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Recent Appellate Division Opinion Regarding Guidance on Admissibility of Evidence at Trial and Trial Tactics

The Appellate Division on September 12, 2019 rendered an unpublished Opinion on several trial-related issues.  The matter is Gomez v. Fritsche, 2019 WL 4313116.

This matter arose from a motor vehicle accident.  The jury found Defendant 100% negligent for causing an intersectional accident, and awarded Plaintiff the sum of $115,000.00.  Defendant appealed the denial of her Motion for a New Trial, arguing that the cumulative prejudice from several errors – specifically, the Trial Court barring evidence that Plaintiff had previously sustained permanent injuries; allowing the investigating police officer to opine as to fault for the accident; barring defense counsel from objecting during Plaintiff’s counsel’s closing; and Plaintiff’s counsel’s improper remarks during summation, deprived Defendant of a fair trial.  The Appellate Division agreed, in part, vacated the verdict, and remanded for a new trial.

As to the issue of evidence of Plaintiff’s previous permanent injuries, there was evidence that Plaintiff had been involved in prior motor vehicle accidents in 1994 and 2000.  A doctor had written in a report that Plaintiff suffered permanent injuries to her neck and back which would result in ongoing pain and limitation regarding both body parts.  The Trial Court granted a Motion in limine filed by Plaintiff to preclude defense counsel from raising the same, finding that the probative value of this evidence was outweighed by the risk of undue prejudice.  The Trial Court indicated that defense counsel would not be allowed to utilize this evidence even if Plaintiff testified that she never had any prior problems with her neck or back.

As to the issue of the police officer, the officer was allowed to read his conclusion in the police report to the effect that Defendant failed to yield to Plaintiff and was inattentive in not ensuring that the roadway was clear prior to entering the same.

During summation, Plaintiff’s counsel referenced the fact that while Defendant had testified, the Defendant thereafter left and was not present in Court during the closing.  Defense counsel objected, but the Trial Judge advised that “I should’ve mentioned this earlier, there’s no objections in closing argument.  Now that you’ve done it, I suggest it’s… closing argument.  He’s entitled to argue and if he wants to put that inference out there and draw an inference it’s fair game.  I don’t know why she’s here, she’s not here, but you know, I don’t understand the objection and it’s overruled.”

Thereafter, defense counsel apparently heeded the Trial Judge’s admonition not to object during Plaintiff’s closing statement, even when Plaintiff’s counsel then specifically invited the jurors to place themselves in Plaintiff’s situation.

The Appellate Division began by noting that as a general matter, trial courts have considerable discretion in determining whether evidence is relevant, and, if so, whether it should be excluded under N.J.R.E. 403 due to the fact that the probative value of the evidence is substantially outweighed by the risk of undue prejudice, confusion of issues or misleading the jury.  Wymbs v. Twp of Wayne, 163 N.J. 523, 537 (2000).

In this regard, the Appellate Division observed that the prior reports were as a threshold matter hearsay, inadmissible except as provided in N.J.R.E. 802.  Pursuant to Skibinski v. Smith, 206 N.J. Super. 349, 353 (App. Div. 1985), expert reports are not statements of a party and therefore cannot be treated as an admission simply because they have been furnished in discovery by that party.

The Appellate Division noted that the defense did not intend to call as a witness the doctor who wrote the old report. Accordingly, it held that given the foregoing, the Trial Court acted within its broad discretion in prohibiting Defendant from utilizing the same.

However, regarding the Trial Court’s ruling permitting the police officer to render his opinion regarding the fault for the accident, the Appellate Division found otherwise.

While police reports are admissible as a business record and as a public record, if properly authenticated, if a proponent seeks to admit the report or an officer’s trial testimony regarding the same to prove the truth of something contained therein, a separate hearsay exception is required.

Significantly, New Jersey courts have prohibited the admission of police testimony as to the issue of fault.  Indeed, for a party to present a police officer as an expert, that officer must be properly qualified as an expert pursuant to N.J.R.E. 702.

