what the
medical records will contain in order to satisfy the threshold for a judge to
19
conduct an in camera review. Because a defendant will not have seen the
records, such a showing would be impossible.
Here, defendant’s proffered evidence includes: (1) Kim’s statement to
the sexual assault nurse examiner; (2) Kim’s statement to police; (3) messages
between Kim and Ivan; (4) interviews with Kim’s friends and family members;
and (5) medical literature discussing the connection between Kim’s mental
illnesses and false memories or a proclivity to fabricate.
We review defendant’s proffered evidence in turn.
1.
Kim reported to the sexual assault nurse examiner that she has received
diagnoses of bipolar I, autism, PTSD, and anxiety. The parties do not dispute
those diagnoses. At the time of the alleged sexual assault, Kim had active
prescriptions for various psychotropic medications, including Seroquel,
lithium, trazadone, Vistaril, and Lamictal. Seroquel is an antipsychotic, and
the fact that a physician prescribed it to Kim may indicate that Kim has
experienced issues with perception and psychosis. 7
Kim also reported to the sexual assault nurse examiner a detailed
description and recollection of the alleged assault. Regarding ejaculation, Kim
7
Physicians’ Desk Reference, 1028-30 (71st ed. 2017) (explaining that Seroquel is an “atypical antipsychotic,” and can be used to treat schizophrenia, bipolar I disorder, and major depressive disorder).
20
stated she was unsure if ejaculation had occurred, which contradicts her earlier
statement to Ivan that defendant had ejaculated onto her.
2.
In her sworn statement to police, Kim described the alleged assault in
detail. When asked if defendant had ejaculated, she responded that she did not
know and “wouldn’t have known what to look for,” also contradicting her
previous statement to Ivan. Kim additionally told detectives that she made
allegations of rape “on countless occasions,” and that her father always
believed her.
In her conversation with law enforcement, Kim repeatedly described
herself as someone who was in foster care her whole life. Specifically, Kim
explained that she was in foster care until she aged out of the system when she
turned eighteen. Kim, however, was adopted at age four, and aside from her
stays at psychiatric facilities, lived with her adoptive mother and father until
she was eighteen.
3.
In her messages with Ivan, Kim stated that her father would not believe
her about the alleged assault, contradicting her statement to the police that her
father always believed her. We emphasize that Kim’s credibility is not part of
the analysis under Chambers and is ultimately a question for a jury. Moreover,
21
her statements that her claims may not be believed does not reflect on their
ultimate veracity -- we are cognizant that sexual assault victims may be
hesitant to report assaults due to concerns about being believed. Kim’s
statement that her father would not believe her may be considered only insofar
as it contradicts a subsequent statement and may, when reviewed with other
evidence, support that Kim’s mental illnesses may impair her ability to
perceive, recall, or recount events.
Kim also told Ivan that defendant had ejaculated onto her. This
contradicts the statements she made to the sexual assault nurse examiner and
the police. We recognize that victims of sexual assault and other violent
crimes often struggle to recall details of the incident. Some victims may
remember certain aspects with remarkable clarity, while others may remember
the assault in fragments or may forget significant portions altogether. The
presence of conflicting statements may reflect the trauma and emotional
distress experienced by the victim, rather than intentional fabrication or
deception. Such inconsistencies, standing alone, do not prove a substantial
need, but they may be considered in conjunction with other evidence to
evaluate whether defendant has demonstrated a substantial, particularized need
for the records.
22
4.
Tamara, Scott, Ivan, and Peggy informed investigators that Kim had
been admitted to several psychiatric hospitals. A few weeks before the
incident, Kim had been receiving psychiatric treatment at Virtua Memorial
Hospital. She left that hospital against clinical advice, and it is unclear
whether Kim was medication-compliant at the time of the alleged assault.
According to Tamara and Scott, Kim boasted about making false rape
accusations against men she knows or has dated. When Scott asked Kim why
she would do that, Kim replied, “[T]hat’s how I am.” In addition, Ivan, Kim’s
former boyfriend and then-best friend, described her as someone who “tends to
lie a lot.” Kim’s adoptive mother similarly admitted that “it is hard to believe
what [Kim] says sometimes.” And Tamara explained that Kim fails to
appreciate the consequences of lying on account of her mental illnesses.
