(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued January 30, 1995 -- Decided May 17, 1995
GARIBALDI, J., writing for a unanimous Court.
The issue on appeal is whether a jury's use of a magnifying glass on a properly admitted photograph
during deliberations constituted new or additional evidence, required instruction from an expert, or resulted
in harmless error under Rule 2:10-2.
Charles Boland slipped and fell in the vestibule of a three-family beach home owned by his
landlords, Peter and Judy Dolan. Boland claimed that as he walked into the vestibule with a clapboard and
volleyball net in his hands, something caught his foot and he fell, fracturing his ankle in several places.
Boland sued the Dolans for negligently permitting a dangerous condition on their property. Boland claimed
that a defective plastic runner had caused his fall. On the other hand, the Dolans' alleged that Boland's slip
and fall was caused in whole or in part by the worn right sole of his topsider shoe. Before Boland was
transported to the hospital, another tenant in the Dolan home took a photograph that showed the bottom of
that shoe. That photograph (Photograph) was properly admitted into evidence during trial.
There was testimony regarding the Photograph from Boland, the Dolans and an expert. The
Dolans' attorney alluded to the jury's use of a magnifying glass when cross-examining Boland and in his
summation and, during their deliberations, the jury asked to use a magnifying glass. Over the objection of
Boland's attorney, the trial court permitted the jury to use a conventional magnifying glass. Thereafter, the
jury returned a verdict of no cause of action in favor of the Dolans.
Boland made a motion for a new trial, contending that the court's "admission" of the magnifying
glass into evidence constituted a miscarriage of justice in that it was prejudicial. The trial court denied the
motion. On appeal, the Appellate Division reversed the decision of the trial court and remanded the
matter, stating that it could not determine through the use of a magnifying glass whether a jury has
knowledge and experience to decide that a shoe had lost its slip resistance without the aid of expert
testimony.
The Supreme Court granted certification.
HELD: The jury's use of a magnifying glass during deliberations did not constitute new evidence; rather, it
was a mere aid to assist the natural vision of the jurors. Moreover, use of a familiar device like an
ordinary magnifying glass generally does not require expert testimony. Lastly, the jury's use of the
magnifying glass was not error capable of producing an unjust result.
1. The Court finds persuasive the reasoning of other courts that have held that the use of a magnifying
glass by a jury in its deliberations is not error. Those courts have analogized the use of a magnifying glass to
the use of eyeglasses. In addition, as early as 1914, New Jersey courts have taken judicial notice of the
undistorted effect of magnifying glasses on pieces of evidence. (pp. 9-14)
2. The Appellate Division failed to follow the well established rule that a jury may use a magnifying glass to see or understand better a properly admitted exhibit. Actually, the cases relied on by the Appellate Division support the position that presenting the jury with a magnifying glass does not constitute
supplementing the evidence. The Dolan's attorney referred to the magnifying glass throughout trial and in
his summation and Boland's attorney had plenty of opportunity to view the Photograph with or without the
magnifying glass. The evidence to be viewed with the magnifying glass was testified to by Boland, the
Dolans, and an expert witness; the trial judge properly allowed the jury to use the magnifying glass, which
only illustrated or heightened evidence properly admitted or testimony of witnesses properly allowed; and
Boland had adequate time to rebut any negative inferences. Thus, the magnifying glass did not constitute
new evidence. (pp. 14-17)
3. Expert testimony is necessary for subject matter that is beyond the knowledge of the average juror
or if it enhances the jury's understanding of the evidence. An instrument of "common knowledge," like an
ordinary magnifying glass, generally requires no expert testimony. (pp. 18-20)
4. Under the harmless error rule, a reviewing court should reverse only if a trial error is clearly
capable of producing an unjust result. The magnifying glass merely highlighted or illustrated the testimony
of the witnesses as well as admissible evidence, and its use did not create sufficient prejudice to justify
granting Boland a new trial pursuant to the harmless error rule.
