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Generally, “the results of scientific tests are admissible at a criminal trial only when they are shown to have ‘sufficient scientific basis to produce uniform and reasonably reliable results and will contribute materially to the ascertainment of the truth.’” Romano v. Kimmelman, 96 N.J. 66, 80 (1984) (quoting State v. Hurd, 86 N.J. 525, 536 (1981) (quoting State v. Cary, 49 N.J. 343, 352 (1967))). In Romano, the Court required the State to show that the breathalyzer machine was properly calibrated in order for the results to be admissible at trial. Romano, supra, 96 N.J. at 66. In this regard, “[t]rial courts are expected to perform a gatekeeper role in determining whether there exists a reasonable need for an expert’s testimony, and what the parameters of that testimony may be.” State v. Nesbitt, 185 N.J. 504, 514 (2006).

“Global Positioning System technology is defined as ‘[a] system of satellites, computers, and receivers that is able to determine the latitude and longitude of a receiver on Earth by calculating the time difference for signals from different satellites to reach the receiver.’” State v. Harte, 395 N.J. Super. 162, 165 n. 1 (Law Div. 2006) (quoting The American Heritage Dictionary of the English Language (4th ed. 2000)).

Expert testimony is essential to determining the accuracy and trustworthiness, and therefore admissibility, of the particular GPS device used in a case.

A common reason for rejecting computerized evidence is lack of a sufficient foundation to show the accuracy and trustworthiness of the evidence. See 14 Am. Jur. 2d Proof of Facts § 17 (1977). Where a challenge is lodged, a court requires the party offering the computer information to provide a foundation therefor sufficient to warrant a finding that such information is trustworthy, and allows the opposing party the opportunity to inquire into the accuracy of the computer and input procedures used. United States v. De Georgia, 420 F.2d 889, 893 n. 11 (9th Cir. 1969). In reversing the conviction of a marijuana smuggler whose boat, used to import the contraband from the Mexican border to the United States, was equipped with a GPS device, the Ninth Circuit Court of Appeals in United States v. Bennett, 363 F.3d 947 (9th Cir.), cert. denied, 543 U.S. 950, 125 S. Ct. 363, 160 L. Ed. 2d 268 (2004), noted that in addition to failing to produce the GPS or its output for trial, the government did not establish that the defendant’s GPS information was necessarily accurate or that the GPS itself worked properly. Id. at 954 n. 7.

As noted by the Court of Appeals, “malfunctioning GPS devices are not unknown to this court.” Ibid. (citing United States v. McIver, 186 F.3d 1119, 1123 (9th Cir. 1999), cert. denied, 528 U.S. 1177, 120 S. Ct. 1210, 145 L. Ed. 2d 1111 (2000)).

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, property settlement agreements, premarital and prenuptial agreements, midmarriage and marital agreements.

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The Supreme Court has held that an expert may be required on cross-examination to disclose the underlying facts and data upon which the expert relied. State v. Pennington, 119 N.J. 547, 583 (1990); State v. Rose, 112 N.J. 454, 499-500 (1988); N.J.R.E. 705. This disclosure requirement extends to inadmissible evidence, including hearsay, upon which experts may rely if the evidence is “of a type reasonably relied upon by experts in a particular field in forming opinions upon the subject.” N.J.R.E. 703; State v. Spencer, 319 N.J. Super. 284, 299 (App. Div. 1999).

However, when the expert has not relied upon hearsay evidence in formulating an opinion, that evidence may not be utilized on cross-examination. Pennington, supra, 119 N.J. at 583.

To determine the existence of reliance, counsel can make inquiry of the expert. However, “in the face of a denial, [counsel] may not use the details of [the hearsay] as the basis of further cross-examination.” Ibid. Further, the mere fact that an expert has considered hearsay is insufficient to permit cross-examination when the expert has expressed his lack of reliance on that hearsay. Spencer, supra, 319 N.J. Super. at 300.

In circumstances in which an expert has substantively relied upon hearsay in formulating his opinion, the court has held that the “probative value of the [d]octor’s opinion will depend upon whether there is, from all the evidence in the case, independent proof of the statement made by the accused.” Vandeweaghe, supra, 351 N.J. Super. at 480-81; see also State v. Farthing, 331 N.J. Super. 58, 78 (App. Div.), certif. denied, 165 N.J. 530 (2000).

However, the court has also held that a

proponent should not elicit hearsay evidence that he or she is not prepared to prove substantively” and, if proof is lacking, the judge should consider excluding the evidence under N.J.R.E. 403 because, in the absence of substantive proof, its probative value is substantially diminished by the risk of undue prejudice given the constitutional implications. Once the jury has heard the hearsay, it is very difficult to unring the bell with a cautionary instruction that the weight of the expert’s opinion is dependent upon the facts upon which it is based.