The interviews of Kim’s family and friends are all consistent in their
descriptions of Kim, her mental illnesses, and her history of treatment. The
interviews are also consistent with Kim’s own sworn statement that she had
made prior allegations of rape on “countless occasions.” The Appellate
Division’s concern that the interviews raised issues of hearsay, veracity,
reliability, and bias is well-founded, but misplaced in this context. The trial
judge correctly recognized that the interviews presented such issues, but also
23
that they should be considered in totality with the other evidence, that their
admissibility at trial is a separate issue from the Chambers analysis of when a
trial judge may grant an in camera inspection of records, and that credibility is
ultimately a question for a jury. We are persuaded that, when viewed
alongside the other record evidence, the trial judge did not abuse his discretion
in finding that the interviews provided more than “bald assertions” that Kim
has a history of making false representations, which may be connected to her
mental illnesses.
5.
The medical literature cited by defendant indicates that the mental
conditions with which Kim has been diagnosed can produce the types of
testimonial inconsistencies Kim has demonstrated. Defendant acknowledges
that Kim’s “inconsistent statements may not be the product of intentional
fabrication” because “individuals with PTSD and bipolar disorder can
experience false or disturbed memories.” The peer-reviewed articles
defendant submitted support the conclusion that Kim’s specific diagnoses may
influence how she processes, remembers, and recounts experiences.
For example, the peer-reviewed article, What Drives False Memories in
Psychopathology? A Case for Associative Activation, outlined how “PTSD, a
history of trauma, and depression are strongly linked to false memory
24
vulnerability.” Henry Otgaar et al., What Drives False Memories in
Psychopathology? A Case for Associative Activation, 5 Clinical Pysch. Sci.
1048, 1049 (2017). Accordingly, the study cautioned that sexual assault
victims’ “testimony can be plagued by memory aberrations, ones that could
end up in false accusations and wrongful convictions.” Ibid. This
vulnerability is heightened when individuals with those conditions are
presented with emotional material (e.g., trauma stimuli) that goes to the heart
of their psychopathology. Ibid. The article specifically noted that “depressed
individuals are particularly prone to the formation of negatively valenced or
depression-related false memories.” Id. at 1053.
The literature also indicates that individuals who are diagnosed with
bipolar disorder in addition to PTSD may experience exacerbated symptoms.
Andrea Pozza et al., Post-Traumatic Stress Disorder Secondary to Manic
Episodes with Hypersexuality in Bipolar Disorder: A Case Study of Forensic
Psychotherapy, 17 Clinical Neuropsychiatry 181 (2020). The report details
how bipolar disorder is a chronic condition, for which drug treatment is
fundamental. Id. at 184. But, according to that report, reduced compliance
with drug therapy is commonly observed in patients with bipolar disorder. Id.
at 186. The report also describes how hypersexuality is a symptom of the
25
manic phase of bipolar disorder and that behaviors during hypersexual
episodes may result in PTSD. Id. at 184, 186.
The State submitted two peer-reviewed articles addressing autism and
the ability to lie. The first article explained that children with autism spectrum
disorder (ASD) “seem less able to deceive.” Pier Jaarsma et al., Living the
Categorical Imperative: Autistic Perspectives on Lying and Truth Telling
Between Kant and Care Ethics, 15 Med. Health Care & Phil. 271, 272 (2011).
But the second article, published the same year, found that “higher-functioning
children with ASD are able to tell lies of their own volition.” Annie S. Li et
al., Exploring the Ability to Deceive in Children with Autism Spectrum
Disorders, 41 J. Autism Dev. Disorder 185, 192 (2011). Children with this
condition, the article noted, struggle to “cover[] up their lie by maintaining
consistency between their initial lie and subsequent statements.” Id. at 186.
Additionally, those articles relate to only one of Kim’s diagnoses. And they
do not indicate that children with ASD cannot lie -- rather, the articles report
that children with ASD have difficulty maintaining their lies. This distinction
is significant because the issue here is not merely Kim’s ability to fabricate,
but Kim’s ability to recollect past events. Accordingly, although the State’s
articles provide some insight into the relationship between ASD and deception,
26
they do not undermine the broader connection defendant established between
Kim’s diagnoses and her testimonial inconsistencies.
Overall, the peer-reviewed articles defendant submitted demonstrate a
connection between Kim’s diagnoses -- bipolar I, PTSD, autism, and anxiety --and her ability to perceive, recall, or recount the events of the alleged assault
as well as a proclivity to imagine or fabricate. The articles highlight the
complex interplay between the conditions with which Kim has been diagnosed
and her capacity to accurately recall and recount past events.