Judgment of the Appellate Division is REVERSED, and the judgment of the trial court is
REINSTATED.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, STEIN and
COLEMAN join in JUSTICE GARIBALDI'S opinion.
SUPREME COURT OF NEW JERSEY
A-
80 September Term l994
CHARLES BOLAND,
Plaintiff-Respondent,
v.
PETER DOLAN and JUDY DOLAN,
Defendants-Appellants.
Argued January 30, l995 -- Decided May 17, 1995
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
273 N.J. Super. 175 (l994).
Jay H. Greenblatt argued the cause for
appellants (Mr. Greenblatt, attorney; Mr.
Greenblatt and Charles S. Epstein, on the
brief).
Roy D. Curnow argued the cause for respondent
(Drazin and Warshaw, attorneys).
The opinion of the Court was delivered by
GARIBALDI, J.
This appeal arises out of a slip-and-fall accident that occurred while plaintiff, Charles Boland, was a tenant in a three-family beach house owned by defendants, Peter and Judy Dolan. At the time of the accident, plaintiff was inside the vestibule of the house. As he walked into the vestibule with a clapboard and volleyball net in his hands, "something caught his
foot and he slipped." As a result of his fall, plaintiff
suffered multiple fractures to his ankle.
Plaintiff sued defendants for negligently permitting a
dangerous condition on their property. Plaintiff's theory was
that a defective plastic rug runner caused his slip and fall.
Defendants' theory was that plaintiff's slip and fall was caused
in whole or in part by the worn right sole of his topsider shoe.
Before plaintiff was taken to the hospital, another tenant took a
photograph that showed the bottom of that shoe. That photograph
(Photograph) was admitted into evidence.
At issue is whether the jury's use of a magnifying glass on
that properly admitted Photograph during deliberations
constituted new or additional evidence, required instruction from
an expert, or resulted in harmless error under Rule 2:10-2. We
conclude that the magnifying glass did not constitute "new
evidence." Rather, it was a mere aid to assist the natural
vision of the jurors. Use of a familiar device like an ordinary
magnifying glass generally does not require expert testimony.
Moreover, the jury's use of the magnifying glass was not error
capable of producing an unjust result under Rule 2:10-2.
Plaintiff lived in the second floor apartment, and his landlords, Peter and Judy Dolan, lived in the first floor apartment of the Victorian-style house. Plaintiff testified that on the day of the accident, anticipating a hurricane, he
hurriedly removed various recreational items from the beach. At
trial, plaintiff filled in on a diagram pertinent parts of the
scene in the foyer. Plaintiff drew a plastic rug runner and
stated that "as soon as [I] set my foot in here, something
snagged my foot, slipped, my foot went this way . . . . But, I
went that way, snagged the rug with the runner. I went back, . .
. . I had nowhere to go but straight down and that's when I went
down." Two engineers testified as experts on the role of the rug
runner in his fall, and much of the testimony at trial focused on
the rug runner.
Plaintiff also testified that at the time of the accident,
he had worn topsider boat shoes because he worked in the boat
business and knew that that type of shoe was made for walking on
wet decks, for which the shoe had a "corrugated sole that
channels the water away and they are as slip proof as you can
get." He further testified that he could not recall how long he
had owned those shoes, that they were not "worn through or worn
out," and that he "was wearing them every day for work."
While plaintiff was sitting on the rug runner before the
ambulance arrived, the tenant from the third-floor apartment took
the Photograph that shows the entire sole of plaintiff's right
shoe. Eleven days prior to trial, defense counsel, having been
substituted as counsel three days earlier, requested that
Photograph from plaintiff's counsel. Defense counsel learned of
the existence of the Photograph because a photocopy of it had
been attached to plaintiff's interrogatories. At trial,
plaintiff's counsel conceded that he had not responded to
counsel's request prior to trial because he "was out of the
office for a couple of days." Therefore, defense counsel did not
see the Photograph until he requested it during the first morning
of the trial.
