In State v. A.R., No. A-3405-08 (App. Div. Aug. 10, 2011), the defendant was convicted of two counts of first-degree aggravated sexual assault; one count of second-degree sexual assault; and one count of third-degree endangering the welfare of a child.  The conviction was based upon an incident that occurred when the defendant sexually assaulted his nine-year-old niece while his wife was asleep in the same room.  The victim advised various members of her family of the assault and the defendant was arrested and taken to Neptune Township Police Station.  After receiving the Miranda warnings, the defendant confessed to sexually assaulting his niece.  The Appellate Division reversed the convictions because the judge allowed the jury “unfettered access” in the jury room to the videotaped interviews of the defendant and his victim during its deliberations.

At trial, the jury asked the judge to provide it with the videotaped statements of both the defendant and his victim so that it could play them back and forth and discuss the videos while they were being played.  The judge expressed some reluctance to simply provide the tapes to the jury, but neither counsel objected to having the jury watch the tapes in the jury room.  Following trial, the defendant filed a new trial motion, arguing that allowing the jury to have the videos in the jury room violated State v. Burr, 195 N.J. 119 (2008), which was decided on the second day of the trial.  The trial court denied the motion.

The Appellate Division acknowledged that the trial court did not err in allowing the jury to watch the videotaped statements during deliberations and that the court had taken “great pains” to ensure that the jury’s access to the videos was fair to both parties.  However, the Appellate Division determined that simply providing the videos to the jury and giving it “unfettered access” to the statements was plain error that required a reversal.  In that regard, the Appellate Division reasoned that even though the jury “was provided statements from both [the victim] and defendant[,] [that] does not cure the danger inherent in affording a jury unfettered access to videotaped statements in the jury room because the jury is not prevented from unfairly emphasizing the video statements over other testimonial evidence.  Further, permitting the jury to view the videotaped statements in the jury room strips the trial judge of the ability to maintain a record of what was viewed and how often it was viewed.”

The Appellate Division conceded that in any case jurors may focus on a particular piece of evidence during deliberations to the exclusion of other evidence and that there was nothing inherently improper about doing so.  However, the court maintained that a videotaped statement was different – and more powerful – than other types of exhibits because it is effectively a hybrid of demonstrative and testimonial evidence.  Relying upon the Supreme Court’s ruling in Burr, the Appellate Division concluded that the trial court erred in allowing the jury to view the videotaped statements in the jury room rather than open court.  In that regard, the court reasoned that “[g]iven the absence of physical evidence, the statements of both defendant and the victim were critical pieces of evidence upon which the jury was called upon to make credibility assessments.  Permitting the jury to have unfettered access to the videotaped statements in the jury room enabled the jury to unfairly emphasize the videotaped statements over other testimony presented at trial.”  The court further buttressed its conclusion by pointing out that allowing the jury to view the videotapes outside of the defendant’s presence and the court’s supervision was a “structural error” that affected the trial framework.  Therefore, the Appellate Division was “constrained to reverse defendant’s conviction.”