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.