At the request of defense counsel, the Photograph was marked
into evidence. Plaintiff was extensively cross-examined about
the condition of his shoes. He repeatedly testified that the
bottoms of his shoes were serviceable and "more than adequate."
Defense Counsel showed plaintiff the Photograph. Plaintiff
described the Photograph as showing "very clearly the areas [on
the shoe] that are white or light tan, are the areas that I walk
on and the areas in the archway [sic] are dark, it may appear as
though it's worn." Defense counsel then asked the trial judge if
he could pass the Photograph to the jury "with a glass." In
response, the trial judge told defense counsel to "[j]ust pass
the picture." Plaintiff's counsel did not ask plaintiff about
the Photograph on re-direct.
On direct examination, defendant Judy Dolan briefly viewed
the Photograph and stated that it accurately portrayed the
condition of plaintiff's shoe on the day of the accident.
Without being shown the Photograph, defendant Peter Dolan then
testified that the bottoms of plaintiff's topsiders "were bald
with a trace of grooves -- traced grooves" on the day of the
accident. When he was later shown the Photograph, defendant
Peter Dolan stated that it showed the way the shoes looked "right
after the accident."
It was not until the end of defense counsel's summation that
the Photograph again was discussed. Defense counsel then
observed that plaintiff's expert on the rug runner had "switched"
his testimony because that expert had heard the testimony about
the Photograph. Defense counsel then stated:
What a stroke of luck, what a stroke of luck
to get a picture showing the underside of
that shoe. And I'm going to ask his Honor to
allow you to look at it as though it were
blown up under magnification. You can see
the underside of that shoe very clearly. How
very, very, very smooth it was. Is that
honest?
Plaintiff did not object to defense counsel's summation. Only on
appeal did he first assert that such an argument was prejudicial.
Plaintiff's counsel did not question his own client or any
witnesses about the Photograph. He did, however, refer to the
Photograph in his summation:
Now, it's incredible that if you listen to what
the Dolans have to say [sic] it is the picture
perfect defense. They're saying that he was
carrying a volleyball net and it just by
happenstance, the volleyball net caught the cement
corner as he's walking up and then he goes down.
And then -- also they looked at his boat shoes,
and he has no tread on his boat shoes. I mean
it's all picture perfect.
The trial judge made no direct reference to the Photograph or the magnifying glass in his jury charge. After the jury left
the courtroom, defense counsel asked the court to allow the jury
to use a magnifying glass to view the Photograph. The trial
judge replied, "Okay," and then asked if the charge had been
sufficient. Only then did plaintiff's counsel state, "the only
problem I have is the magnifying glass. I don't know if that's
appropriate. There's been no testimony that it doesn't distort
the photograph. I have no idea what that magnifying glass is
going to do to these photographs." Pursuant to that post-jury-charge objection, the trial judge instructed plaintiff's counsel
to "look at it, see what you think." During that examination,
defense counsel stated, "[i]t is optically the same as
magnifying, by enlarging a print for the photograph."
Plaintiff's counsel then objected to the jury being given the
magnifying glass because "there should be -- have been evidence
on that issue."
Sustaining plaintiff's counsel's objection, the trial judge
instructed a court officer to take all exhibits to the jury.
After deliberating for approximately one-half hour, the jury
requested a magnifying glass. Outside the presence of the jury,
the trial judge discussed the jury's request with counsel.
Defense counsel insisted that the "magnifying glass is not
evidence, it doesn't prove anything, it's like a ruler. And I
wouldn't have to bring somebody into this Courtroom to calibrate
a ruler in order to give it to the jury as an aid." He also
explained how he could not have obtained a blown-up version of
the Photograph for juror use in lieu of using the magnifying
glass because the Photograph was only turned over by plaintiff
during the course of trial.
In opposition to the jury's request, plaintiff argued that
defendants were trying to "change the evidence in this case."
The trial judge disagreed, stating that defense counsel "talked
about -- through the issues, so he's not changing anything."
