NJ Court Reverses Conviction Due to Improper Video Testimony
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark
COCOUNSEL
Identify and outline the video evidence issues and the prosecutor’s improper comment why video evidence is important in New Jersey courts today.
Files: State v. Reciofigueroa
Result:
Video Evidence Issues
Facts:
On July 6, 2019, C.R. was shot and killed on a street in Elizabeth.1 A jury convicted defendant Anthony Reciofigueroa of the first-degree murder of C.R., N.J.S.A. 2C:11-3(a)(1), (2). The jury also convicted defendant of two related weapons offenses: second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1); and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1). Defendant was sentenced to an aggregate prison term of fifty-five years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
twice identified defendant as the person depicted in two of the video clips and essentially told the jury that defendant was the shooter. The detective also repeatedly described a car depicted in the videos as the car identified by witnesses who saw a car near the scene of the shooting., pg. 3, State v. Recorfiguera 3-11-25.pdf
Because the detective’s narrations of the video clips were inadmissible opinion testimony, we reverse defendant’s convictions. Those errors were compounded by the trial court’s failure to instruct the jury on the defense of third-party guilt. Defendant had presented evidence that another person may have been the shooter, but the trial court failed to charge the jury on that defense. Given our reversal of defendant’s convictions, we need not address the sentencing issues. Accordingly, we vacate the judgment of conviction and remand for a new trial., pg. 3, State v. Recorfiguera 3-11-25.pdf
- Improper Narration by Detective Rodriguez:
- Detective Rodriguez narrated video clips without firsthand knowledge of the events, which is not allowed. She identified the defendant in the videos and described the path of travel of the suspect, which she should not have done because she did not witness these events herself. This was considered improper opinion testimony.[1] [2] [3] [4]
- Violation of Rules:
- The detective’s testimony violated several rules, including not offering opinions about video content and not identifying individuals in the video if it is a disputed fact. Her testimony was based on inferences rather than direct observation, which is against the rules set by the New Jersey Supreme Court. [5] [6] [7]
- Impact on Fair Trial:
Prosecutor’s Improper Comment Issues
The document does not explicitly mention any improper comments made by the prosecutor. Therefore, there is no information provided on this issue.
Importance of Video Evidence in New Jersey Courts
Video evidence is crucial in New Jersey courts because it can provide visual proof of events, helping to establish facts in a case. However, it must be presented correctly, with witnesses only describing what they see without offering opinions or identifying individuals unless they have firsthand knowledge. This ensures that the evidence is reliable and does not unfairly influence the jury. [11] [12] [13]
[1] POINT I – DEFENDANT’S CONVICTIONS MUST BE REVERSED BECAUSE THE DETECTIVE IMPROPERLY NARRATED VIDEO FOOTAGE BY (A) DESCRIBING EVENTS ON VIDEO OF WHICH SHE HAD NO FIRSTHAND KNOWLEDGE, (B) DESCRIBING THE PATH OF TRAVEL TAKEN BY THE SUSPECT, AND (C) IDENTIFYING THE DEFENDANT ON VIDEO., pg. 11, State v. Recorfiguera 3-11-25.pdf
- The Detective Improperly Identified The Shooter And Described Him Exiting The Vehicle Of Interest., pg. 11, State v. Recorfiguera 3-11-25.pdf
[2] Applying these principles to defendant’s trial, Detective Rodriguez’s testimony violated Rules 701, 602, and 403 in two ways. First, she identified defendant as the person depicted in the video clips. Second, she gave extensive comments on the route defendant allegedly drove the Chevy Malibu to and from the scene of the shooting., pg. 14, State v. Recorfiguera 3-11-25.pdf
Detective Rodriguez did not observe the shooting, the shooter, or the Chevy Malibu. Accordingly, she lacked firsthand knowledge of the event, and her testimony was based primarily on her review of the video clips., pg. 14, State v. Recorfiguera 3-11-25.pdf