Generally, police officers can present lay opinion testimony, but the same “is limited to what was directly perceived by the witness and may not rest on otherwise inadmissible hearsay.” State v. McLean, 205 N.J. 438, 460 (2011).  Thus, an officer is not permitted to provide opinion testimony at trial when that opinion is based primarily on the statements of others.  Neno v. Clinton, 167 N.J. 573, 585 (2001).

While Plaintiff argued that the officer never use the word “fault,” the Appellate Division indicated that the testimony as a whole made clear that in the opinion of the officer the Defendant was at fault at the time of the accident.

Indeed, Plaintiff’s counsel then “compounded the error” by emphasizing the same during his closing, telling the jury that the Defendant did not want to jurors to hear the police officer’s testimony.

Finally, turning to the issues regarding Plaintiff’s counsel’s closing argument, the Appellate Division cited State v. Farrell, 61 N.J. 99, 106 (1972) and State v. Bauman, 298 N.J. Super. 176, 207 (App. Div. 1997) for the proposition that challenging an adversary’s improper closing remarks after the closing, rather than during it, fails to timely alert the Court to the irregularities and provide the court with an opportunity to address and cure the same.

To the contrary, a party is precluded from claiming that it was harmed absent timely objection during the closing argument.  Farrell, 61 N.J. at 106.

Accordingly, the Appellate Division held that Trial Judges should not admonish counsel against making “appropriate” contemporaneous objections, expressing confidence that the bench can in appropriate circumstances promptly deal with any abusive conduct arising from the ability to object during an adversary’s closing.

Finally, the Appellate Division turned to consideration of specific remarks made by Plaintiff’s counsel during summation.  First, that regarding the Defendant not returning to the courtroom after testifying because Defendant – unlike Plaintiff – did not want to “see the case through.”  Second, the invitation for the jurors to place themselves in Plaintiff’s situation as to why jurors would or would not choose to undergo an epidural injection.  And third, the suggestion that defense counsel did not want the jury to hear the police officer’s conclusion about the accident.

Counsel are generally allowed significant latitude in closing arguments.  Bender v. Adelson, 187 N.J. 411, 431 (2006).  However, arguments may not include unfair and prejudicial appeals to emotion.  Jackowitz v. Lang, 408 N.J. Super. 495, 504-505 (App. Div. 2009).  Further, closing arguments must be based in truth and “counsel may not misstate the evidence nor distort the factual picture.”  Condella v. Cumberland Farms, Inc., 298 N.J. Super. 531, 534 (Law Div. 1996).  Indeed, in Rodd v. Raritan Radiologic Assocs., P.A., 373 N.J. Super. 154, 171 (App. Div. 2004), the Court made clear that counsel may not disparage opposing counsel, or a witness, or suggest an intent to deceive the jury or deliberately distort the evidence.

Indeed, Botta v. Brunner, 26 N.J. 82, 94 (1958) even describes the prohibition against asking jurors what they would expect to receive if they were in a similar position to Plaintiff as the “Golden Rule.”

Accordingly, the Appellate Division found that while these issues may have been capable of being cured had a timely objection been made, since the Trial Judge had banned objections, this was impossible.

Significantly, the Appellate Division noted that the cumulative effect of small errors may collectively be so great as to warrant a new trial.  Pellicer ex rel Pellicer v. St. Barnabas Hospital, 200 N.J. 22, 53 (2009).  With the possible exception of the police officer’s improper opinion testimony, none of the issues addressed above would have warranted a new trial on their own. However, cumulatively, they did.  Accordingly, the Order of Judgment was vacated and the matter remanded for a new trial.

Thus, this Opinion is an instructive reminder from the Appellate Division on several key issues, including when evidence of prior injuries may be admissible, and how; the limits to which a police officer will generally be permitted to testify; and the proper process to be followed by both parties during closing arguments at trial.

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