Plaintiff's counsel then argued that he had not had an
opportunity to look at the Photograph with the magnifying glass
until the trial judge had urged him to do so after the jury was
removed. He argued that the Photograph "comes as a complete
surprise to us. That we are not ready for, before this trial and
counsel had every opportunity to have those things blown up, and
we could have dealt with that during trial. . . ." In response,
defense counsel reiterated that he had requested in writing the
Photograph more than one week prior to trial, but that
plaintiff's counsel had failed to comply with that request.
The trial judge then allowed the jury to use a conventional
magnifying glass. In so ruling, the trial judge mentioned that
defense counsel had previously requested that the jury use a
specialized type of magnifying glass called a "lupe."
Plaintiff's counsel then "strenuously objected" to the use of the
magnifying glass by the jury. The trial judge overruled his
objection, stating
not only did [defense counsel] use it, but
the jury asked for it, . . . it's not like a
dictionary where you can look through and
find definitions for this, and definitions
for that, . . . . This is simply a tool for
them to look at the photographs . . . it's
not a distortion or changing the photograph.
As a result, the jury obtained the conventional magnifying glass
for the remainder of their deliberations.
The jury returned a verdict of no cause of action in favor
of defendants. The foreman stated that no juror had found that
defendants had been negligent.
Plaintiff made a motion for a new trial, contending that the
court's "admission" of the magnifying glass into evidence
constituted a miscarriage of justice. The crux of plaintiff's
argument was that he was unduly prejudiced by the admission of
the magnifying glass as his counsel did not have an opportunity
during the trial to address it and the enhanced image it
provided. In response, the trial judge noted that during the
trial it had only sustained plaintiff's objection to the use of a
more specialized type of magnifying glass. The trial judge
reiterated the fact that plaintiff's counsel had never requested
to examine the Photograph through the magnifying glass, although
he had had several opportunities to view the evidence with the
magnifying glass during the trial as well as to rebut any
negative inferences that the jury might have drawn from defense
counsel's indirect references to the magnifying glass during his
summation. The trial judge found that there had been no
miscarriage of justice under Rule 4:49-1.
The Appellate Division reversed and remanded the case,
stating, "We cannot determine . . . whether a jury has the
knowledge and experience to decide that a shoe of specialized
design has lost its slip resistance based on what the jury saw, .
. . using the magnifying glass. The significance of an enlarged
view may have rested solely within the purview of expert
testimony."
273 N.J. Super. 175, 180 (l994). We granted
certification.
138 N.J. 262 (l994).
Several courts have held that the use of a magnifying glass by a jury in its deliberations is not error. In those cases, the courts have analogized the use of a magnifying glass to the use of eyeglasses. We find their reasoning to be persuasive.
As early as l9l4, New Jersey courts took judicial notice of the undistorted effect of magnifying glasses on pieces of evidence. In affirming a murder conviction, the Court of Errors and Appeals found that the defendant had not proven how the use of a magnifying glass had prejudiced his case. State v. Cerciello, 86 N.J.L. 309, 313 (1914). The Cerciello Court ruled that magnifying glasses were "stronger in their magnifying intensity than the ordinary magnifying spectacles which jurymen and the general public use in the affairs of every day life," but "in the absence of proof that the glasses might in some measure unfairly prejudice the defendant's case we are unable to perceive how their admission injured him." Id. at 312-13.
As in this case, in United States v. Young,
814 F.2d 392,
395-96 (7th Cir.), cert. denied,
484 U.S. 838 (1987), the jury
asked the foreman for a magnifying glass during its
deliberations. The Seventh Circuit found no merit in the
defendant's challenge that the district court had complied
incorrectly with the jury's request for a magnifying glass
without providing the jury a cautionary instruction as to its
use. In so ruling, the Seventh Circuit found that the magnifying
glass in question was used for exhibits already in the record.
