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Margaret Kelly
Michaels: Section VII
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| VII.
Defendant asserts that it was error to grant the jury's request to review the videotaped trial testimony of the children during jury deliberations. Despite our earlier determination and observations regarding the use of CCTV and the content of the tapes themselves, we choose to make further observations on the issue as there are presently no New Jersey cases on point. Defendant argued during trial that it would be grossly unfair to replay the CCTV testimony since any request for repetition of defendant's testimony would be satisfied by the much less dramatic form of reading her testimony from a transcript. Therefore, defendant contended it was essential to a fair trial, since her testimony could not be replayed on videotape, that all the testimony should be read back from a transcript. The trial court issued an order allowing replay of the CCTV testimony upon the jury's request. Defendant sought relief from this court prior to summations. We denied leave to appeal. Soon after retiring to deliberate, the jury requested a review of the CCTV testimony of each child. The jury wanted to deliberate after reviewing the videotape and other evidence as to each child before proceeding to view the videotape and evidence concerning the next child. Defendant again argued that only a reading of the children's testimony would be fair and that replay of the CCTV tapes would prejudice her right to a fair trial. The court again ruled that the jury's request for the taped testimony was the same as a request for a reading of testimony which had only been recorded stenographically. Accordingly, the tape of each child's testimony was played in its entirety in the courtroom with all jurors present; after each replay, the jury retired to deliberate before viewing the next tape. The jury never asked for a reading of defendant's testimony. Defendant, in her motion for a new trial, again argued that the video playback of the children's testimony during deliberations was unfair and prejudicial. The statute authorizing children to give CCTV testimony requires that a transcript be made and included as part of the appellate record. The statute provides: [A] stenographic recording of that [CCTV] testimony shall also be required. A typewritten transcript of that testimony shall be included in the record on appeal. The closed circuit testimony itself shall not constitute part of the record on appeal except on motion for good cause shown. [N.J.S.A. 2A:84A-32.4e.] The Legislature clearly contemplated that a videotape would be made when CCTV testimony was given, but it provided that the videotaped testimony could only be part of the record upon motion and for good cause shown. We do not read this to preclude replaying the videotape at the jury's request. The matter, therefore, is subject to judicial determination. Defendant directs our attention to two cases in which video replay of children's testimony during jury deliberation was found to be reversible error. The Ninth Circuit determined that allowing the jury to have a videotape of children's testimony, with equipment for replaying it in the jury room, was an abuse of discretion. United States v. Binder, 769 F.2d 595, 601 (9th Cir.1985). The court opined that permitting the jury unrestricted access to the videotape during deliberations "was equivalent to allowing a live witness to testify a second time in the jury room." Id. at 601 n. 1. The court held: Videotape testimony is unique. It enables the jury to observe the demeanor and to hear the testimony of the witness. It serves as the functional equivalent of a live witness. Since there was no physical evidence, the only evidence of acts of molestation was presented through the children's videotaped testimony. The defendant denied any criminal conduct, asserting that the children were displeased with him and their charges against him were vindictive. Credibility became a crucial issue. Under these circumstances the videotaped testimony may have taken on great significance. Allowing the jury to see and hear the children's videotaped testimony a second time in the jury room during deliberations unduly emphasized their testimony. [Id. at 600-01 (footnote omitted).] The majority in Binder felt that, if the children's testimony was to be revisited during deliberations, it should have been by a reading of a written transcript. In no event should the video have been replayed. Id. at 601 n. 1. Defendant also cites Martin v. State, 747 P.2d 316, 319-20 (Okla.Crim.App.1987), which held it was reversible error to allow the jury in a sexual-abuse case unrestricted access to children's videotaped testimony during deliberations. However, the Martin court also held that a replay of the taped testimony in open court would, in the court's discretion, be permissible at the jury's request. Id. at 320. We agree with the line of cases holding that it is error to allow the jury to have videotaped testimony and a means of playing it in the jury room. See Binder, supra, 769 F.2d at 601; State v. Kraushaar, 470 N.W.2d 509, 516 (Minn.1991) ("preferable" for review to take place in courtroom); Taylor v. State, 727 P.2d 274, 276 (Wyo.1986); People v. Talley, 824 P.2d 65, 67 (Colo.Ct. App.1991) (audiotape); Martin, supra, 747 P.2d at 320. However, we refuse to hold that it is never permissible, at a jury's request during deliberations, to replay a videotape of testimony in its entirety for the jury, with the defendant present, in open court. See United States v. Sacco, 869 F.2d 499, 502-03 (9th Cir.1989); United States v. McKinney, 822 F.2d 946, 951 (10th Cir.1987); Kraushaar, supra, 470 N.W.2d at 516; State v. Jennings, 815 S.W.2d 434, 440 (Mo.Ct.App.1991); 15 Pfaff v. State, 830 P.2d 193, 195 (Okla.Crim.App.1992). It is clear that videotaped testimony provides more than conventional, transcribed testimony. The witness' actual image, available in a video replay, presents much more information than does a transcript reading. In essence, the witness is brought before the jury a second time, after completion of the defense case, to repeat exactly what was testified to in the State's case. The witness' words and all of the animation, passion, or sympathy originally conveyed are again presented to the jury. It is difficult to deny that there is an advantage that may be gained in such circumstances. However, we cannot say that the replay of child-testimonial videotapes is prejudicial per se or that because of the impact of the visual image, the trial judge should be divested of discretion to accede to a jury's request for a replay. A court exercises wide discretion in granting or denying a jury's request to rehear testimony during deliberations. State v. Wilkerson, 60 N.J. 452, 460 (1972); State v. Wolf, 44 N.J. 176, 185 (1965); 16 State v. DeBellis, 174 N.J.Super. 195, 201 (App.Div.1980). We would, however, caution against
routine
replaying
of such testimony. A trial judge should first seek to satisfy a jury
request
for playback of videotaped testimony by offering a reading of the
transcript
of the testimony. The trial judge should inquire of the jury as
to
whether there is something the jurors are seeking from the videotape
which
would be unavailable to them from an impartial reading of the witness'
testimony. If it is determined that the jury's request for a replay of
the tape appears reasonably necessary to its deliberations, then the
trial
judge should exercise discretion to balance that need against any
possible
prejudice in each particular case. See Evid.R. 4. |
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