By its present motion for a new trial, third party defendant, Decor Trends International, hereinafter known as D.T., provokes this question:
Was the apparent testing-examination by the jury of a physical item of evidence, an aisle directory exemplar, improper and unfairly prejudicial to the defendant and a fair trial?
Research of New Jersey case law indicates that to be an apparently novel inquiry in our jurisdiction.
This trial involved a claim by the plaintiff who, while shopping at a Foodtown Supermarket on November 5, 1986, was struck by a falling overhead aisle directory. Plaintiff brought a claim for resulting damages against defendant supermarket owner and defendant Decor Trends which had designed and installed such directories. All claims were settled by both defendants with the plaintiff before trial. Thereafter, defendants, by way of jury trial, sought the resolution of proportionate liability for the cause of the accident, which had been the subject of their mutual cross-claims. The trial jury found D.T. to be completely responsible and exculpated the store owner, V & V Inc.
At trial, D.T.'s counsel engaged the store's engineering expert in extensive cross-examination. During such, the expert was requested by counsel to perform an experiment on the overhead aisle directory exemplar which was in evidence. Counsel inquired of the expert if he could separate the sign from its moorings. He complied by manually -- and easily -- pulling the sign from its base.
Before the physical evidence was prepared for submission to the deliberating jury, D.T.'s lawyer urged that another, an "untested" aisle sign also be sent to the jury. It was permitted as additional evidence over the objection of V & V.
After the return of the verdict, D.T.'s counsel observed that the "untested" aisle directory's pole had been pulled from its base. She objected to this alleged improper experiment and the instant motion has followed.
Although no reported case in our jurisdiction directly addresses the scope of permissible juror experimentation, our Supreme Court has previously considered an analogous situation. cf. Titus v. State, 49 N.J.L. 36, 7 A. 621 (Sup.Ct.1886). Titus was a capital criminal case wherein defendant was charged with rape and felony murder. The victim's clothes and a wooden platform had been sent to the jury as an aid to its deliberation. The jurors obtained a magnifying glass surreptitiously
and compared the wood fibers on the victim's clothing with those of the platform.
At trial, the State had contended the victim was thrown from the platform to her death. The State's expert witness had testified that he had examined the wood fibers and concluded that those found on the victim's clothing matched the wooden ...