The New Jersey Supreme Court recently heard oral arguments regarding a novel criminal law issues. The question before the justices in two consolidated cases, State of New Jersey v. Fuquan K. Knight and State of New Jersey v. Shaquan K. Knight, is whether it is permissible to replay video recordings multiple times in slow motion, and with intermittent pauses, at a jury’s request?
Facts of the Case
Fuquan K. Knight and Shaquan K. Knight were found guilty by a jury of armed robbery and other offenses. The State’s proofs showed that defendants, along with their father Kyler Knight, robbed the victim behind a deli, threatening him with a knife and at gunpoint. The victim identified defendants to the police as two of the three robbers, confirming his identification of them at a pretrial hearing pursuant to United States v. Wade, 388 U.S. 218 (1967).
The victim died of unrelated causes before trial, but his earlier testimony at the Wade hearing and his post-robbery 9-1-1 call to the police were presented to the jury over defendants’ objection. Other evidence substantiated defendants’ guilt, including, among other things, surveillance videos that recorded events inside and outside the deli, as well as incriminating items seized by police from their residence. Defendants did not call witnesses or testify at trial, but disputed the victim’s identification and their involvement in the robbery.
Defendants raised substantially overlapping issues on appeal, with both arguing that the trial court erred by allowing the jury to observe multiple times, in slow motion and with pauses, an approximately six-second segment of a surveillance video. That video, which was filmed through a glass door in the rear of the deli, shows the victim quickly being escorted by the three culprits outside the building. One culprit appears to be pointing a firearm at the victim, and another appears to be pushing defendant forward. The State presented the video as part of its case-in-chief without objection, and then played it again several times in closing argument without objection, once in slow motion.
During both days of their deliberations, the jurors requested the video to be replayed several more times, in slow motion and at other varying speeds and with intermittent pauses. The trial judge permitted those jury playbacks under her supervision in the courtroom, over defendants’ objection. Defendants contend they were unduly prejudiced by these video playbacks, citing research indicating that slow-motion presentations can increase a viewer’s perception or inferences of intentional conduct.
Appellate Division’s Decision
The Appellate Division found that there was no reversible error concerning the video playbacks. In reaching its decision, the Appellate Division acknowledged that there are no published New Jersey opinions on the issue.
Relying on decisions from outside the state, the Appellate Division held that—subject to offsetting concerns of undue prejudice—surveillance video footage may be presented to jurors in slow motion or at other varying speeds, or with intermittent pauses, if the trial court in its discretion “reasonably finds those modes of presentation would assist the jurors’ understanding of the pertinent events and help them resolve disputed factual issues.” The appeals court further held that, subject to offsetting concerns of undue prejudice, trial courts in their discretion may grant a jury’s requests during deliberations to replay the videos in such modes one or more times, provided that the playbacks occur in open court under the judge’s supervision and in the presence of counsel.
The Appellate Division also offered several non-exclusive factors to guide the court when considering whether to allow videos to be shown in varying speeds or with intermittent pauses during the trial and summations, and on a jury’s request during deliberations. Judge Jack M. Sabatino wrote:
In exercising their discretion in admitting into evidence or allowing the replay of surveillance video recordings, trial courts should consider, among other things, (a) whether the video has a soundtrack that contains recorded statements of the filmed persons; (b) whether the video is difficult to discern when played only at normal speed; (c) whether the video can assist in resolving disputed issues of identification; (d) whether the video bears upon disputed issues of intentionality; (e) whether the video contains content that is particularly disturbing or inflammatory to watch repeatedly in slow motion.
The appeals court further recommended that the Model Criminal Jury Charge Committee consider crafting an instruction to guide jurors when surveillance videos are presented in such modes. “Such a model charge might also usefully draw to the jurors’ attention the possibility that viewing such video evidence in slow motion might subconsciously increase their perceptions of an actor’s intentionality,” Judge Sabatino explained. “The content and contours of charge, if one is adopted, are best developed by the committee, with the benefit of additional study and the consideration of practices in other jurisdictions.”
Issues Before the NJ Supreme Court
The New Jersey Supreme Court granted certification on May 10, 2024. It agreed to consider the following question: “Was it permissible to replay video recordings multiple times in slow motion, and with intermittent pauses, at the jury’s request? “ The justices heard oral arguments on October 7, 2024. Please check back for updates.