* * *
Reviewing the record as a whole, we discern no abuse of discretion with
the trial judge’s determination that defendant established, by a preponderance
of the evidence, a connection between Kim’s pre-incident mental health
conditions and her inability to perceive, recall, or recount the events of the
alleged assault, or a proclivity to imagine or fabricate the alleged assault.
Reviewed in its entirety, defendant’s proffered evidence shows: Kim
has specific mental illness diagnoses; Kim received treatment for her mental
illnesses at several psychiatric facilities; Kim checked out of the most recent
facility against medical advice; Kim is prescribed medication for her mental
illnesses; Kim may not have been medication-compliant at the time of the
alleged assault; Kim’s friends and family describe her as having “a tendency to
27
lie” and as someone who, due to her mental illnesses, may not appreciate the
consequences of lying; Kim demonstrated an inability to accurately recount
past events; Kim provided conflicting accounts regarding details of the alleged
assault; and Kim’s mental illnesses can produce the types of testimonial
incapacities she has demonstrated.
As defense counsel acknowledged at oral argument, if each piece of
evidence was viewed on its own, it would not constitute a substantial,
particularized need. But we do not look at each piece in a vacuum -- we
analyze how each piece of evidence relates to another to determine whether a
defendant has shown, by a preponderance of the evidence, Chambers’ requisite
connection between the victim’s mental illness and the purported testimonial
incapacity.
Here, collectively, the evidential record amounts to more than bald
assertions that Kim’s mental illnesses may affect her ability to perceive, recall,
or recollect the assault, or may indicate a proclivity to fabricate it.
Accordingly, defendant established a substantial and particularized need for
Kim’s pre-incident mental health records and thereby satisfied the first prong
of the Chambers analysis.
28
B.
The second prong requires defendant to prove that the information
sought is both relevant and material. Chambers, 252 N.J. at 590. “To be
relevant, the alleged mental illness of a sexual assault victim must have a
‘tendency in reason to prove or disprove’ an ability to perceive, recall, or
recount the alleged assault, or a proclivity to imagine or fabricate it.” Id. at
591.
The question of materiality turns on “the relation between the
propositions that the evidence is offered to prove and the issues in the case.”
State v. Williams, 240 N.J. 225, 236 (2019) (quoting 1 McCormick on
Evidence § 185, at 994 (7th ed. 2013)). “A material fact is one which is really
in issue in the case.” Chambers, 252 N.J. at 591 (quoting State v. Buckley,
216 N.J. 249, 261 (2013)). “Just as a victim’s general ability to perceive,
recall, or recount an alleged assault may be relevant evidence of a victim’s
alleged mental illness, it may be material to the limited extent that it calls into
question the accuracy of a victim’s version of events or, more fundamentally,
whether the events that a victim alleges even took place.” Id. at 591.
The central question in this case is whether defendant reasonably
believed that Kim freely and affirmatively consented to engage in sexual
29
activity with him. The credibility of Kim’s versions of events is therefore
critical to resolving that issue. 8
In ordering an in camera inspection, the trial judge reasonably relied on
interviews from individuals who had intimate knowledge of, and experiences
with, Kim. From that evidence, the trial judge drew a rational inference that
Kim’s pre-incident mental conditions could affect her ability to perceive,
recall, or recount, as well as her tendency to imagine or fabricate the alleged
assault. Because the trial judge’s credibility determinations were based upon
8
We disagree with the dissent’s conclusion that defendant’s statements “negate the very basis upon which he claims those records are relevant and material, and that he has a substantial and particularized need for them.” See post at ___ (slip op. at 7). The Chambers factors are meant to be a threshold showing, not an invitation for resolution of ultimate guilt. Requiring a judge, during discovery, to resolve factual disputes and determine whose account is more credible -- rather than simply assessing whether the defendant has met the three Chambers factors -- would devolve into a he-said/she-said dispute --the precise type of evil Chambers was intended to guard against. The ultimate determination of credibility belongs to the factfinder, after discovery is complete and the record is fully developed.
Even considering defendant’s statements to the police, Kim’s preincident mental conditions are relevant and material to her ability to perceive, recall, or recount, as well as her tendency to imagine or fabricate the alleged assault. In applying the Chambers standard, the focus must remain on whether the defendant has provided specific, credible evidence linking the victim’s mental health to her ability to testify reliably, rather than on the defendant’s account of the events. Such statements -- particularly those relating to consent -- are considered only in assessing whether the defendant has made a good faith showing under Chambers.
