State v. Miller, 205 N.J. 79 (2011). Today, live court reporters are rare in state courts. Most courtrooms rely on video or audio recording of trials instead. The issue in this multi-count robbery case, in which the only record was a video recording, was whether the trial judge erred in playing back the entire testimony of one of the alleged victims at the request of the jury. A unanimous Supreme Court, in an opinion by Chief Justice Rabner, readily concluded that the judge’s action was appropriate. “[J]uries should be provided with the best available form of evidence, upon request, unless there is a sufficiently strong, countervailing reason not to proceed in that way. In the digital age, that means presumptively providing video playbacks in favor of read-backs, if the jury so requests.”
The Court then went on to provide largely unsurprising guidelines for video playbacks. Judges should “ordinarily” grant a jury’s playback request, even if the playback would take time. All admitted testimony relating to the jury’s request, whether for a witness’ full testimony or only for testimony on a particular subject, should be played back, in order to give the jury proper context. This means both direct and cross-examination. Trial judges retain discretion, however, to narrow the playback if the testimony is extensive. On the other hand, a jury “should not be required to watch or listen to more testimony than they ask for” where they seek only limited testimony.
Like traditional read-backs, playbacks should occur in open court. The trial judge should make a record of what is played back. Additionally, the court should caution jurors “to consider all of the evidence presented and not give undue weight to the testimony played back.” Finally, trial judges have discretion to limit or edit playbacks in order to avoid prejudice, such as from overly emotional testimony. The burden of showing prejudice is on the party who opposes a playback.
The trial judge in Miller had substantially complied with the guidelines that the Court announced. Defendant’s objection to the playback did not cite any specific prejudice. Accordingly, there was no error in the playback.
The Court addressed two other issues. Defendant objected, for the first time on appeal, to a jury charge that defendant was presumed innocent “even if” he did not testify at trial. Under the plain error standard, Chief Justice Rabner agreed with the Appellate Division that the charge as a whole had “no capacity to lead the jurors astray.” The other issue related to sentencing. Defendant was found guilty on two robbery counts (as well as others), and consecutive sentences were imposed. The Court found the length of the sentences appropriate but remanded on the consecutive sentence issue because the trial judge had not addressed the factors of State v. Yarbrough, 100 N.J. 627 (1985), which guide the decision as to whether consecutive sentences are proper.