Ibid. Although it is unclear from the record the type of exhibit
the Young jury viewed with the magnifying glass, the intent of
such use is clear. The Young court found that "by providing the
jury with a magnifying glass, the district court permitted the
jury to make a more critical examination of the exhibits
introduced at trial." Ibid. In so doing, the Young court
adopted reasoning from the Ninth Circuit: "We are unable to see
how the use of a magnifying glass to view photographs differs
from the use of corrective eyeglasses by jurors." Ibid. (quoting
United States v. Brewer,
783 F.2d 841, 843 (1986)). The use of a
magnifying glass by jurors for exhibits properly introduced at
trial is within the trial court's discretion. Ibid.; accord
Bradfield v. Ringsby Truck Lines, Inc.,
546 P.2d 500, 504 (Colo.
Ct. App. 1976) (finding that jury's use of magnifying glass to
examine photographs was "the mere taking of a more critical
examination of an exhibit," not introduction of new evidence).
Likewise, the Tenth Circuit has found that a magnifying
glass brought into deliberations by a juror and used by the jury
to view a weld that caused the injury at issue was not
prejudicial to the defendant. Western Spring Serv. Co. v.
Andrew,
229 F.2d 413, 419 (1956). In so ruling, the Western
Spring court also analogized the use of magnifying glasses to the
use of eyeglasses. The court found that the use of a magnifying
glass constituted no more misconduct on the juror's part "than it
would have been misconduct for him to exchange his regular
glasses for more powerful glasses to enable him to better see or
more accurately determine the nature of the weld or of the
break." Id. at 419. In also ruling that the juror's sharing of
the magnifying glasses was not misconduct, the court in Western
Spring found that it was like loaning regular glasses or raising
"a shade to admit more light to enable the jurors to better
examine the exhibit in question." Ibid.
In State v. Everson, the Supreme Court of Washington upheld
the trial court's decision that had allowed the jury to use a
magnifying glass to examine a walking stick belonging to the
victim in a hit-and-run case.
7 P.2d 603 (l932). Quoting an
excerpt from
16 R.C.L. 299, that court stated: "If the effect of
such an experiment is to put the jury in possession of evidence
which should have been but was not offered at the trial, it is
not permissible; but, if the experiment involves merely a more
critical examination of an exhibit than had been made of it in
the court, there is no ground for objection." Ibid. Analogizing
to the use of eyeglasses by jurors, the court found there was no
proper ground for objection to the magnifying glass because "the
jury merely more critically examined it by the aid of a
magnifying glass. This did not put them in possession of
material facts which were not already in evidence." Id. at 604.
Likewise, the Supreme Court of Oklahoma has found that
jurors' use of a magnifying glass with exhibits of damage caused
by blasting operations was an acceptable practice and denied a
motion for a new trial based on such use. Falletti v. Brown,
481 P.2d 744 (l97l). The Falletti court reasoned that courts
"generally treat such use only as assistance to [the] natural
power of eyes of jurors to see, and not as additional evidence in
the case." Id. at 745. In allowing the use of a magnifying
glass, the Falletti court cited to the Michigan Supreme Court,
which had reasoned in an early case that "there was no more
mystery in a magnifying glass than in ordinary eyeglasses in
daily use" and to the Iowa Supreme Court, which had found in an
early case that "it would be a harsh practice not to allow
[magnifying] glasses to be handed to a juror who had lost his
spectacles." Ibid. (citing Barker v. Perry, 25 N.W. 100 (Iowa
1885); Morse v. Blanchard,
75 N.W. 93 (Mich. 1898)).
Another case decided by our brethren in Missouri, Layton v.
Palmer,
309 S.W.2d 561, 568 (1958), is quite similar to the
present case because that court admitted an exhibit of
photographs for the use of witnesses and a controversy developed
between counsel and the witness about what could be seen in those
photos. During cross-examination, counsel stated that he wanted
the jury to have access to a particular photo, to which the Court
responded, "if there is a magnifying glass here the jury will be
permitted to use that." Ibid. As in Young, supra, opposing
counsel did not object to the jury's use of the magnifying glass
at trial. Rather, such use was only objected to on appeal.
