Justice Timpone continued: Relevant evidence may “be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) . . . needless presentation of cumulative evidence.” N.J.R.E. 403. Evidence should be barred under N.J.R.E. 403 if the probative value of the evidence is so significantly outweighed by its inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the issues. The party urging the exclusion of evidence under N.J.R.E. 403 must convince the court that the N.J.R.E. 403 considerations should control. Here, the nature and number of photographs have the capacity to demonstrate the depth and length of the relationship, and the photos were admissible under N.J.R.E. 403 because their probative value outweighed any prejudicial effect.
Moreover, defendant did not object to any of the photographs and, on cross-examination, briefly questioned H.B. further about the photographs. Importantly, defendant did not merely fail to object to the photographs but instead strategically relied on the photographs as part of his defense. Although it was not error to admit the photos, even if it were error, a party may not strategically withhold its objection to risky or unsavory evidence at trial only to raise the issue on appeal when the tactic does not pan out. The Appellate Division erred by finding plain error in the admission of the photographs under N.J.R.E. 403.
N.J.R.E. 404(b) provides that “evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith.” Significantly, however, evidence that is intrinsic to the charged crime is exempt from the strictures of Rule 404(b) — it does not constitute other-acts evidence and is subject only to the limits of Rule 403. Here, the State used the photos to demonstrate that the consensual relationship admitted to by both parties logically must have preceded H.B.’s majority. The photographs were intrinsic, not evidence of “other crimes, wrongs, or acts,” so the Appellate Division was incorrect to find they should have been excluded.
The Fifth Amendment provides that “no person . . . shall be compelled in any criminal case to be a witness against himself.” The privilege against self-incrimination is present in New Jersey common law and statutory law. The practical effect of the privilege to remain silent is that when a defendant expressly refuses to answer, no inference can be drawn against him. Importantly, pre-arrest silence that is not at or near the time of arrest, when there is no government compulsion and the objective circumstances demonstrate that a reasonable person in a defendant’s position would have acted differently, can be used to impeach that defendant’s credibility. Here, H.B. spoke with defendant as a private citizen, and defendant was unaware of any police presence. The use of a recording device to allow law enforcement to listen in on a conversation does not show government compulsion. The State’s comments on defendant’s silence were appropriate and did not infringe on his right to remain silent or privilege against self-incrimination. The Appellate Division’s guidance on the prosecutor’s comments on silence should not be adopted. The decision below is reversed and remanded to the Appellate Division.
The State’s strategy in using the photographs also played on the dynamic involved with jury deliberations. Logic dictates that many people take sexual photos with others without being involved in a long-term relationship. However, this is a logic that very few jurors, especially females, would be willing to admit to a group of strangers.