[Vandeweaghe, supra, 351 N.J. Super. at 482.]

NOTE: My legal and mediation services are offered to Polish-speaking and other clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

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Also see:

• Rule 1:7-2
• Rule 2:10-2
• Rule 1:7-5
• N.J.R.E. 611
• State v. Medina, 147 N.J. 43 (1996)
• State v. Johnson, 90 N.J. Super. 105 (App. Div. 1965), aff’d, 46 N.J. 289 (1966)
• State v. Johnson, 193 N.J. 528 (2008)
• State v. Johnson, 168 N.J. 608 (2001)

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

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Rule 1:2-2, which generally requires a verbatim record of all proceedings, specifically requires that “[u]nless a transcript thereof is marked into evidence, a verbatim record shall also be made of the content of an audio or video tape played during the proceedings and the tape itself shall be marked into evidence as a court’s exhibit and retained by the court.”

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

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Discredited testimony is not considered a sufficient basis for drawing a contrary conclusion. Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 512 (1984) (citation omitted); see also Eckenrode v. Pa. R.R. Co., 164 F.2d 996, 999 n.8 (3d Cir. 1947) (“[A] belief that testimony is false will not support an affirmative finding that the reverse of that testimony is true.”).

NOTE: My legal and mediation services are offered to clients in Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

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In this case, Defendant appealed from a domestic violence final restraining order. In its opinion, affirming the final restraining order, the appellate court stated that because some of Defendant’s testimony was highly technical, the testimony was not considered by the court, because “it was not within the trial court’s common knowledge” and was unsupported by expert testimony.

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N.J.R.E. 702 states: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

CAUTION: when dealing with technical issues, present to the court testimony from an expert who can clarify the issues involved.

See related Blog Post in the NJ Family Legal Blog.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

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A photograph must be authenticated before it can be submitted as evidence at trial. N.J.R.E. 901 provides:

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims.

[The N.J. Rules of Evidence are available HERE]

The procedural hurdle of authenticating a photograph is not a high one. “Generally, to justify admissibility of a photograph, it must accurately represent the conditions existing at the time of the happening of the incident in question.” Saldana v. Michael Weinig, Inc., 337 N.J. Super. 35, 46 (App. Div. 2001) (citing N.J.R.E. 901; Garafola v. Rosecliff Realty Co., 24 N.J. Super. 28, 42 (App. Div. 1952)). Further, “[t]he authentication of a photograph requires verification by a qualified individual, one who has made personal observations, thereby establishing that the conditions reproduced existed at the time of the [incident].” Id. at 46-47.

“The admissibility of any relevant photograph rests on whether the photograph fairly and accurately depicts what it purports to represent, an evidentiary decision that properly lies in the trial court’s discretion.” Brenman, supra, 191 N.J. at 21. See also State v. Polito, 146 N.J. Super. 552, 558 (App. Div. 1977) (stating that “[b]efore ruling on the admissibility of photographs, it is incumbent upon the court to determine whether they accurately depict the subject at a time relevant to the issues involved in the litigation”), certif. denied, 76 N.J. 243 (1978).

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Be aware, however, that photographs may be fakes; i.e., they may not be showing the truth — see, e.g.: Faked Photographs: Look, and Then Look Again, By BILL MARSH, Published in The New York Times on August 22, 2009.

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For more information, see:

• Advanced Trial Handbook – Demonstrative Evidence, published on The Caught.net Website
• Authenticating Digital Photographs as Evidence: A Practice Approach Using JPEG Metadata, by Joe Kashi, published by the American Bar Association
• Case Blurb: [Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007)]; Authenticating digital photographs, published in the Post Process – Everything to do with E-discovery & ESI blog
• Photographs as Evidence, By Sumner Kenner, 60 Central Law Journal 406, May 26, 1905
• Evidence: practice under the rules By Christopher B. Mueller, Laird C. Kirkpatrick
• PREPARING AND USING DEMONSTRATIVE EVIDENCE, Presented by Andrew J. Rossetti, Esq.

