A recent New Jersey Supreme Court decision, State of New Jersey v. Guillermo Santamaria, tackled the interesting question of whether photographs of sex acts between the Defendant and his victim—although indisputably taken while the victim was over eighteen—could be admissible to help prove prior, unlawful sexual contact.
During the trial, defense counsel argued that the photos portrayed a legal, consensual sexual relationship, and even welcomed the jury’s inspection of them as such. The State, on the other hand, argued that it was not credible that the victim would have consented to pose for such a broad array of photos in so new of a relationship, and that the photos were, therefore, evidence of a long-term sexual relationship that substantially predated the alleged victim’s eighteenth birthday.
On appeal, the Appellate Division found the photographs to be of marginal probative value and relevance under Rule 401 because they were all taken after the alleged victim had turned eighteen. Moreover, the Appellate Division found the photos to be of minimal probative value, substantially outweighed by the risk of undue prejudice, and a needless presentation of cumulative inflammatory evidence. The Panel also determined the photos were too attenuated from the allegations of underage sex because they were taken “at least several weeks, if not years, after the alleged crimes occurred.” Accordingly, the photos were not “intrinsically relevant” because they did not prove that defendant had sex with the victim while she was underage, and should have been excluded from evidence under Rule 404(b) “because they were not admissible as intrinsic evidence.”
The Supreme Court of New Jersey reversed, finding the photos relevant—indeed, intrinsically relevant—and not unduly prejudicial. Of note, however, the Supreme Court was careful to make clear that it was evaluating the issue under the clear error standard as the photographs were never objected to at trial, notwithstanding the trial court’s explicit invitation to hold a Rule 104 hearing. The Court was especially careful to point out that “a party cannot 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.”
More specifically, the Supreme Court held that the sheer number of photographs—as well as their highly graphic nature and close proximity to the victim’s eighteenth birthday—was relevant to establishing a pre-existing sexual relationship, which in this case would mean an illicit, underage sexual relationship: “an eighteen-year-old in the first weeks of a relationship is not likely to consent to a sexual partner’s taking sixty-five nude and semi-nude photographs, particularly when fourteen of those photographs depict hardcore sexual acts.” As such, the photos were relevant, and moreover intrinsic to the prosecution’s case. The photographs served to demonstrate the control the Defendant had over the victim and suggested the Defendant groomed her over a years-long sexual relationship. As such, the photographs were deemed intrinsic evidence, not evidence of “other crimes, wrongs, or acts,” generally excluded under Rule 404(b). For substantially these same reasons, the Court further concluded the photographs admissible under Rule 403 as their probative value outweighed any prejudicial effect.
Of interest, the Supreme Court further opined that it was “markedly unfair” for the Appellate Division to have “judged the photos as excessive without having viewed them.”
This result should not be highly surprising. Although the photographs themselves exhibited nothing apparently unlawful, one inference that could be logically drawn from them was extremely relevant to the crime charged: the existence of an ongoing, unlawful underage sexual relationship. It is also not a surprising outcome given that defense counsel never objected, and indeed apparently welcomed, the admission of the photos at trial. Perhaps one takeaway for all defense counsel is to think twice when a trial judge affirmatively suggests that a Rule 104 hearing be held on a particular evidentiary matter.
Finally, on a more academic level, it is interesting that the Supreme Court felt that it even needed to reach the nebulous question of “extrinsic evidence” in any event. The only purpose of classifying these photos as such extrinsic evidence is to avoid Rule 404(b)’s prohibition on evidence of some other “crime, wrong or other act . . . to show that on a particular occasion the person acted in accordance with the character.” However, as the character here would be propensity for sex with underage girls, the photos would actually undermine any such character assertion, and would seem to fall outside of Rule 404(b)’s jurisdiction. Indeed, as the photos contain no instance of “uncharged misconduct,” State v. Rose, 206 N.J. 141, 180 (2011), it is unclear why this analysis was necessary. My personal opinion is that a more precise definition of “extrinsic evidence” should be exercised generally, and is necessary to clarify this area of law going forward.
The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.