30
credible record evidence, the judge did not abuse his discretion in concluding
that defendant showed that the information sought is relevant and material. 9
The Appellate Division erred by substituting its own assessments for
those of the trial judge and by disturbing the trial judge’s factual
determinations as to the interviewees. Although the Appellate Division
correctly noted that the interview summaries might present future credibility
and evidential challenges, under N.J.R.E. 101(a)(3)(E), a trial judge may relax
the rules of evidence at proceedings to determine the admissibility of evidence.
Accordingly, because the record shows that information sought from the
records may indicate that Kim has a proclivity to imagine or fabricate the
alleged assault, the information is relevant and material to defendant’s defense.
C.
Finally, under the third prong, defendant must demonstrate by a
preponderance of the evidence that the information sought is not available
through less intrusive means. Chambers, 252 N.J. at 591. Here, in contrast to
Chambers, where we suggested that the defense could “probe more about
whether family members and friends have additional knowledge of the
9
We stress that relevance and materiality in this context are not determinative as to whether that same evidence meets N.J.R.E. 403 and is thus admissible at trial. See Chambers, 252 N.J. at 593 n.5. Simply put, a judge’s decision that a defendant is entitled to an in camera review of the records does not amount to a definitive evaluation of the evidence’s probative value.
31
victim’s alleged mental illness,” defense counsel has already interviewed those
who have information related to Kim’s mental conditions. Id. at 596. Even
with that information, defendant has demonstrated gaps in the evidence as to
Kim’s mental illnesses and treatment. Particularly, there is no documentation
available to defendant regarding Kim’s actual diagnoses or the types of
medication doctors prescribed to Kim beyond her self-reported statements,
whether Kim took those medications, her stays at the various psychiatric
facilities, and whether Kim exhibited a propensity to fabricate or an inability
to recall or remember events. Because the only way for defendant to reliably
obtain such information is through Kim’s pre-incident mental health records,
defendant has sufficiently established that the information sought is not
available by less intrusive means. The scope of records to be produced for the
trial judge’s in camera review is limited and narrow -- only records from
Kim’s two most recent hospitalizations at Virtua Memorial Hospital and
Bergen Regional Medical Center will be available for inspection.
* * *
On this record, the trial judge did not err in finding that defendant
demonstrated a substantial, particularized need for Kim’s pre-incident
treatment records, that the records are relevant and material, and that the
32
information could not be secured from a less intrusive source. Accordingly,
the trial judge did not abuse his discretion in granting an in camera review.
V.
We reiterate that this case concerns only the initial stage of the
Chambers analysis. The Chambers framework is intentionally structured to
impose increasing burdens on defendants as they progress from stage one to
stage two, thereby aligning the degree of intrusion with the protection due to
the alleged victim’s privacy rights. See id. at 593. The first stage --determining whether a defendant is entitled to an in camera review of a
victim’s medical records -- is thus a distinct analytical framework from
whether the records must ultimately be produced to the defendant after the
second Chambers stage.
At the second stage, for a defendant to receive the records, the trial
judge must first conduct an in camera review to address whether the mental
health privilege should be pierced, applying the standard set forth in N.J.R.E.
534. Thereafter, if “the judge determines that the records, as redacted, are
discoverable . . . then, solely for discovery purposes, the records should be
produced under a protective order to be approved by the judge, with an
opportunity for interlocutory appellate review before disclosure occurs.” Ibid.
33
Here, at this first stage, neither the issue of whether to “pierce” the
mental health privilege nor issues related to admissibility at trial are before us.
The trial judge correctly noted the different Chambers stages, emphasized that
the question before him was whether defendant satisfied the first Chambers
stage, and only found that defendant had met the preliminary threshold. He
expressly acknowledged that this preliminary determination does not mean that
defendant will automatically be entitled to the mental health records.
Accordingly, having determined that defendant satisfied the preliminary
showing, the trial judge may now engage in an in camera review of the
records. If the judge determines that the records contain relevant material and
that the mental health privilege should be pierced, Kim will be afforded an
opportunity to challenge those findings.
VI.
Successfully establishing, by a preponderance of the evidence, that an in
camera review of an alleged sexual assault victim’s pre-incident mental health
records is warranted is not an easy task. As we held in Chambers, “[t]he
greater the intrusion into one’s privacy, the higher the burden a defendant must
show for the information sought.” Id. at 587. Under Chambers, requests for
an alleged sexual assault victim’s pre-incident mental health records “should
remain rare.” Id. at 571. This is one such rare case. On this record, we
34
discern no abuse of discretion in the trial judge’s determination that defendant
made a sufficient preliminary showing to obtain an in camera inspection.
