May 16th, 2025

State v. Bolden

The Appellate Div. is a step below the Supreme Court of New Jersey and Bolden is an unpublished opinion. Prof. Colin Miller suggests this case is one of first impression. Point II of the opinion is

THE INAPPROPRIATE ADMISSION OF A NONAUTHENTICATED VIDEO, FOLLOWED BY THE INAPPROPRIATE TESTIMONY AND ARGUMENT ABOUT THAT VIDEO, NECESSITATES REVERSAL OF DEFENDANT'S CONVICTIONS.

A. The Video Was Not Authenticated And Therefore Was Inadmissible.

B. The Comments On The Video Were Inadmissible And Unduly Prejudicial.

C. Johnson's Testimony About The Video Was Inadmissible Hearsay And Speculation.

D. The State Misrepresented The Limited Evidence Presented About The Video In Closing and Engaged in Improper Speculation.

​E. Individually Or Cumulatively, The Video Evidence Errors Require Reversal Of [Defendant]'s Convictions. 

Similarly to what we see in a court-martial, the prosecution introduced the Appellant's recorded interrogation with the police. The defense objected to parts, and the judge allowed almost all the proffered information. He said he'd give a limited instruction about the parts objected to, but didn't give it. Point III of the opinion relates to

THE ADMISSION OF PORTIONS OF THE INTERROGATION IN WHICH OFFICERS OPINE ON DEFENDANT'S GUILT AND RELAY HEARSAY, AS WELL AS THE PORTION IN WHICH DEFENDANT INVOKED HIS RIGHT TO COUNSEL, DEPRIVED DEFENDANT OF A FAIR TRIAL.

A. Failure To Redact The Officers' Inappropriate Lay Opinions And Hearsay From The Interrogation Necessitates Reversal Of Defendant's Convictions.

B. The Failure To Redact Defendant's Invocation Of His Right To Counsel And The Misuse Of That Invocation In Closing Necessitates Reversal Of Defendant's Convictions. [(Not Raised Below).]

​C. The Failure To Properly Redact The Interrogation Footage Requires Reversal Of Defendant's Convictions. 

The relevant facts on Point III are

Defendant maintains the failure to redact the following categories of the detectives' commentary [in the recorded interrogation] requires reversal of his convictions: (1) stating with certainty that the car depicted in the surveillance video was defendant's vehicle; (2) expressing skepticism that defendant was truthful during the interview; (3) opining a jury would convict defendant based on his denial of guilt; and (4) reiterating hearsay that many people spoke with police about the fight video. Defendant claims the detectives' statements constituted inadmissible hearsay or lay opinion. For the first time on appeal, defendant further argues the failure to redact his invocation of the right to counsel and the prosecutor's comments on that right warrant reversal of his convictions. 
​. . . . 
Slip op. 19-22.

The nub of the issue is all about police interrogation techniques designed to get a confession.

• "the tenor of the detectives' questioning during the interrogation suggested their belief in his guilt and their disbelief in his rendition of the facts constituted lay opinion, which were barred during their trial testimony."
• "The detective's statements were particularly troublesome because they interpreted the images depicted in the video footage, indicating their belief that defendant's car was in the area of the fatal shooting – a disputed fact he never conceded."
  
• "The detectives questioned defendant for about two hours, repeatedly challenging his "story" and claiming it was "impossible" that the video surveillance footage did not depict his vehicle in view of its distinctive characteristics."
  
• "the detectives expressed doubt that a jury would acquit defendant and suggested he had an obligation to explain himself, impinging on his Fifth Amendment right to avoid self-incrimination. Given their status as law enforcement officers, the detectives' repeated commentary on defendant's "veracity [wa]s particularly prejudicial."
  

The Court opined that,

"Had the detectives made similar comments at trial, their testimony would have been excluded as improper lay opinion because those statements were "an expression of a belief in defendant's guilt."" And went on to say that "​The State cannot violate the evidentiary rules and defendant's constitutional rights by presenting improper lay opinion through a different means. Ultimately, the unredacted interrogation video presented the same risk of affecting the jury's perception of defendant's credibility as the detective's in-court testimony[.]"

​In summary, although the disputed statements may be viewed as proper interrogation techniques, they are not proper statements for presentation to the jury in an unredacted statement. We therefore conclude the disputed statements were lay opinions interpreting the evidence, a function solely entrusted to the jury.
. . .
​Even if the failure to redact defendant's invocation of counsel and the prosecutor's comments in summation did not rise to plain error, those errors combined with the failure to redact the detectives' lay opinion were capable of producing an unjust result, warranting reversal of defendant's convictions. 

The Court also noted that the failure to give the promised limiting instruction didn't help. But would it anyway? I've posted before my thoughts about limiting or curative instructions being next to useless for the more serious issues, so I won't repeat them here.

Would United States v. Burnett, ACM 39999, 2022 CCA LEXIS 342 (A.F. Crim. App. Jun. 10, 2022) rev. denied 83 M.J. 73 (C.A.A.F. 2022) survive in the NJ Superior Court?