On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
Before Judges Gaulkin, D'Annunzio and Wallace
[273 NJSuper Page 176] The opinion of the court was delivered by
In this personal injury action by a tenant against his landlords, plaintiff appeals from a judgment entered on a jury verdict of no cause for action.
Plaintiff fell in the vestibule of the three family beach house in which his apartment was located, allegedly because of a defective rug runner which covered the vestibule floor. Defendant contended, among other things, that plaintiff slipped and fell because the boat shoes he was wearing were worn and no longer serviceable.
During the trial a photograph was introduced into evidence. It showed plaintiff on the floor of the vestibule being administered to by an emergency squad shortly after his fall, with the sole of his right shoe visible in the picture. The photograph was introduced into evidence and passed to the jury, but defendant's request that the jury also be supplied with a magnifying glass at that time, objected to by plaintiff, was denied. During summation, defense counsel told the jury that he was going to ask the court to allow the jury to look at the photograph "as though it were blown up under magnification." After the court charged the jury, defendant's request that the jury be supplied with a magnifying glass was objected to by plaintiff's counsel and denied by the court. During deliberations, the jury requested the magnifying glass and that request was granted, over plaintiff's objection.
On appeal, plaintiff contends that the court erred in allowing the jury the use of a magnifying glass during its deliberations. We agree and reverse.
Defendant contends that a jury's use of a magnifying glass to examine evidence during deliberations is not error, relying on State v. Cerciello, 86 N.J.L. 309, 312-13, 90 A. 1112 (E. & A. 1914), and decisions from other jurisdictions. We conclude that those authorities are distinguishable and do not provide strong support for defendant's position in the present case.
In Cerciello, the magnifying glass was introduced into evidence at the trial because it had been used by an expert witness to
detect the impression of defendant's fingerprint on a hatchet. The expert testified at trial and explained "the history and quality of the lenses." Id. Thus, the use of the lens and the information its use revealed were explored during the trial.
In United States v. Young, 814 F.2d 392, 396-97 (7th Cir.) cert. denied, 484 U.S. 838, 108 S. Ct. 121, 98 L. Ed. 2d 79 (1987), the Court of Appeals rejected defendant's contention that the trial court had erred in granting the jury's request for a magnifying glass, made after deliberations had commenced. We note, however, that unlike the present case, defendant did not object to the jury's request and, therefore, defendant's contention was evaluated under the plain error standard. Id. at 396. Moreover, the opinion does not inform us of the nature of the evidence which would lend itself to evaluation with a magnifying glass. Consequently, we are unable to ...