Furthermore, the Missouri Supreme Court found that the trial
court had not abused its discretion in allowing the jury to use
the magnifying glass, and cited an "established" rule of 1958:
it is not improper for the jury to use a magnifying glass or
mechanical device to aid their investigation of handwritings or
exhibits that have been admitted into evidence. Ibid. (quoting
89 C.J.S. Trial § 470 (1955)). In addition to the Layton court,
many other state and federal jurisdictions have adopted that
rule, and various treatises and annotations have cited it. In re
Thomas Estate,
101 P. 798, 802 (Cal. 1909); State v. Wallace,
78 Conn. 677 (1906); Alexander v. Blackburn,
98 N.E. 711 (Ind.
1912); Barker, supra, 25 N.W. at 100; Evans v. Commonwealth,
19 S.W.2d 1091 (Ky. 1929); Morse, supra, 75 N.W. at 93; Kannon v.
Galloway,
61 Tenn. 230 (1872); Jones v. State,
257 S.E.2d 370
(Ga. Ct. App. 1979); Grand Lodge, A.O.U.W. v. Young,
123 IIl.
App. 628 (App. Ct. 1906); J.H. Robinson Truck Lines, 204 S.W.
2d
at 662 (Tex. Civ. App. 1947); see Sanchez v. Billings,
481 S.W 2d
911, 916 (Tex. Civ. App. 1972); see also George C. Christopher &
Son, Inc. v. Kansas Paint & Color Co.,
523 P.2d 709 (Kan. 1974)
(declining to find jury's disassembling of exhibit was improper
and reasoning that "[i]f it had been a written document in fine
print, we do not suppose that it would have been improper for the
jury to use a magnifying glass"); Annotation, Tests or
Experiments in Jury Room,
95 A.L.R.2d 378 (1964 & Supp. 1994);
Caroll J. Miller, Annotation, Propriety of Juror's Tests or
Experiments in Jury Room, 3l A.L.R.4th 583 (l994); 89 C.J.S.
Trial § 470 (1994); 35B C.J.S. Federal Civil Procedure § l07l
(l994).
The Appellate Division's failure to follow that well
established rule misses the crucial point -- that a jury may use
a magnifying glass to see or understand better a properly
admitted exhibit -- such as the Photograph at issue. Instead the
Appellate Division relied for support of its position on State v.
Anderson,
251 N.J. Super. 327, 332 (App. Div. 1991), and
Palestroni v. Jacobs,
10 N.J. Super. 266, 271 (App. Div. 1950).
An examination of those cases, the facts of which are quite
different from this case, discloses that they in fact support the
position that presenting the jury with a magnifying glass does
not constitute supplementing the evidence. The holding of
Anderson, supra, is that a supplemental piece of evidence that is
found by the jury during deliberations is new and unadmitted
evidence. 251 N.J. Super. at 332. In that trial for the receipt
of stolen property, the Anderson court held that a jewelry tag
discovered by the jury in a stolen bag could not be considered
during deliberations because it had not been admitted properly
during trial; rather, it was seen for the first time during
deliberations. Ibid. The court's finding of inadmissibility of
that tag is understandable in light of what the jurors might have
assumed when they discovered the tag in a sports bag, which the
victims claimed had been taken in a burglary, and in light of the
defense counsel's inability to rebut such assumptions during
deliberations. Id. at 329, 332. Because the defense counsel in
Anderson did not have that opportunity, the court held, "A party
who has unsuccessfully objected to the admission of evidence has
the opportunity to mitigate whatever prejudicial impact the
evidence may have had by presenting rebutting evidence and
commenting upon the evidence in closing argument." Id. at 332.
In this case, defense counsel did exactly what the Anderson
court stated would be permissible: referred to the magnifying
glass throughout trial and in his summation. Plaintiff had ample
opportunity throughout the trial to view the Photograph with or
without the magnifying glass. Indeed, Anderson supports the
finding that the magnifying glass -- referred to repeatedly at
trial and requested by the jury in its deliberations to view
properly admitted evidence -- is not the same as a new piece of
evidence first found by the jury during its deliberations.