See also my prior Post: Like any other evidence tendered at trial, photographs must be relevant; that is, they must have a tendency in reason to prove or disprove any fact of consequence to the determination of the action

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

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In this case, Plaintiff appealed the verdict rendered against her and in favor of the United States of America by the Magistrate Judge Patty Shwartz [United States District Court for the District of New Jersey; D.C. Civil No. 06-cv-02149] after a five-day bench trial, concluding that Plaintiff had failed to meet her burden of proof of malpractice under the Federal Tort Claims Act. The Magistrate Judge made Findings of Fact and Conclusions of Law in a 30-page opinion, and concluded that, based upon the evidence presented, Plaintiff had not proven that the doctor who delivered Plaintiff, was more likely than not the cause of injuries sustained during her delivery.

On appeal to the Third Circuit, Plaintiff’s principal contention was that the Magistrate Judge went beyond the record to conduct factual research that influenced her decision making and, therefore, reversal was required. Specifically, Plaintiff contended that “factual research was undertaken to search out extraneous cases involving brachial plexus injuries.” Plaintiff urged that “[f]ootnote 35 of the Magistrate’s Findings and Conclusions is the basis for the Magistrate’s ultimate conclusion that the plaintiff failed to meet her burden of proof.” Plaintiff contended that the Magistrate Judge’s conduct was improper.

In the footnote at issue, the Magistrate Judge noted that other courts, in cases not cited by the parties, have found, based on literature presented to them, that brachial plexus injury can occur spontaneously and as a result of causes other than doctor-applied traction.

The Third Circuit found that the footnote complained of was “informational” and was not the basis of the Magistrate Judge’s conclusion. The Third Circuit also concluded that the Magistrate Judge did not err in her Findings of Fact and Conclusions of Law, and that she did not improperly rely on “extraneous research” in reaching her decision.

In its Daily Briefing (8/19/09), the New Jersey Law Journal reports that the plaintiff, who is seeking en banc review and a new trial, asks: Was Shwartz’s inquiry akin to jurors making clandestine visits to an accident scene or doing Internet research in the middle of a trial?

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Discovery matters are ordinarily left to the trial court’s discretion. Connolly v. Burger King Corp., 306 N.J. Super. 344, 349 (App. Div. 1997).

R. 4:10-2(a) provides:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence . . . of any . . . electronically stored information . . . . It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to discovery of admissible evidence; nor is it ground for objection that the examining party has knowledge of the matters as to which discovery is sought.

The relevance standard does not refer only to matters which would necessarily be admissible into evidence, but includes information reasonably calculated to lead to admissible evidence respecting the cause of action or its defense. Pfenninger v. Hunterdon Cent. Reg’l High Sch., 167 N.J. 230, 237 (2001). Thus relevancy for purposes of R. 4:10-2(a) is congruent with relevancy pursuant to N.J.R.E. 401, namely, a tendency in reason to prove or disprove any fact of consequence to the determination of the action. Payton v. New Jersey Tpk. Auth., 148 N.J. 524, 535 (1997).

Consequently, whether the evidence would be admissible to impeach defendant’s credibility pursuant to N.J.R.E. 607, or is inadmissible under N.J.R.E. 404(b), is not relevant to the question of whether it was discoverable.

R. 4:10-2(a) expressly covers “electronically stored information.” In addition, an examination of computers could led to other admissible evidence.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

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A spoliation inference may be used where a litigant is found to have destroyed or concealed evidence during the underlying litigation. Rosenblit v. Zimmerman, 166 N.J. 391, 401 (2001). The inference is used as a method of “evening the playing field[.]” Ibid. “It essentially allows a jury . . . to presume that the evidence the spoliator destroyed or otherwise concealed would have been unfavorable to him or her.” Id. at 401-02.

In order for the spoliation inference to apply, four essential factors must be satisfied:

(1) the evidence in question must be within the party’s control;
(2) it must appear that there has been actual suppression or withholding of evidence;
(3) the evidence destroyed or withheld must be relevant; and
(4) it must have been reasonably foreseeable that the evidence would later be discoverable.

MOSAID Techs., Inc. v. Samsung Elecs. Co., 348 F. Supp.2d 332, 336 (D.N.J. 2004).

New Jersey courts recognize that the tort of fraudulent concealment applies to intentional spoliation of evidence. Rosenbilt, supra, 166 N.J. at 406-07. The elements of that tort are:

the defendant had a legal obligation to disclose evidence in connection with an existing or pending litigation; the evidence was material to the litigation; the plaintiff could not have reasonably obtained access to the evidence from another source; the defendant withheld, altered or destroyed the evidence with purpose to disrupt the litigation; and the plaintiff was damaged by having to rely on an evidential record that did not contain the evidence the defendant concealed.

Ibid.

Such a claim requires bifurcation because the fraudulent concealment remedy depends on the jury’s assessment of the underlying action. Id. at 407.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

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