XVII. PHOTOGRAPHIC EVIDENCE
The admission of explicit pictures, even of a deceased
victim, has traditionally been a matter within the
discretion of the trial court. State v. Marshall, 123 N.J.
1, 99 (1991); State v. Johnson, 120 N.J. 263, 297 (1990);
State v. Lamb, 71 N.J. 545, 551 (1976); State v.
Thompson, 59 N.J. 396, 420 (1971); State v. Gosser, 50
N.J. 438 (1967), cert. denied, 390 U.S. 1035 (1968).
Pictures of a murdered body are likely to cause some
emotional stirring in any case, but that of itself does not
render them incompetent. They become inadmissible
only when their probative value is so significantly
outweighed by their inherently inflammatory potential
as to have a probable capacity to divert the minds of the
jurors from a reasonable and fair evaluation of the basic
issue of guilt or innocence. [State v. Thompson, 59 N.J. at
421; see also State v. Sanchez, 224 N.J. Super. 231, 249
(App. Div.), certif. denied, 111 N.J. 653 (1988)].
In order to be admissible, photographs must be
“logically relevant” to an issue in the case. State v. Bey II,
112 N.J. 123, 182 (1988). The “admissibility of
photographs of the victim of a crime rests in the discretion
of the trial court, and the exercise of its discretion will not
be reversed in the absence of a palpable abuse thereof.”
State v. Thompson, 59 N.J. at 420; State v. Branch, 301
N.J. Super. 307 (App. Div. 1997), rev’d in part o.g., 155
N.J. 317 (1988). The test for the admissibility of
photographs of dead bodies was established in State v.
Smith, 32 N.J. 501 (1960), cert. denied, 364 U.S. 936
(1961), where the Supreme Court held that a picture
with “some probative value” though inflammatory could
be admitted at the trial court’s discretion unless its
“logical relevance” was “overwhelmed by the inherently
prejudicial nature of the photo.” Id. at 525. There can
be no reversal of a conviction unless the trial court’s
admission of such photographs is clearly shown to be a
“palpable abuse” of its discretion. State v. Lamb, 71 N.J.
at 551; State v. Thompson, 59 N.J. at 420; see also State v.
Grunow, 199 N.J. Super. 241, 253 (App. Div. 1985),
where the admission of a video tape and a mannequin
were upheld by the court. Nor does the fact that
photographic evidence is cumulative render photographs
inadmissible. State v. Thompson, 59 N.J. at 421; State v.
Micheliche, 220 N.J. Super. 532, 545 (App. Div.), certif.
denied, 109 N.J. 40 (1987).
Authentication of photographs as evidence does not
require the testimony of the photographer or developer of
the photographs. It is sufficient if a witness, who has
observed the scene, testifies that the photographs
accurately depict the subject as it appeared at a relevant
time. State v. Kennedy, 135 N.J. Super. 513, 525 (App.
Div. 1975).XVIII. PHYSICAL OR MENTAL EXAMINA-
TION (See also, SELF-INCRIMINATION, this
Digest)
N.J.R.E. 503(a) (N.J.S.A. 2A:84A-19) provides that
no person has the right to refuse to submit to an
examination for the purpose of discovering his physical or
mental condition. Identifying characteristics and the
physical or psychic condition of a person are non-
testimonial and beyond the privilege against self-
incrimination. Schmerber v. California, 384 U.S. 757
(1966). Since the refusal to take a test, such as a
breathalyzer test, is non-testimonial, it may be admitted
into evidence against the defendant. State v. Stever, 107
N.J. 543, 558 (1987); see also State v. Cary, 49 N.J. 343,
352 (1967).XIX. PLEA OF GUILTY
In State v. Boone, 66 N.J. 38, 45-50 (1974), the
Supreme Court held that a defendant’s withdrawn plea
of guilty could not be subsequently used for any purpose.
This rule is now contained in N.J.R.E. 410, which
provides:Except as otherwise provided in this rule, evidence of a
plea of guilty which was later withdrawn, of any
statement made in the course of that plea proceeding, and
of any statement made during plea negotiations when
either no guilty plea resulted or a guilty plea was later
withdrawn, is not admissible in any civil or criminal
proceeding against the person who made the plea or
statement or who was the subject of the plea negotiations.
However, such a statement is admissible (1) in any
proceeding in which another statement made in the
course of the same plea or plea discussions has been
introduced and the statement should in fairness be
considered contemporaneously with it, or (2) in a
criminal proceeding for perjury, false statement, or other
similar offense, if the statement was made by the
defendant under oath, on the record, and in the presence
of counsel.The rule essentially supersedes State v. Boyle, 198
N.J. Super. 64 (App. Div. 1984), which permitted the
use of a statement made during plea negotiations. See also
State v. Malik-Ismail, 292 N.J. Super. 590, 595 (App.
Div. 1996). A statement given the same day as a