The judgment of the Appellate Division is reversed and the trial judge’s
order granting a limited and narrow in camera review of the records is
reinstated.
JUSTICES PATTERSON, WAINER APTER, NORIEGA, and
HOFFMAN join in JUSTICE FASCIALE’s opinion. JUSTICE PIERRELOUIS filed a dissent, in which CHIEF JUSTICE RABNER joins.
35
State of New Jersey,
Plaintiff-Respondent,
v.
R.F.P.,
Defendant-Appellant.
K.S.,
Intervenor-Respondent.
JUSTICE PIERRE-LOUIS, dissenting.
In this case, defendant gave a statement to police that, during the alleged
sexual assault of his niece, Kim, she sent him “mixed signal[s]” and said
“stop” at least once; and when asked by an officer, “You knew it was not
consensual, right?” defendant responded, “Yes.” Defendant also corroborated
many of the details Kim reported. Yet, defendant now moves for access to
Kim’s mental health records based on a “good faith” belief that her mental
health conditions potentially affect Kim’s ability to accurately perceive events
and truthfully relay information. And the majority states that under the facts
of this case, defendant’s own “statements are not relevant to [the Court’s]
analysis [under State v. Chambers, 252 N.J. 561 (2023),] in determining
1
whether defendant is entitled to a limited and narrow in camera review of the
[victim’s medical] records.” Ante at ___ n. 2 (slip op. at 5 n.2).
In my view, the fact that defendant stated in his own words that Kim did
not imagine or falsify what transpired during the alleged sexual assault
undermines the relevance and materiality of Kim’s confidential records
regarding whether her mental health conditions affect her perception and
accuracy. And failure to consider that statement undermines the delicate
balancing of defendants’ and victims’ rights this Court established in
Chambers. Because I believe the totality of the information -- including any
admissible statements by the defendant -- must be considered in conducting a
Chambers analysis, I respectfully dissent.
I.
Defendant stands accused of sexually assaulting Kim, his
developmentally disabled 1 18-year-old niece. 2 After Kim accused defendant of
1
Kim self-reported being autistic and her adoptive mother confirmed that Kim had many “learning disabilities and challenges.” In describing his niece, defendant stated that she is “hyper activ[e]” and likes to wrestle with people. He noted, “[y]ou know how autistic kids are when you play with them” in reference to his niece “get[ting] happy when you play around with her.” 2
Defendant has also been charged with obstruction of the administration of justice, hindering, and fabricating physical evidence for allegedly fabricating apology messages from Kim. Defendant provided his attorney with three emails purportedly from Kim to defendant in which Kim supposedly
apologized to defendant for lying and stated that she wanted to drop the
2
sexual assault, family and friends alike advised law enforcement that Kim
suffers from mental health conditions and is prone to lying, specifically about
being sexually assaulted. 3 Kim self-reported that she has autism and suffers
from bipolar I disorder and anxiety, as well as other physical ailments like
asthma and seizures.
Defendant moved for an in camera review of Kim’s mental health
records pursuant to Chambers to determine whether those records shed light on
her capacity “to accurately perceive events and truthfully relate information,”
notwithstanding defendant’s own statements that corroborate much of Kim’s
allegations regarding the alleged assault. The majority finds that defendant
has made a sufficient showing under Chambers to get an in camera review of
Kim’s mental health records and that his statement to police is not relevant to
the analysis in this case. Ante at ___, ___ n.2 (slip op. at 3, 5 n.2). I disagree.
charges against him. According to the State, after receiving the emails from defense counsel with a request to dismiss the indictment, the State’s investigation revealed that the IP address from which the emails were sent matched defendant’s IP address and originated from an account opened on the date the first email was sent and closed on the date the last email was sent. This led the State to seek and obtain a superseding indictment against defendant for obstruction, hindering, and fabrication of evidence. 3
One of those family members was Kim’s aunt, who also lived at the same residence where the alleged sexual assault took place. After Kim reported the sexual assault, her aunt allegedly physically assaulted her and was charged with simple assault.
3
Pursuant to this Court’s opinion in Chambers, a defendant seeking preincident mental health records of an alleged sexual assault victim must “make
three showings: (1) that there is a substantial, particularized need for such
access; (2) that the information sought is relevant and material; and (3) that the
information is not available through less intrusive means.” 252 N.J. at 590. If
a defendant satisfies all three prongs, they are entitled to have a judge conduct
an in camera inspection of the alleged victim’s mental health records as the
first step in a process that might later result in all or a portion of those records
being released to the defendant. Id. at 591-92.
