Trial Judges Have Discretion to Replay Counsel’s Summations Upon a Jury’s Request

State v. Brown, ___ N.J. Super. ___ (App. Div. 2018). Deliberating jurors often request that trial testimony be read back to them. As Judge Sabatino noted n his opinion in this case today, the Supreme Court has held that “absent some unusual circumstance, those requests should be granted.” But what is to be done when a jury requests that counsel’s summation, which is not evidence, be read back? That was the issue in the published portion of Judge Sabatino’s decision in this drug case, where the jury asked to hear defense counsel’s summation again. “The propriety of granting such a playback request from jurors has not been addressed before in any published New Jersey opinion, although the issue has arisen in case law from a few other jurisdictions.”

Judge Sabatino ruled that when a jury requests a readback of counsel’s summation, trial judges have discretion to grant that request. But the summations of both sides must be presented. The panel found persuasive cases from California and New York that allowed readbacks of summations in the trial court’s discretion.

In addition to its legal analysis, Judge Sabatino’s opinion contains much practical wisdom about the importance of summations in “providing a coherent analysis of the evidence” available nowhere else. Among other things, Judge Sabatino rightly noted that “judges who have reserved decision in a case sometimes play back the recorded arguments of counsel. They do so in order to refresh or clarify their recollections before issuing a ruling. Jurors understandably may want a similar opportunity before rendering a verdict,” since jurors “may have difficulty remembering exactly what counsel said in summations about a hotly disputed aspect of the evidence” or they “may not have heard the words of counsel in summation clearly if counsel spoke softly or mumbled, or they might not have understood them.”

In this particular case, the trial judge denied the request for the readback, since summations are not evidence. Judge Sabatino found no error in that ruling, due to the particular circumstances involved. The case was remanded, however, on other issues not addressed in the published portion of the opinion.

Another trial judge in the same vicinage (Hudson County) had recently allowed a summation readback. At least for now, the Appellate Division’s decision today has resolved the question of whether such readbacks are permitted.