On certification to the Superior Court, Appellate Division.
The opinion of the court was delivered by: Judge Cuff
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not have been summarized.)
Argued November 27, 2012 -- Decided May 16, 2013
CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
The issue in this appeal is whether video recordings of pretrial statements given by a defendant or a victim, which were played to the jury during trial and marked as trial exhibits and admitted in evidence, may be given to the jury to review in whole or in part and as many times as it desires in the jury room during deliberations.
Defendant was charged with sexually assaulting T.P., his nine-year-old great-niece, during a sleepover at a relative's house. Before trial, T.P. and defendant each gave a video-recorded statement to investigators. In T.P.'s statement, she described how defendant touched her inappropriately. In defendant's statement, he first denied having sexual contact with T.P., but then admitted that "in a moment of weakness" he lifted T.P.'s legs, grabbed "her booty," and placed his mouth on her vagina. At trial, defendant acknowledged making the statement, but he insisted that his admission was false. The video recordings of both interviews were marked as exhibits, played at trial, and introduced in evidence. During deliberations, the jury requested access to play both recordings in the jury room. The judge discussed the request with the prosecutor and defense counsel, who did not object. Defendant's attorney stated it was the "equivalent" of a written statement marked into evidence and given to the jury in the jury room. The judge instructed a court officer to set up equipment in the jury room. The jurors were allowed to play the recordings at their discretion and discuss them as they watched them. The jury found defendant guilty on all charges.
Defendant moved for a new trial, arguing that the jury's use of the video recordings in the jury room was a miscarriage of justice. In denying the motion, the trial court distinguished this case from State v. Burr, 195 N.J. 119 (2008), in which the Court held that a video-recorded statement must be replayed in open court under the direct supervision of the judge. Here, the trial court noted that the parties did not object, the video recordings were admitted into evidence and previously played in open court, there were no transcripts of the recordings, the jury was given both videos, and a playback in open court would be insufficient because the jury wanted to deliberate while watching the videos. The court concluded that the failure to follow Burr's procedural guidelines was harmless error.
The Appellate Division reversed, concluded that permitting unrestricted access to the video-recorded statements constituted plain error capable of producing an unjust result. In the panel's view, access to both statements did not cure the threat that the jury would unfairly emphasize one statement over other evidence, and unfettered access during deliberations "strips the trial judge of the ability to maintain a record of what was viewed and how often it was viewed." The panel held that unfettered access to the videos during deliberations deprived defendant of the opportunity to be present at a critical stage of the proceedings and was a structural error affecting the trial, requiring reversal. The Court granted the State's petition for certification. 209 N.J. 100 (2012).
HELD: As the Court held in State v. Burr, 195 N.J. 119 (2008), and reinforced in State v. Miller, 205 N.J. 109 (2011), a video-recorded statement must be replayed in open court under the direct supervision of the judge. Applying the invited-error doctrine in this case, however, the decision to permit unfettered access to the video-recorded statements during deliberations was not plain error and does not warrant reversal of the conviction.
1. In State v. Michaels, 264 N.J. Super. 579 (App. Div. 1993), aff'd on other grounds, 136 N.J. 299 (1994), the Appellate Division held that it was error to allow a jury to have unfettered access to video-recorded testimony in the jury room, but declined to hold that that it was error to replay such testimony in open court. The court cautioned trial judges to determine whether the video replay responds to a specific inquiry and to balance the jury's request against any prejudice. In State v. Burr, the Court addressed whether a jury may review a video-recorded pretrial statement, which had been marked as an exhibit and admitted into evidence, during deliberations. Although evidentiary exhibits are usually given to the jury during deliberations, the Court concluded a jury should not have unfettered access to video-recorded statements because, as with video-recorded testimony, the jury may unfairly emphasize them over other trial testimony. In Burr, the Court held that if a jury asks to replay a video-recorded pretrial interview that has been introduced into evidence, the precautionary procedures adopted in Michaels must be applied. The court should ask the jury whether it would be satisfied with a readback of the testimony. If the jury insists on viewing the video again, then the court must consider fairness to the defendant and determine whether the jury must also hear a readback of any direct and cross-examination testimony to provide proper context for the video playback. The trial court retains discretion to deny the playback request if the prejudice to the defendant from the playback could not be ameliorated through other means. Finally, any video playback must occur in open court. (pp. 12-16)
2. In State v. Miller, the Court built on the precautionary measures articulated in Burr and Michaels, emphasizing that, in responding to a jury request to review trial testimony, the trial court should focus on the proper limits needed to insure a fair proceeding. The Court recognized the trial court's broad discretion to control readbacks and playbacks and recommended further precautions, such as eliminating sidebars and inadmissible testimony to which counsel objected and providing the requested testimony in full. The rule announced in Burr and Michaels, and reiterated in Miller, is consistent with the rule in many other jurisdictions. All recognize that the response to a jury's request for a replay of a video recording is vested in the discretion of the trial judge. (pp. 16-20)
3. Here, although the Court does not approve of the unfettered access to the video-recorded statements in the jury room, the procedure used did not undermine the structure of the trial process. The flawed process did not implicate defendant's rights to confront evidence or witnesses against him or to assure a fair trial. Once deliberations began, defendant's ability to influence the course of events was complete and his fate was in the jury's hands. (pp. 20-23)
4. A trial judge's discretion to permit replays of testimony is not without limits. The judge must take measures to avoid the dangers associated with video-recorded evidence and must not permit unfettered access during jury deliberations. Although Rule 1:8-8 does not limit the type of exhibits that may be taken into the jury room, a video-recorded statement is a hybrid that is considered both a demonstrative exhibit and testimony. A video replay is like having the witness testify a second time and can be very persuasive. When a jury asks to replay recorded statements marked as a trial exhibit and received in evidence, the trial judge's consideration of fairness to the defendant must include whether parts of direct and cross examination at trial also must be replayed to provide context. The jury shall not have unfettered access to recorded statements in the jury room. Replay must be in open court. (pp. 23-25)
5. The procedure used here did not comport with Burr and Michaels. However, defendant invited the error. His counsel used his recording as part of her defense strategy by encouraging the jury to consider it during deliberations. She did not object to the jury's unfettered access to the videos in the jury room, and even provided a rationale to support such access. Defense counsel encouraged the trial court to grant the jury's request; at the very least, she consented to it. Under the invited-error doctrine, the error was plainly invited and does not warrant reversal of defendant's conviction. (pp. 25-30)
The judgment of the Appellate Division is REVERSED and defendant's conviction is REINSTATED.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, HOENS, and PATTERSON; and JUDGE RODRIGUEZ (temporarily assigned) join in JUDGE CUFF's opinion.