[3] During her testimony, Rodriguez twice identified defendant as the person depicted in certain video clips. The detective was shown a video clip from 705 Third Avenue, which had been marked as Exhibit S-12. She was then asked to explain the purpose of why that video clip was being displayed. Rodriguez responded: “The video was – – we conducted more video search and we noticed in this video that we were able to see the defendant and [his girlfriend].”, pg. 15, State v. Recorfiguera 3-11-25.pdf
Thereafter, the detective was asked to describe a video clip taken from East Jersey Street, which was marked as Exhibit S-38. The video clip was played for the jury, and the detective was asked to stop the video clip when there was something she wanted to point out to the jury. The detective then asked for the video clip to be stopped, and she was asked to explain to the jury “what exactly it was [she] [was] pointing to.” The detective pointed to the video clip, and she was asked, “[w]ho do you believe that to be?” The detective responded: “The defendant.”, pg. 15, State v. Recorfiguera 3-11-25.pdf
[4] The detective’s testimony identifying defendant was inadmissible opinion testimony without a factual basis. In that regard, the detective’s testimony violated the third and fourth principles set forth in Watson, 254 N.J. at 603-04. Whether the video clips depicted defendant was clearly a disputed issue at trial. Thus, that issue was for the jury to decide, and the detective’s testimony was highly prejudicial and without a factual basis. See N.J.R.E. 403. Moreover, the detective’s testimony was based on a series of inferences, including inferences apparently drawn from the detective’s investigation of the shooting and murder., pg. 16, State v. Recorfiguera 3-11-25.pdf
Furthermore, the detective’s testimony identifying defendant in two video clips clearly suggested to the jury that defendant was the person in the car in all the video clips presented through her testimony. In that regard, in describing other video clips to the jury, the detective offered her opinion concerning an individual who she described as “the shooter.”, pg. 16, State v. Recorfiguera 3-11-25.pdf
[5] The New Jersey Supreme Court has established rules governing what is and is not permissible when a witness narrates video evidence of events the witness did not observe in real time. See State v. Watson, 254 N.J. 558, 600-02 (2023); State v. Singh, 245 N.J. 1, 17-20 (2021). The Court has explained “that Rules 701, 602, and 403 in tandem provide the proper framework to assess video narration evidence by a witness who did not observe events in real time.” Watson, 254 N.J. at 600., pg. 13, State v. Recorfiguera 3-11-25.pdf
The Court then set forth four principles to guide the admission of narrative testimony concerning video evidence by an investigating law enforcement officer. In that regard, the Court explained:, pg. 13, State v. Recorfiguera 3-11-25.pdf
First, neither the rules of evidence nor the case law contemplates continuous commentary during a video by an investigator whose knowledge is based only on viewing the recording. To avoid running commentary, counsel must ask focused questions designed to elicit specific, helpful responses. “What do you see?” as an introductory question misses the mark., pg. 13, State v. Recorfiguera 3-11-25.pdf
Second, investigators can describe what appears on a recording but may not offer opinions about the content. In other words, they can present objective, factual comments, but not subjective interpretations. …, pg. 13, State v. Recorfiguera 3-11-25.pdf
A-0692-22, pg. 13, State v. Recorfiguera 3-11-25.pdf
Third, investigators may not offer their views on factual issues that are reasonably disputed. Those issues are for the jury to decide. So a witness cannot testify that a video shows a certain act when the opposing party reasonably contends that it does not. . . ., pg. 14, State v. Recorfiguera 3-11-25.pdf
Fourth, although lay witnesses generally may offer opinion testimony under Rule 701 based on inferences, investigators should not comment on what is depicted in a video based on inferences or deductions, including any drawn from other evidence., pg. 14, State v. Recorfiguera 3-11-25.pdf
[6] Applying these principles to defendant’s trial, Detective Rodriguez’s testimony violated Rules 701, 602, and 403 in two ways. First, she identified defendant as the person depicted in the video clips. Second, she gave extensive comments on the route defendant allegedly drove the Chevy Malibu to and from the scene of the shooting., pg. 14, State v. Recorfiguera 3-11-25.pdf