The majority states that “the weight of the prosecution’s evidence,
including defendant’s own statements, is for the jury to resolve. . . . Under the
totality of the facts of this case, . . . his statements are not relevant to our
analysis in determining whether defendant is entitled to a limited and narrow
in camera review of the records.” Ante at ___ n.2 (slip op. at 5 n.2). I believe
defendant’s statement should potentially be considered. In sexual assault
cases, where the most common defenses are that the victim is lying and that
the sex was consensual, a defendant’s admissible statements must play a role
in the Chambers analysis because ultimately, after in camera review, the court
will consider whether to pierce the mental health provider-patient privilege.
4
While it is, of course, true that the ultimate question of whether the State
has met its burden of proving defendant is guilty beyond a reasonable doubt
rests with the jury, the weight of the evidence is certainly a factor that can be
considered by a trial court, for limited purposes, during the preliminary stages
of a prosecution. One example is during a trial court’s consideration of
pretrial detention. The Criminal Justice Reform Act articulates that one of the
factors trial courts “may take into account” in pretrial detention hearings,
along with the nature and circumstances of the offense and the history and
characteristics of the defendant, is “[t]he weight of the evidence against the
eligible defendant, except that the court may consider the admissibility of any
evidence sought to be excluded.” N.J.S.A. 2A:162-20(b). In other words,
during a pretrial detention hearing -- one of the most preliminary procedures
that follow an arrest -- trial courts are statutorily allowed to take into account
the weight of the evidence against a defendant and, in doing so, may consider
the admissibility of any evidence the defendant seeks to keep out.
I think similar consideration should be given to a defendant’s statement
or any other evidence in a sexual assault case that would negate the relevance,
materiality, or substantial need for the mental health records of an alleged
victim under Chambers. Defendant was indicted over five years ago on
February 21, 2021, followed by a superseding indictment over three years ago
5
on March 15, 2023. Defendant moved to compel discovery of Kim’s mental
health records in August 2023, eight months after this Court’s decision in
Chambers. As of this writing, defendant has yet to move for suppression of his
statement. He might still seek to do so. And just like trial courts are allowed
to consider the weight of the evidence against a defendant seeking their liberty
at the pretrial detention stage, this Court should allow for the consideration of
such evidence, and its potential exclusion, in a Chambers analysis.
It is and will quite often be the case that the assessment of relevance and
materiality in a criminal case will turn on the totality of information and
evidence before the court. I do not think our courts should be directed to
ignore evidence that in some instances might negate any relevance or
materiality that a victim’s mental health records might have under a Chambers
analysis. Instead of turning a blind eye to such evidence, this Court should
enhance the balanced protections we articulated in Chambers and formulate a
mechanism pursuant to which evidence bearing on the court’s assessment of
the Chambers factors can be considered. 4
4
Such a procedure could involve the trial court, after receiving a motion for a sexual assault victim’s mental health records and opposition from the State based on certain evidence, inquiring whether defendant will seek to exclude the evidence upon which the State bases its opposition. If not, and the evidence comes in, the trial court should consider that evidence in its Chambers analysis. If the defense will move to suppress certain evidence the State deems relevant to the Chambers analysis, the trial court can stay its
6
If the goal of Chambers was to balance both victims’ and defendants’
rights, we need to weigh all the information before the court in assessing
whether defendant meets all three Chambers factors. Such balancing cannot be
achieved if courts disregard material evidence that might make the victim’s
mental health records inconsequential. At trial, even if defendant’s statement
is admitted, the jury absolutely gets to decide whether he is guilty beyond a
reasonable doubt. 5 But at this preliminary stage, on this important issue of
protecting a victim’s rights and potentially taking the extraordinary step of
piercing the mental health privilege, we should allow for consideration of the
totality of evidence before the court.
Here, if defendant’s statement is admissible, his own words negate the
very basis upon which he claims those records are relevant and material, and
that he has a substantial and particularized need for them.
decision on the Chambers motion until after its decision on the motion to suppress has been made. Such a procedure would not be overbearing considering, as we stated in Chambers, our expectation that these motions for sexual assault victims’ mental health records will be rare.
5
I agree with the majority that “[t]he Chambers factors are meant to be a threshold showing, not an invitation for resolution of ultimate guilt.” Ante at ___ n.8 (slip op. at 29 n.8). As noted above, I acknowledge that the ultimate question of guilt is decided by the jury. Again, I believe the totality of the evidence, including defendant’s admissible statements, should be considered for the limited purpose of assessing whether he has made a threshold showing for an in camera review of the victim’s mental health records under Chambers.
