The Use of Photos and the Defendant’s Silence (Part 2)

The court continued: Before trial, the prosecution, defense counsel, and the court collaborated on a questionnaire for potential jurors, which included a question about the photographs. The judge then asked if there were any objections. Neither party objected, and both sides agreed that the photos were taken after H.B. turned eighteen.  At trial, defense counsel urged the jury to view the photos as exhibiting the actions of two consenting adults. He attempted to undercut H.B.’s testimony, saying defendant had been “ambushed about a past that never happened.” The State argued that it is not credible that H.B. would have consented to pose for such a broad array of photos in so new of a relationship. Instead, according to the State, the photos were evidence of a long sexual relationship that predated her eighteenth birthday. During summation before the jury, the prosecutor highlighted H.B.’s accusation that defendant had raped her when she was fourteen, noting that defendant did not respond to the accusation.

Defendant appealed, challenging the admission of the photographs and the prosecutor’s references to his silence during summation. After reversing as to one count of official misconduct that it found beyond the statute of limitations, the Appellate Division reversed defendant’s remaining convictions and remanded for a new trial. The panel found that the court should have excluded the photos as cumulative and unduly prejudicial under N.J.R.E. 403, and as other-crime evidence or bad acts under N.J.R.E. 404(b). The panel also offered guidance for retrial, demonstrating support for defendant’s argument that the State improperly commented on his silence during the recorded conversation with H.B. The State moved for reconsideration, which was denied. The State filed a petition for certification, which the Court granted.  232 N.J. 153 (2018). Defendant cross-petitioned, which the Court granted, limited to whether it was plain error for the trial court to allow the State to introduce the photographs and whether the State committed reversible error by commenting on defendant’s silence. 233 N.J. 295 (2018).

The State’s position with regard to the relevance of the photographs seems speculative at best. They were likely attempting to prejudice the jury by eliciting a natural reaction of disgust upon seeing an eighteen-year-old female involved in sexual relations with a man in his mid-forties.