The Use of Photos and the Defendant’s Silence (Part 3)

The New Jersey Supreme court held that the trial court did not err in the admission of the photographs, nor did the State commit reversible error when it commented on the defendant’s silence. A defendant who does not raise an issue before a trial court bears the burden of establishing that the trial court’s actions constituted plain error. Here, the admission of the photographs was raised for the first time on appeal by defendant. Therefore, the Court reverses only if any error was “clearly capable of producing an unjust result.”  R. 2:10-2. The same standard applies to review of the prosecutor’s remarks during summation, to which defense counsel did not object.

N.J.R.E. 401 defines “relevant evidence” as evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action. Under N.J.R.E. 402, “all relevant evidence is admissible” subject to exceptions provided for elsewhere in the rules. The parties agree that the photographs were taken after H.B. turned eighteen. The number of photographs — as well as the graphic nature of the sexual acts depicted weeks after H.B. turned eighteen — is relevant to establishing a pre-existing relationship between defendant and H.B. The photos are therefore intrinsic to the prosecution’s case. Defendant argues that the photographs are not relevant because his relationship with H.B. was legal, but H.B. testified, without any objection, that her relationship with defendant began well before her eighteenth birthday and continued afterward. Defendant concedes H.B.’s testimony about events occurring after her eighteenth birthday was relevant. The Court finds no compelling reason why the same logic would not apply to the photographs.

The Supreme Court would have likely reached a different conclusion if trial counsel had objected to the photographs and comment in summation. Without an objection, our case law says that it is inferred that the failure to object was a strategic decision. This is a legal fiction that exists in large part to control the number of convictions that are subject to reversal. The fiction contributes to the efficient disposition of cases, but does not contribute to the just disposition of cases.