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Condella v. Cumberland Farms

October 21, 1996

BRIAN CONDELLA, PLAINTIFF
v.
CUMBERLAND FARMS, INC., JOHN DOE (A FICTITIOUS NAME), MARY DOE (A FICTITIOUS NAME), ABC PARTNERSHIPS (A FICTITIOUS NAME), AND XYZ CORPORATIONS, (A FICTITIOUS NAME), DEFENDANTS



Winkelstein, J.s.c.

The opinion of the court was delivered by: Winkelstein

WINKELSTEIN, J.S.C.

The issue before the court is the propriety of counsel replaying portions of the videotaped trial testimony during summation. This opinion is a more complete explanation of the court's decision during trial.

This matter comes before the court for a trial before a jury as to damages. Plaintiff slipped and fell at a Cumberland Farms market. There is no dispute as to liability or comparative negligence. The issue is what injuries, if any, plaintiff suffered as a result of the fall.

As one might expect, the physician who testified on behalf of plaintiff stated that plaintiff's injuries were substantial, permanent and proximately caused by his fall. The defense doctor rendered a contrary opinion, but during the course of his testimony he made certain statements which were not inconsistent with the position taken by plaintiff. Specifically, the defense doctor admitted the permanency of some of plaintiff's injuries. Plaintiff's counsel has requested that he be permitted to play those portions of the doctor's testimony to the jury and comment thereon during summation. He also requests that the court allow portions of defense counsel's opening to be replayed for the jury. Defense counsel objects, arguing such a presentation would mislead the jury and be highly prejudicial.

In the courtroom in which the trial is being held the record of the proceedings is made on videotape rather than by using a court reporter or recording device. R. 1:2-2. There are a number of cameras mounted on the walls, with microphones on each counsel table, one on the witness box and one on the bench. The cameras in the courtroom are voice activated. Anyone who speaks in the courtroom is not only sound recorded but videotaped as well. At the end of each court day, for a nominal charge of ten dollars, each party to the lawsuit is able to purchase a videotape of the day's proceeding. In the instant case, plaintiff's counsel purchased the videotapes, selected specific portions, spliced them together, and now seeks to show those portions of the trial testimony to the jury as part of his closing statement.

Closing statements, commonly known as summation or closing arguments, are permitted by R. 1:7-1(b). "After the close of the evidence and except as may be otherwise provided in the pretrial order, the parties may make closing statements in the reverse order of opening statements." Counsel is to be given "broad latitude" in summation but "comment must be restrained within the facts shown or reasonably suggested by the evidence adduced." State v. Bogen, 13 N.J. 137, 140, 98 A.2d 295, cert. denied, 346 U.S. 825 (1953). Counsel may not "misstate the evidence nor distort the factual picture." Matthews v. Nelson, 57 N.J. Super. 515, 521, 155 A.2d 111 (App.Div.), certif. denied, 31 N.J. 296 (1959).

Case law discussing the replaying of videotape testimony for the jury is limited, but State v. Michaels, 264 N.J. Super. 579, 625 A.2d 489 (App. Div.), certif. denied, 134 N.J. 476, 634 A.2d 523 (1993), lends support to plaintiff's position. In Michaels the defendant was on trial for child molestation. See id. The testimony of the abused children was presented via videotape pursuant to N.J.S.A. 2A:84A-32.4. In other words, the children were allowed to testify by closed circuit television (CCTV) and a videotape was made of their testimony. At the request of the jurors, the actual videotape, rather than traditional transcripts of the testimony, was later provided to the jury for review during deliberations. Id. See also, State of New Jersey v. Margaret Kelly Michaels: An Overview, Robert Rosenthal, 1 Psychol. Pub. Pol'y & L. 246 (1995). On appeal of the trial Judge's ruling that the jury could review the videotapes rather than the written transcripts, the Appellate Division declined to find error. See 264 N.J. Super. at 641-44. The trial court reasoned that the jury's review of the videotapes was synonymous with a review of the written transcript and the Appellate division agreed. Id. at 642. The Appellate court cited several federal cases, agreeing that although it is error to allow the jury to have videotaped testimony and a means of playing it in the jury room, id. at 643, playing the videotape of testimony in its entirety for the jury in open court is permissible. Id. at 644. The Appellate Division went on to note:

It is clear that videotaped testimony provides more than conventional, transcribed testimony. The witness' actual image, available in a video replay, presents much more information than does a transcript reading. In essence, the witness is brought before the jury a second time, after completion of the defense case, to repeat exactly what was testified to in the State's case. The witness' words and all of the animation, passion, or sympathy originally conveyed are again presented to the jury.

[ Id. at 644.]

The court then opined, in the context of allowing the jurors to view the actual trial testimony on videotape, that caution should be exercised when allowing the replaying of videotaped testimony and that first a rereading of the written transcript should be offered. Id. The court stated that if it is determined that the request to review videotaped testimony is reasonable, the trial Judge should exercise his discretion "to balance the need against any possible prejudice in each particular case." Id.

A number of other published opinions addressing the ability of a jury to request a review of videotaped testimony, usually deposition testimony, during deliberations are in accord.. See, e.g., United States v. Barker, 988 F.2d 77 (9th Cir. 1993); Pfaff v. Oklahoma, 830 P.2d 193 (Ct. Crim. App. Okl. 1992); Minnesota v. Kraushaar, 470 N.W.2d 509 (S. Ct. Minn. 1991); Missouri v. Jennings, 815 S.W.2d 434 (Miss. Ct. App. 1991); United States v. Sacco, 869 F.2d 499 (9th Cir. 1989); United States v. Binder, 769 F.2d 595 (9th Cir. 1985). The common thread of the decisions is the ability of the court to monitor what is shown and balance the benefits of showing the video against any possible prejudice to the other party.

Using a similar analysis, this court finds that it is within the trial court's discretion to allow counsel to show portions of the videotaped trial testimony and make comment thereon during summation. Just as it is acceptable to read portions of the trial testimony from a transcript to the jury during summation, similarly, there should be no prohibition against showing actual portions of the videotape testimony. Showing portions of videotape testimony is certainly at least as accurate, if not more accurate, than reading portions of the written transcript, as the replay of the actual testimony is complete with the intonations and emotions of the witness. Showing the videotape testimony is also more economical; a ten dollar fee entitles counsel to the tape of the entire day's testimony as opposed to a per page charge for a written transcript. Further, obtaining videotape testimony is more convenient than ordering a written transcript, since the videotape is available at the end of each court day for immediate review, with no need to wait hours or overnight for receipt of the written transcript.

The court recognizes, however, that there are a number of pitfalls which must be avoided when showing portions of the videotape. The portions of the videotape testimony shown during summation should not be so lengthy as to constitute a second trial emphasizing only one litigant's side of the case. The court must exercise its discretion to limit the amount actually played by counsel during summation. In this case, each segment of the videotape to be shown is no more than one or two minutes in ...


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