State v. A.R., 185 N.J. 256 (2013). This blog does not often report on criminal cases. But the attached decision, written by Judge Cuff for a unanimous Supreme Court, highlights the invited error doctrine, an important argument on appellate review that can apply in both the civil and the criminal context.
The case itself involved the issue of whether videotaped recordings of pretrial statements given by defendant and his neice, the victim of his alleged sexual assault, could be viewed by the jury in the jury room during deliberations. The videos had been played in court during the trial and were marked in evidence. During deliberations, the jury asked to watch the videos in the jury room so they could deliberate while they watched. Neither side objected. In fact, defense counsel stated that this was the equivalent of a written statement marked in evidence and given to the jury to review in the jury room. The jury found defendant guilty.
Defendant then moved for a new trial, complaining that it was improper for the jury to have viewed the videos in the jury room, as opposed to watching them in open court under the supervision of the trial judge. The judge denied the motion. On appeal, the Appellate Division reversed. The Supreme Court granted the State’s petition for certification and reversed, thereby reinstating the guilty verdict.
As Judge Cuff explained, the specific issue was governed by two prior Supreme Court opinions, State v. Burr, 195 N.J. 119 (2008), and State v. Miller, 205 N.J. 109 (2011). Those cases held that jury viewing of recorded video statements must occur in the courtroom, under the watchful eye of the trial judge. Thus, what occurred here was error. However, the invited error doctrine prevented the verdict from being overturned.
The invited error doctrine states, in essence, that trial errors that are “induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal.” The leading cases for the doctrine in the civil context, both of which were cited by Judge Cuff in the course of her discussion about the invited error issue, are Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 503 (1996), and New Jersey Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342 (2010). In sum, where a party “has led the court into error,” that party will not be permitted to “manipulat[e] the system” by complaining on appeal of the very error that that party invited. The invited error doctrine will not be applied, however, where doing so would “cut mortally into the substantive rights of the defendants” or “cause a fundamental miscarriage of justice.”
Here, allowing the jury to see the videos in the jury room was invited error. Defense counsel, in her summation, urged the jury to review the video again. Moreover, when the issue of reviewing the tape in the jury room arose, defense counsel not only did not object, she came up with a rationale for allowing that to occur when she equated the tape with “statement[s] on paper [that] are marked into evidence and brought back there [into the jury room]. They might be able to look at that.”
Given the strength of the State’s evidence and the nature of the error, Judge Cuff found no “fundamental miscarriage of justice” in applying the invited error doctrine. The conviction was reinstated.