Likewise, the holding of Palestroni, supra, offers no
support for plaintiff. There, the trial court allowed the jurors
to have a dictionary during its deliberations without the
knowledge of the defense counsel. 10 N.J. Super. at 269. In that
construction contract case, the jury sought the use of a
dictionary to understand the definition of the word "wainscot" to
decide claims of extra work and materials as well as incomplete
performance. Id. at 270. Reversing the trial court's denial of
a new trial, the Appellate Division focused on defense counsel's
inability to rebut any inferences or "challenge the completeness
of the definition given in the dictionary used." Id. at 272.
The import of Palestroni is that the inherent nature of a
dictionary is what makes it supplementary in nature to the legal
evidence admitted during trial. Indeed, the trial court
explicitly told plaintiff's counsel that a magnifying glass could
not be equated to a dictionary: "it's not like a dictionary
where you can look through and find definitions for this, and
definitions for that, . . . . This is simply a tool for them to
look at the photographs . . . it's not a distortion or changing
the photograph." In addition, it was the time at which the
dictionary was first raised and requested -- after the completion
of closing arguments and during jury deliberations -- and the
manner in which the trial court allowed the jury to use the
dictionary -- without consulting counsel -- that strongly
influenced the Appellate Division's reversal in Palestroni. See
State v. Vaszorich,
13 N.J. 99, 114 (1953) (finding that
circumstances of Palestroni were not analogous because "irregular
matter came to light at a time when all parties and the trial
court had a full and ample opportunity to take steps to avoid any
improper influence" on the Vaszorich jurors). As in Vaszorich,
supra, such timing is not at issue in the case before us.
The use of the magnifying glass by the jury did not
constitute new evidence in this case. Rather, the magnifying
glass was an aid referred to throughout the trial. Defendant
proffered the magnifying glass on the first day of trial during
plaintiff's cross-examination. Because there was no objection
from plaintiff's counsel, the trial judge did not rule on its
admission at that point. All parties, their counsel, and the
jury knew about the possible use of the magnifying glass at that
early stage of the trial. Moreover, during the course of the
trial, the evidence to be used with the magnifying glass was
testified to by plaintiff, defendants, and an expert witness.
The trial judge had the discretion and properly allowed the jury
to use the magnifying glass. The magnifying glass only
highlighted or illustrated evidence properly admitted or
testimony of witnesses properly allowed during the trial, and
plaintiff had adequate time to rebut any negative inferences.
The magnifying glass did not constitute new evidence.
Nor do we find that a conventional magnifying glass is acceptable for juror use only after an expert has explained or used it at trial. The governing rule in our jurisdiction is that expert testimony is necessary for subject matter that is "beyond the ken of the average juror" or if it enhances the jury's understanding of the evidence. See State v. Charles Marshall Berry, N.J. (slip op. at 15); see also N.J.R.E. 702; Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 702 (1994-95) (stating "primary justification for permitting expert testimony in the first place is the relative helplessness of the average juror in dealing with a subject which is not a matter of common knowledge"). Because the issue is not usually whether expert testimony is needed, but rather what type of expert is needed or who qualifies as an expert, there is not much case law on this point. E.g., Landrigan v. Celotex Corp., 127 N.J. 404, 412-14 (1992). However,
[e]xpert testimony will not be admissible unless it assists the average juror to understand the evidence. Thus, such testimony should not be permitted unless it relates to a subject matter which is so distinctively related to some science, profession, business or occupation as to be "beyond the ken of the average laymen."
[Nesmith v. Walsh Trucking Co., 247 N.J. Super. 360, 369 (App. Div. 1989) (citations omitted), rev'd on other grounds, 123 N.J. 547, 548 (1991).]
