Hennepin County District Court File No. 02067484
Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and
The Minnesota Rules of Criminal Procedure govern discovery in a criminal proceeding of a videotaped interview of an alleged child victim describing acts of sexual abuse.
The state may seek a protective order under Minn. R. Crim. P. 9.03, subd. 5, restricting distribution and use of a videotaped interview of an alleged child victim describing sexual abuse. Concern for a child's privacy interest is sufficient cause for issuance of a protective order without indicating an intent by those entitled to discovery to misuse the tape.
The opinion of the court was delivered by: Stoneburner, Judge
Affirmed in part, reversed in part, and remanded
The state appeals the district court's denial of its request for a protective order under the Minnesota Government Data Practices Act, restricting distribution and use of the videotaped statement of an alleged child victim describing respondent's acts of sexual abuse. Because the district court correctly held that the Rules of Criminal Procedure govern discovery of such a videotape in a criminal case, but erred by rejecting the privacy interests of the subject child as cause for the issuance of a protective order under the rules, we affirm in part and reverse in part.
After respondent's then five-year-old daughter claimed he had touched her numerous times in a sexual way, she participated in a videotaped interview at CornerHouse*fn1 in which she described how respondent sexually touched her. Respondent was charged with first- and second-degree criminal sexual conduct.
Respondent filed a written demand for discovery. All requested materials were produced, with the exception of the CornerHouse videotape. Prior to releasing the videotape, the state asked respondent's counsel to sign a stipulation and order providing that a copy of the videotape would be given to defense counsel solely for the purpose of preparing a defense in this case, restricting reproduction of the tape, prohibiting public displays or dissemination of the tape, limiting the people who could view the tape to the defense team, restricting transcripts of the tape to the people who were allowed to view the tape, and providing that upon final disposition of the case, the tape would be returned to the court.
Respondent's counsel declined to sign the stipulation and order, arguing that under Minn. R. Crim. P. 9.03, subd. 5, a protective order can only be issued if there is particularized evidence that someone entitled to discovery of the videotape intends to misuse the videotape. At a pretrial conference, respondent's counsel requested unrestricted access to the videotape. The district court ordered briefing on the legal issue of whether the court should issue a protective order.
The state does not dispute that respondent is entitled to discovery of the videotape but argued to the district court that Minn. Stat. § 13.03, subd. 6 (2002) (the Minnesota Data Practices Act), grants special protection to videotapes of child victims and requires, even in the context of discovery in a criminal matter, that the court balance the need for discovery against the privacy interests of the child, applying the specific factors set out in the act. Respondent argued that discovery in criminal matters is governed by the Minnesota Rules of Criminal Procedure and not the Data Practices Act. Respondent acknowledged the strong public policy favoring protection of the privacy interests of alleged child victims of sexual abuse, but argued that cause for a protective order under Minn. R. Crim. P. ...