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Appellate Division Finds No Harmful Error In Trial Court’s Refusal To Play Back Testimony For Jury During Deliberations

April 08, 2019

ROBERT B. SPAWN reports on a recent unpublished decision from the Superior Court of New Jersey, Appellate Division.

In a recent New Jersey case, a Plaintiff was driving in the westbound lane of 150th Avenue near John F. Kennedy Airport when his car collided with a twenty-seven-foot-long truck owned by a Defendant-Port Authority and operated by its Defendant-Employee (collectively, “Defendants”).  The Employee was turning the truck left onto 148th Street from the eastbound lanes of 150th Avenue just before the accident occurred.  Plaintiff alleged injuries resulting from the accident and filed suit.

At the trial level, a jury found that Plaintiff had failed to prove that the Employee was negligent, and, consequently, the judge dismissed Plaintiff’s complaint with prejudice.  Plaintiff then moved for a judgment notwithstanding the verdict (“JNOV”), or, alternatively, for a new trial.  The trial judge denied both motions, and Plaintiff appealed. 

On appeal, Plaintiff argued that the trial judge committed error when he failed to play back testimony for the jury upon request.  Indeed, shortly after starting its deliberations, the jury had sent the judge the following note: “We are having a question amongst us about which direction Plaintiff turned his wheel before impact.  Can we please see Plaintiff’s testimony in reference to this?”  The judge immediately responded by telling the jurors that it was their “collective recollection” that controls.  The judge further noted that, if the jury were only to be shown a specific segment of Plaintiff’s testimony, that segment might not be “accurate” within the context of Plaintiff’s entire testimony.  The judge also expressed concern that, if specific segments of Plaintiff’s direct testimony were shown, corresponding segments of Plaintiff’s cross-examination would have to be played back as well (in fairness to Defendants).  That process of matching exact sections of Plaintiff’s direct testimony with exact sections of Plaintiff’s cross testimony, according to the judge, would be extremely challenging and time-consuming (without yielding any significant benefit).

The Appellate Division began its analysis on this issue by stating that, although the playing back of all or part of a witness’ testimony is within the discretion of the trial court, in the absence of some unusual circumstance, jury requests to play back testimony should be granted.  The Court also explained that a judge should not generally refuse to grant a jury request to play back testimony merely because doing so would take time. 

In setting forth these principles, the Appellate Division strongly implied that the trial judge in the case at hand mistakenly exercised his discretion by not granting the jury’s playback request.  However, the Court further stated that, even if the judge mistakenly exercised his discretion, it would not reverse the judge’s decision unless the error was harmful.  Here, Plaintiff’s purported attempt to turn his steering wheel to the left shortly before the accident occurred (i.e., the subject of the potential playback testimony) was of little consequence to the jury’s ultimate finding (i.e., that Plaintiff did not prove that Defendant-Employee was negligent).  As such, the Court held that, even if the trial judge committed error in refusing to play back the testimony, that error was not harmful due to the inconsequential nature of the testimony.  Accordingly, the Appellate Division affirmed the dismissal of Plaintiff’s complaint.

Please contact Robert B. Spawn if you have any questions or need assistance in connection with this subject.