While it is difficult to describe the parameters of knowledge possessed by the average layman, several cases provide examples
of when expert testimony is not needed. See State v. Harvey,
121 N.J. 407, 427 (1990) (finding that neither comparison between
shoe print and proffered shoe, nor proposition that "shorter
people tend to have smaller feet" required expert testimony);
State v. Odom,
116 N.J. 65, 78 (1989) (citing common notion that
average person or juror can decide whether person was
intoxicated) (citation omitted). Thus, Harvey, supra, and Odom,
supra, combined with the rules and presumptions cited in supra,
at (slip op. at 9-18) support our holding: an instrument of
"common knowledge," like an ordinary magnifying glass, generally
requires no expert testimony. Conceivably, a circumstance could
arise where providing the jury with a magnifying glass, perhaps a
special magnifying glass, would be the equivalent of a jury's
acquiring new evidence not introduced at trial. But such
circumstances are rare and certainly were not present in this
case.
The Appellate Division puts a misplaced emphasis on the
inadmissibility of the magnifying glass without expert testimony.
The focus should first be whether such testimony is needed or
whether common knowledge suffices for use of the instrument in
issue. Failure to address that preliminary question would allow
the use of experts for the most mundane of human events, which
jurors easily understand without expert testimony. The fact that
a magnifying glass is no longer used daily by the average person
does not make it a highly complex scientific instrument. Rather,
it might be the complexity of our society and our rules of
evidence that cloud the issue and suggest that a juror must
listen to an expert's opinion prior to the juror's use of a
magnifying glass. Thus, we hold that expert testimony was not
necessary for the jury to use the flat magnifying glass during
its deliberations.
Plaintiff also contends that the trial judge committed error by giving the magnifying glass to the jury for its deliberations. Our review is under the "harmless error" standard of Rule 2:10-2. Under that rule, a reviewing court should reverse only if a trial error is clearly capable of producing an unjust result. Campo v. Tama, 133 N.J. 123, 132 (1993). That standard demands that the reviewing court determine whether an error at issue was so grave that it caused the jury to be misled, confused, or inadequately informed. See, e.g., Feldman v. Lederle Labs, 132 N.J. 339, 345 (1993). Although the magnifying glass was identified and discussed as early as the first day of trial, the trial judge could have forced the parties and jury to view the Photograph with the magnifying glass during the trial. Then, plaintiff's counsel might have been inclined to rebut any negative inferences that might have arisen from such use. However, the trial judge's failure to direct such viewing was not error "clearly capable of producing an unjust result." R. 2:10-2.
As discussed, supra, at (slip op. at 4), the trial judge
allowed reference to the magnifying glass at an early stage of
the trial. Moreover, during the course of the trial, the
evidence to be examined with the magnifying glass was testified
to by plaintiff, defendants, and an expert witness. In addition,
although error, the trial judge later marked the magnifying glass
and admitted it into evidence while overruling an objection from
plaintiff. In overruling plaintiff, the trial judge defined the
magnifying glass as "a tool for [the jury] to look at the
photographs . . . . it's not a distortion or changing the
photograph." So, after admitting the magnifying glass as
evidence, the trial judge ruled that it was an admissible object
that highlighted or illustrated the testimony of witnesses,
rather than prejudiced plaintiff's case. Although it might have
been outside the trial judge's discretion to rule in such a
manner post-trial, we are satisfied that that ruling did not
prejudice plaintiff. Thus, we reverse the Appellate Division
because the magnifying glass merely highlighted or illustrated
the testimony of witnesses as well as admissible evidence, and
such use did not create sufficient prejudice to justify granting
a new trial to plaintiff under Rule 2:10-1.
The judgment of the Appellate Division is reversed, and the
judgment of the trial court is reinstated.
Chief Justice Wilentz and Justices Handler, Pollock, O'Hern, Stein, and Coleman join in this opinion.
NO. A-80 SEPTEMBER TERM 1994
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
CHARLES BOLAND,
Plaintiff-Respondent,
v.
PETER DOLAN and JUDY DOLAN,
Defendants-Appellants.
DECIDED May 17, 1995
Chief Justice Wilentz PRESIDING
OPINION BY Justice Garibaldi
CONCURRING OPINION BY
DISSENTING OPINION BY