Few judges relish getting assigned a child pornography case. If there is a conviction, fashioning a sentence and dealing with legal issues like what amount if any restitution should be ordered is a challenge. But before you get to that stage there is the issue of pre-trial discovery. As reported by the New Jersey Law Journal, the New Jersey Supreme Court has an important new ruling on discovery:

New Jersey’s high court has made it possible for defense lawyers to obtain for review the evidence against clients charged with child pornography-related offenses.

The unanimous court ruled on Thursday, in State v. Scoles, A-41-11, that lawyers can access the material in their offices provided they agree to certain strictures and conditions.

Noting an increase in child pornography prosecutions and that judges have been fashioning their own rules for pretrial discovery, the court said it wanted to promote consistency and a more uniform approach across the state.

The justices rejected the federal approach, in which evidence of child pornography is kept under the control of the government or the court.

The court followed the approach upheld in the case of Neil Cohen, a Democratic Assemblyman from Montclair charged in 2008 with possession of images of child pornography in his legislative office. The appellate ruling in that case, State v. Cohen, A-3682-08, was ordered published on Thursday.

The justices said that a court-issued protective order designed to secure computer images of alleged child pornography from intentional and unintentional dissemination should closely track Cohen, in which Mercer County Superior Court Judge Gerald Council ordered that prosecutors produce copies of all computer images and data confiscated, subject to certain conditions to prevent their dissemination.

The court said protective orders should provide that:

• The images may not be copied, reproduced, distributed, disseminated, electronically stored and/or electronically uploaded or downloaded, or used for any purpose outside the case.

• The material must be viewed on a dedicated computer, not connected to the internet, a network or a printer, which must be locked and secured when not in use.

• Transfer of the material from the state to the attorney, from the attorney to an expert, and from the attorney back to the state must be hand-to-hand.

• Anyone viewing the material on behalf of the defense should be furnished with a copy of the order and will be subject to its terms.

• Agreements between defense counsel and their experts should include a provision certifying that the expert acknowledges the order’s terms.

• The defendant may not view the materials outside the presence of defense counsel.

• At the conclusion of the case, steps must be taken to ensure that all of the material is completely and irretrievably deleted from the computer.