JUDGE CUFF (temporarily assigned) delivered the opinion of the Court.
Over the years, the method of creating a verbatim record of a trial has changed. Since at least 1948, a certified shorthand reporter created a verbatim record of trial proceedings. If a jury requested to review the testimony of a witness, the court reporter identified the relevant portions of the testimony and read it to the jury. The use of audio-recording equipment to create the verbatim trial record was introduced in the trial courts in 1986. Once universal, the certified shorthand reporter is now a rarity in our trial courts.*fn1 In an audio courtroom, a readback of testimony is not in the sterile voice of the court reporter but in the voices of the questioner and witness. Some courtrooms are also equipped to create and maintain a video and audio record of the proceedings. Most readbacks, however, are confined to the audio record.
As the developments for creating a verbatim trial record evolved, standards for preserving interviews of witnesses and suspects also changed. Interviews of young victims of sexual assault and custodial interrogations and statements of suspects now must be video recorded. The video recordings of interviews are often played at trial and admitted in evidence.
A request by a deliberating jury to review testimony is a common occurrence. An audio or video playback might appear to be the best response to a jury request to review certain testimony. Those playbacks, however, give rise to a concern that their use may compromise the fairness of the trial.
In this appeal, we address the issue of whether video recordings of statements given by a defendant or a victim played to the jury during trial, and marked as trial exhibits and admitted in evidence, may be given to the jury to review in whole or in part and for however many times it desires in the jury room during deliberations.
Here, defendant was charged with aggravated sexual assault of his nine-year-old great-niece. Two video-recorded statements, one of the victim and one of defendant, were played at trial and introduced in evidence. During jury deliberations, the jury requested to review the video recording of the victim's and defendant's statements. The jury asked for and the trial court, with the consent of both counsel, provided the recordings and the video player to allow review of the statements during deliberations. Although the video recording of a defendant's statement or a victim's statement is admissible evidence, playbacks of such testimony have the capacity to permit a jury to place undue emphasis on a single item of evidence. An audio recording permits the jury to hear every inflection, every hesitation, and every equivocation in the voice of the witness. A video recording magnifies the effect of a playback of testimony. Repeated jury review of a video-recorded statement is tantamount to a second, third, or even fourth appearance of the same witness at trial.
For those reasons, we held in State v. Burr, 195 N.J. 119 (2008), and reiterated in State v. Miller, 205 N.J. 109 (2011), that a video-recorded statement must be replayed in open court under the direct supervision of the judge. We repeat that rule today. In the unique circumstances of this case, however, the decision to permit unfettered access to the video-recorded statements during deliberations cannot be considered plain error, and that decision does not warrant reversal of the conviction. We, therefore, reverse.
On March 10, 2007, nine-year-old T.P. slept at her great-grandmother's apartment. T.S.R., T.P.'s great-aunt, and her husband, defendant A.R., also stayed at the apartment that evening. T.P. slept on one couch, her great-aunt slept on another couch, and defendant slept on an air mattress on the floor, all in the living room.
T.P. was prone to snoring, and her family members had been instructed to flip her onto her stomach to cease her snoring. During the March 10, 2007 sleepover, defendant awoke to T.P.'s snoring and arose to turn her onto her stomach. T.P. was wearing a nightgown without any underpants.
According to T.P., she awoke because she felt someone pull on her nightgown. Then she described a feeling as if someone "was putting lotion on me. And then he, [defendant] has put his hand through my privacy part . . . ." Then, she reported that defendant lifted her legs and licked her vaginal area.
T.P. left the couch and went into her great-grandmother's room. Defendant's wife, who remained asleep on another couch in the living room, awoke when the door to the bedroom slammed. She got up, went into the bedroom, and T.P. told her and ...