7
The majority lists the many items of evidence defendant presented in
support of his motion for Kim’s mental health records including her statement
to the sexual assault nurse examiner (SANE), 6 her self-reported mental
6
Defendant argues, and the majority opinion states, that Kim contradicted herself in telling the SANE nurse that she was not sure whether defendant ejaculated because she previously told her ex-boyfriend Ivan in Facebook messages that he did ejaculate on her. See ante at ___ (slip op. at 20-21). The State, however, disagrees with defendant’s characterization of Kim’s messages with Ivan. In those messages, the following exchange occurred when Kim told Ivan that her uncle sexually assaulted her:
Ivan: He raped someone?
If he did and u want to proof it find out who he did it to
Kim: He did it to me and told me that I can’t tell anyone
Ivan: WTF
Kim: I don’t know what to do
Ivan: Were u that horny? Or was he?
Kim: My dad won’t believe me
Ivan: Sigh. . .
Kim: He came on me
The State argues that Kim’s message, “He came on me,” appears to be in response to Ivan’s questions, “Were u that horny? Or was he?,” and Kim possibly meant to type “He came onto me.” The State argues that this reading of the messages make sense in context and comports with Ivan’s statement to police that Kim did not provide him with any additional details about the sexual assault. Regardless, defendant himself confirmed during his statement that he ejaculated, first stating he did so inside the victim, then later stating “mostly on a tissue, but some went in her.”
8
illnesses, statements from friends and family members about her mental
illnesses and proclivity to fabricate, and medical literature purportedly
connecting Kim’s mental illnesses with false memories or an inclination to lie.
Ante at ___ (slip op. at 20). The amount of evidence proffered by defendant is
surely more than that offered by the defendant in Chambers, where the
defendant simply offered that the alleged victim “went crazy” before. 7 252
N.J. at 575.
Although I agree that defendant has put forth a lot of evidence in support
of his motion, I disagree on the import of this volume of evidence. Our
Chambers standard is not a numbers game and was never intended to be so.
Assessing whether a defendant gets an in camera review is not a matter of
counting up how many witnesses, or statements, or articles show that the
alleged victim might have the inclination to lie as a result of his or her mental
illness. Chambers articulated three specific factors that must be met,
regardless of how many witnesses a defendant lines up.
In prongs one and two in particular, defendant must show that he has a
substantial, particularized need for access to the records and that the mental
7
It bears noting that even in Chambers, the victim recorded a phone call with the defendant in which defendant apologized and threatened to kill himself over the alleged sexual assault, arguably admitting to committing the act. 252 N.J. at 573-74.
9
health records are relevant and material. See id. at 590. In my view,
defendant fails both of those prongs.
I begin with prong two, a showing of relevance and materiality. In his
supplemental brief, defendant clarified that he “moved for in camera review on
a good faith belief that Kim’s account of the alleged assault is not credible
because her mental illness affects her ability to accurately perceive events and
truthfully relate information.” (emphasis added). I agree with amicus
Attorney General’s argument that the materiality of Kim’s mental health
records should be considered based on the totality of evidence before the court,
including defendant’s own statement. Defendant claims to need access to
Kim’s mental health records based on a good faith belief that her mental
illness affects her ability to accurately perceive events and relate information,
but defendant’s own statement to police belies that purported good faith belief
because defendant corroborated the large majority of information Kim relayed
to police about the alleged sexual assault, including her statement that she did
not consent.
In response to questions from police, Kim described the alleged sexual
assault in painstaking detail. She told investigators that the alleged sexual
assault occurred in the bedroom her father shared with defendant. Defendant
confirmed this location. Kim also told investigators that she went into the
10
room to look for her cat. After initially claiming he “had no clue” why Kim
entered his bedroom, defendant later admitted that Kim went into the room to
look for her cat. Kim stated that defendant kissed her forehead, then her lips,
then her breasts, where he then began sucking on her breasts, and also touched
her vagina. Defendant stated that he kissed her forehead, sucked and bit her
nipples, and touched her vagina. Kim further claimed that defendant
performed oral sex on her; defendant confirmed that he did so. Kim also gave
additional details like the fact that defendant did not pull his pants all the way
down when he penetrated her, and defendant confirmed that his shorts were
not down and that he pulled his penis out through the zipper area. Kim also
told police that after the alleged assault, defendant advised her, “[D]on’t tell
your dad. He won’t believe you anyway,” and defendant confirmed he told
her, “[D]on’t tell your dad.”