Detective Rodriguez did not observe the shooting, the shooter, or the Chevy Malibu. Accordingly, she lacked firsthand knowledge of the event, and her testimony was based primarily on her review of the video clips., pg. 14, State v. Recorfiguera 3-11-25.pdf
[7] The detective’s testimony identifying defendant was inadmissible opinion testimony without a factual basis. In that regard, the detective’s testimony violated the third and fourth principles set forth in Watson, 254 N.J. at 603-04. Whether the video clips depicted defendant was clearly a disputed issue at trial. Thus, that issue was for the jury to decide, and the detective’s testimony was highly prejudicial and without a factual basis. See N.J.R.E. 403. Moreover, the detective’s testimony was based on a series of inferences, including inferences apparently drawn from the detective’s investigation of the shooting and murder., pg. 16, State v. Recorfiguera 3-11-25.pdf
Furthermore, the detective’s testimony identifying defendant in two video clips clearly suggested to the jury that defendant was the person in the car in all the video clips presented through her testimony. In that regard, in describing other video clips to the jury, the detective offered her opinion concerning an individual who she described as “the shooter.”, pg. 16, State v. Recorfiguera 3-11-25.pdf
[8] Because the detective’s narrations of the video clips were inadmissible opinion testimony, we reverse defendant’s convictions. Those errors were compounded by the trial court’s failure to instruct the jury on the defense of third-party guilt. Defendant had presented evidence that another person may have been the shooter, but the trial court failed to charge the jury on that defense. Given our reversal of defendant’s convictions, we need not address the sentencing issues. Accordingly, we vacate the judgment of conviction and remand for a new trial., pg. 3, State v. Recorfiguera 3-11-25.pdf
[9] Having reviewed defendant’s arguments in light of the evidence at trial and the governing law, we hold that three of the arguments require a reversal of his convictions and a remand for a new trial. The first ground warranting a reversal was the improper narration of the video clips by a detective who had no firsthand knowledge of the shooting, but nonetheless identified defendant, the car allegedly driven by defendant, and the route defendant allegedly drove to and from the scene of the shooting., pg. 12, State v. Recorfiguera 3-11-25.pdf
The second ground warranting a reversal was the trial court’s failure to instruct the jury on the defense of third-party guilt. Defendant presented evidence that Dave could have been the person driving the Chevy Malibu and that he may have been the shooter. That evidence should have caused the trial court to charge the jury on the defense of third-party guilt., pg. 12, State v. Recorfiguera 3-11-25.pdf
While defense counsel failed to object to the testimony of the detective and failed to request a third-party guilt charge, the trial court’s failure to exclude the detective’s testimony and give the charge constituted plain errors. See R., pg. 12, State v. Recorfiguera 3-11-25.pdf
A-0692-22, pg. 12, State v. Recorfiguera 3-11-25.pdf
2:10-2. Moreover, in combination, we are convinced that the cumulative effects of those errors deprived defendant of a fair trial., pg. 13, State v. Recorfiguera 3-11-25.pdf
[10] As we have detailed, the narrations of the video clips by Detective Rodriguez, and particularly the identification of defendant during those narrations, constituted reversible error. The plain error concerning the trial court’s failure to give an instruction on the defense of third-party guilt is a closer call. See ibid., pg. 21, State v. Recorfiguera 3-11-25.pdf
Cumulatively, however, the two errors warrant a new trial. “[E]ven when an individual error or series of errors does not rise to reversible error, when considered in combination, their cumulative effect can cast sufficient doubt on a verdict to require reversal.” State v. Jenewicz, 193 N.J. 440, 473 (2008). Moreover, “the predicate for relief for cumulative error must be that the probable effect of the cumulative error was to render the underlying trial unfair.” State, pg. 21, State v. Recorfiguera 3-11-25.pdf
A-0692-22, pg. 21, State v. Recorfiguera 3-11-25.pdf
