A case argued Tuesday at the New Jersey Supreme Court tests how far a judge may go in allowing unsupervised jury views of videotaped testimony.
The Appellate Division found in State v. A.R., A-63-11, that a view outside the presence of the judge and counsel were reversible error and awarded a new trial to a Monmouth County man found guilty of sexually assaulting his wife’s 9-year-old niece.
The state is seeking reinstatement of the conviction, arguing the jury view was proper, despite a Supreme Court ruling that disfavors such unsupervised views.
During deliberations, the jury asked to view lengthy videotaped statements made to police by defendant A.R. and the alleged victim, identified as “Tammy.” A.R. had admitted to the molestation on tape but recanted at trial, claiming his confession was coerced.
Despite misgivings, Superior Court Judge Anthony Mellaci Jr. allowed the jurors to take the videotapes back to the jury room to view privately.
Mellaci and counsel apparently were unaware that two days into A.R.’s trial, the court ruled in State v. Burr, 195 N.J. 119 (2008), that judges — in allowing views of videotaped testimony — must ensure that jurors are given context and that some portions of the tapes are not emphasized over others. Ideally, tapes should be viewed in the presence of a judge and counsel, the court said.
At Tuesday’s hearing, Deputy Attorney General Brian Uzdavinis told the court that the videotape evidence the jury saw was balanced. “The victim provided a detailed account, and [A.R.] confessed in similar detail,” he said.
“Video is the most accurate form of evidence you could have,” he continued. “They’re not transcripts that are vulnerable to misreading or skewed reading by a court reporter.”
Justice Barry Albin said Burr was clear in its pronouncement that videotapes should be viewed in the courtroom and not in the jury room.
Uzdavinis said that should be the practice going forward but he noted that in this case, neither the judge nor the defense lawyer was aware of Burr and the lawyer did not object to the view.
Justice Anne Patterson asked Uzdavinis why the jury’s demands should be given any special weight.
“How much do we want to invade on the deliberation process?” he replied.
Justice Jaynee LaVecchia said it was difficult to see how Mellaci’s decision squared with Burr.
“The court told the jury to view the whole videotape,” Uzdavinis said.
“The jury doesn’t trump what the Supreme Court mandates,” Albin said.
Uzdavinis replied that in Burr, “There was no flat prohibition” on what the jury was allowed to do.
Assistant Deputy Public Defender Jason Coe, A.R.’s lawyer on appeal, said the unsupervised view was plain error. “There was no oversight and no record of what was viewed,” Coe said. “That goes directly to why the Appellate Division felt it was appropriate to reverse.”
Chief Justice Stuart Rabner noted that the judge and the attorneys decided to allow the jury to view the videotapes.
Coe saw it differently, saying the defense lawyer failed to object and that both the lawyer and Mellaci should have been aware of Burr.
Patterson asked why that amounted to plain error.
“The videotape statements and testimony from the victim and defendant are crucial,” Coe said. “The jury was given the opportunity to determine selectively what video to watch and whether to view only a portion of it.” •