Regarding the issue of affirmative and freely given consent, Kim told
investigators that she tried sliding off the bed at one point, but defendant
stopped performing oral sex on her and moved her back onto the bed.
Defendant confirmed that Kim made some type of movement “[o]ne or two
times” to get away. And although defendant initially stated that Kim “never
said no,” “never said stop,” and “wasn’t forced,” he later admitted to police
that she said “stop” at least once and possibly more times. Defendant also
11
stated that “she was the one who . . . sent mixed wires . . . . [Y]ou’re a guy
you know how [unintelligible] . . . when they send mixed signals.” 8
In light of defendant’s own words, which corroborated many of Kim’s
allegations, I think it would be difficult to find, if defendant’s statement is
admissible, that defendant has a substantial and particularized need for Kim’s
mental health records and that the mental health records are relevant and
material due to defendant’s “good faith belief that Kim’s account of the
alleged assault is not credible because her mental illness affects her ability to
accurately perceive events and truthfully relate information.” Defendant,
through his statement, has already confirmed that Kim had the ability to
perceive the events and accurately relate the information regarding the alleged
sexual assault. Even if Kim has lied every day of her life about everything and
anything, it is of no consequence because defendant has stated in his own
words that she did not lie this time.
Defendant’s statements, if admissible, corroborate the majority of Kim’s
version of the incident and disclaim defendant’s “good faith” need for her
mental health records. This makes the records irrelevant and immaterial,
8
Under New Jersey’s sexual assault statute, “[a]ny act of sexual penetration engaged in by [a] defendant without the affirmative and freely-given permission of the victim to the specific act of penetration constitutes the offense of sexual assault.” State in Int. of M.T.S., 129 N.J. 422, 444 (1992); N.J.S.A. 2C:14-1(c), -2.
12
which would fail prong two of the Chambers standard. Because the evidence
would be immaterial and irrelevant, defendant would also fail prong one
because he would have no substantial need for information that is irrelevant
and immaterial to the case. If defendant’s statement is deemed admissible, his
pursuit of Kim’s mental health records, in my view, would amount to simply
“[s]eeking [the] records in the hopes of impeaching [the] victim,” which we
stated in Chambers “will never justify access.” 252 N.J. at 590.
II.
Over three decades ago, this Court established affirmative and freely
given consent as the standard in sexual assault cases. M.T.S., 129 N.J. at 444.
In that important decision, the Court “conducted an extensive examination of
the history of rape laws throughout the country, particularly the stigma that has
historically been attached to alleged victims.” C.R. v. M.T., 248 N.J. 428, 442
(2021). Indeed, “[c]ourts and commentators historically distrusted the
testimony of victims, ‘assuming that women lie about their lack of consent for
various reasons: to blackmail men, to explain the discovery of a consensual
affair, or because of psychological illness.’” M.T.S., 129 N.J. at 433
(emphasis added) (quoting Cynthia Ann Wicktom, Note, Focusing on the
Offender’s Forceful Conduct: A Proposal for the Redefinition of Rape Laws,
56 Geo. Wash. L. Rev. 399, 403 (1988)).
13
In order to be faithful to the careful balance Chambers struck between
victims’ and defendants’ rights, courts must be able to consider all potentially
admissible evidence like a defendant’s own statement. If not, finding that a
defendant meets the Chambers standard because a victim has mental illnesses
and those illnesses can potentially affect a person’s ability to accurately
perceive events and truthfully relay information, without even considering
evidence that the victim in the specific case seems to have no trouble
accurately perceiving events, would continue the historical distrust of victims
with psychological illnesses that this Court cautioned against in M.T.S.
I agree with Kim’s counsel that if an in camera review is allowed in this
case, motions for a victim’s mental health records will not be “rare” as we
presumed in Chambers. Such motions would be commonplace. And victims,
who are already hesitant to report sexual assaults, will be even more reluctant
to come forward knowing their mental health records might have to be
produced on account of their diagnosed mental illness. See Rachael GoodmanWilliams et al., Reasons for Not Reporting Among Sexual Assault Survivors
Who Seek Medical Forensic Exams: A Qualitative Analysis, 39 J. of
Interpersonal Violence 1905, 1907 (2024) (“[S]urvivors often do not report
their assaults because they do not want others to know about the assault, want
to handle it themselves, fear retaliation, fear being blamed or disbelieved by
14
police, lawyers, or others involved in the criminal legal system, do not know if
the incident was serious enough to report, or blame themselves for the
assault.”) (emphasis added).
For all those reasons, I respectfully dissent.
15