Thus, evidence that a defendant is not at the scene of the
crime requires compliance with the notice of alibi rule.
II. AUTHENTICATION AND BEST EVIDENCE
(See also, CHAIN OF POSSESSION; SCIENTIFIC
AND TECHNICAL EVIDENCE, infra)
N.J.R.E. 901 states that the requirement of
authentication or identification as a condition of
admissibility is satisfied by evidence sufficient to support
a finding that the matter is what its proponent claims.
N.J.R.E. 902 provides a list of categories of evidence
which authenticate themselves. There need not be
absolute certainty or conclusive proof; only a prima facie
showing is required to get the evidence before the jury.
State v. Mays, 321 N.J. Super. 619, 628 (App. Div.), certif.
denied, 162 N.J. 132 (1999). Authentication may be by
direct or circumstantial evidence. Id.; State v. Bassano, 67
N.J. Super. 526, 532 (1961).
In ruling on the admissibility of photographs, the
trial court must determine whether they accurately
depict the subject at a time relevant to the issues involved
in the litigation. State v. Wilson, 135 N.J. 4, 15 (1994).
The same is true of a videotape or film; it must accurately
reproduce the phenomena actually perceived by the
witness. Id. at 15-16. Photographs may be
authenticated without producing the photographer as a
witness. It is sufficient if a witness testifies from personal
knowledge that the photographs accurately depict the
subject at the relevant time. State v. Kennedy, 135 N.J.
Super. 513, 525 (App. Div. 1975).
In State v. Moore, 158 N.J. Super. 68 (App. Div.
1978), the defendant was charged with fraudulently
obtained unemployment compensation. The State
proffered evidence in the form of an investigative report
which contained excerpts of the defendant’s payroll
records as copied by the investigator from the originals.
The Appellate Division held that this evidence should
have been excluded. The authentication requirement of
former Evid. R. 67 (now N.J.R.E. 901) could be satisfied
by hearsay proofs, but the State failed to establish under
Evid. R. 70 (now N.J.R.E. 1002) that the original records
were unavailable and, if they were, that they constituted
the best available secondary evidence of the employment
records. See also State v. Sheppard, 197 N.J. Super. 411,
438 (Law Div. 1984) (hearsay evidence admissible for
court to determine admissibility of videotaped testimony
of child abuse victim); Gunter v. Fischer Scientific
American, 193 N.J. Super. 688 (App. Div. 1984)
(affidavit or certification allowed to establish foundation
for admissibility of business records); D’Arc v. D’Arc, 175
N.J. Super. 598, 601-02 (App. Div. 1980) (defendant’s
hearsay testimony regarding the existence of tape could
be considered in preliminary proceeding determining
the tape’s admissibility).Authentication may be stipulated at trial. State v.
Thomas, 132 N.J. 247, 257 (1993). Thomas involves a
common issue, the authentication of a school zone map
for a prosecution of a drug offense committed within
1,000 feet of a school. The preferred practice is to
produce the adopting resolution or ordinance even if
there is a stipulation. Id.; State v. Collins, 262 N.J. Super.
230, 240 (1993).N.J.R.E. 1002 through 1008 replace prior Evid. R.
70, the “best evidence rule.” Generally, the original
writing or photograph is required, N.J.R.E. 1002, except
as provided in the rules or by statute. However, a
duplicate as defined by N.J.R.E. 1001(d) is admissible to
the same extent as an original unless a genuine question
of the authenticity of the original is raised or it would be
unfair under the circumstances.III. CHAIN OF CUSTODY
In order to authenticate demonstrative evidence, and
tests based on such evidence, it is necessary to establish
the chain of possession of the evidence. There are two
bases for the rule. The first is the general principle under
N.J.R.E. 403 that all evidence must have sufficient
probative force when balanced against counterfactors to
justify its admission. The second basis for the chain of
possession rule is related to the first and involves the
tremendous influence which demonstrative evidence
exerts on the human mind. This influence arises from the
natural mental tendency of a person to connect physical
objects in his view with a version of past events. State v.
Brown, 99 N.J. Super. 22, 27 (App. Div.), certif. denied,
51 N.J. 468 (1968).In State v. Brown, supra, the Appellate Division held
that determinations of the sufficiency of a chain of
possession are highly discretionary decisions by the trial
judge and will not be overturned absent a clearly
mistaken exercise of discretion. Accord, State v. DiCarlo,
67 N.J. 321, 329 (1975); see also State v. Lozada, 257 N.J.
Super. 260, 276 (App. Div.), certif. denied, 130 N.J. 595
(1992); State v. Zarinsky, 143 N.J. Super. 35, 58 (App.
Div. 1976), aff’d 75 N.J. 101 (1977); State v. Long, 137
N.J. Super. 124, 134 (App. Div. 1975); State v. Rajnai,
132 N.J. Super. 530, 536-537 (App. Div. 1975); State v.