- Burney, 255 N.J. 1, 29 (2023) (quoting State v. Wakefield, 190 N.J. 397, 538 (2007)) (internal quotation marks omitted)., pg. 22, State v. Recorfiguera 3-11-25.pdf
As we have already pointed out, the identity of the shooter was the key issue at trial. The State’s evidence as to the shooter, however, was far from overwhelming. Consequently, the cumulative errors of admitting Detective Rodriguez’s video narrations and failing to give a jury instruction on the defense of third-party guilt demonstrate that defendant was not accorded a fair trial., pg. 22, State v. Recorfiguera 3-11-25.pdf
[11] The New Jersey Supreme Court has established rules governing what is and is not permissible when a witness narrates video evidence of events the witness did not observe in real time. See State v. Watson, 254 N.J. 558, 600-02 (2023); State v. Singh, 245 N.J. 1, 17-20 (2021). The Court has explained “that Rules 701, 602, and 403 in tandem provide the proper framework to assess video narration evidence by a witness who did not observe events in real time.” Watson, 254 N.J. at 600., pg. 13, State v. Recorfiguera 3-11-25.pdf
The Court then set forth four principles to guide the admission of narrative testimony concerning video evidence by an investigating law enforcement officer. In that regard, the Court explained:, pg. 13, State v. Recorfiguera 3-11-25.pdf
First, neither the rules of evidence nor the case law contemplates continuous commentary during a video by an investigator whose knowledge is based only on viewing the recording. To avoid running commentary, counsel must ask focused questions designed to elicit specific, helpful responses. “What do you see?” as an introductory question misses the mark., pg. 13, State v. Recorfiguera 3-11-25.pdf
Second, investigators can describe what appears on a recording but may not offer opinions about the content. In other words, they can present objective, factual comments, but not subjective interpretations. …, pg. 13, State v. Recorfiguera 3-11-25.pdf
A-0692-22, pg. 13, State v. Recorfiguera 3-11-25.pdf
Third, investigators may not offer their views on factual issues that are reasonably disputed. Those issues are for the jury to decide. So a witness cannot testify that a video shows a certain act when the opposing party reasonably contends that it does not. . . ., pg. 14, State v. Recorfiguera 3-11-25.pdf
Fourth, although lay witnesses generally may offer opinion testimony under Rule 701 based on inferences, investigators should not comment on what is depicted in a video based on inferences or deductions, including any drawn from other evidence., pg. 14, State v. Recorfiguera 3-11-25.pdf
[12] Applying these principles to defendant’s trial, Detective Rodriguez’s testimony violated Rules 701, 602, and 403 in two ways. First, she identified defendant as the person depicted in the video clips. Second, she gave extensive comments on the route defendant allegedly drove the Chevy Malibu to and from the scene of the shooting., pg. 14, State v. Recorfiguera 3-11-25.pdf
Detective Rodriguez did not observe the shooting, the shooter, or the Chevy Malibu. Accordingly, she lacked firsthand knowledge of the event, and her testimony was based primarily on her review of the video clips., pg. 14, State v. Recorfiguera 3-11-25.pdf
[13] The detective’s testimony identifying defendant was inadmissible opinion testimony without a factual basis. In that regard, the detective’s testimony violated the third and fourth principles set forth in Watson, 254 N.J. at 603-04. Whether the video clips depicted defendant was clearly a disputed issue at trial. Thus, that issue was for the jury to decide, and the detective’s testimony was highly prejudicial and without a factual basis. See N.J.R.E. 403. Moreover, the detective’s testimony was based on a series of inferences, including inferences apparently drawn from the detective’s investigation of the shooting and murder., pg. 16, State v. Recorfiguera 3-11-25.pdf
Furthermore, the detective’s testimony identifying defendant in two video clips clearly suggested to the jury that defendant was the person in the car in all the video clips presented through her testimony. In that regard, in describing other video clips to the jury, the detective offered her opinion concerning an individual who she described as “the shooter.”, pg. 16, State v. Recorfiguera 3-11-25.pdf
