Background
The parties in this Gloucester County civil case had a long-running boundary and access dispute involving a Monroe Township property purchased by defendant Kellie Krause and her husband in 2004. An access way on the property had been used by plaintiffs Ryan and Rebecca Roberts to reach a garage they built on their own land. After civil litigation over a fence Krause erected along the access way — litigation Krause won — the relationship deteriorated further. In August 2022, plaintiffs launched a public online campaign including a Change.org petition addressed to town officials, social media posts featuring photos of Krause’s home, and allegations that she had failed to pay property taxes and had landlocked the plaintiffs. Lawn signs saying “Save the access way” appeared around town, and Krause felt her family was being harassed.
On August 17 and 29, 2022, Krause visited the local police department to report the online campaign. Those conversations were captured on the responding officer’s body worn camera (BWC). On November 15, 2022, Krause filed criminal harassment complaints against the Roberts under N.J.S.A. 2C:33-4.1(a)(1). The complaints were dismissed by the municipal prosecutor before trial in May 2023. In October 2023, the Roberts filed a civil malicious prosecution complaint, alleging Krause had filed the criminal complaints without probable cause and with malice. The case proceeded to a two-day jury trial in April 2025.
During trial, plaintiffs’ counsel called Krause as an adverse witness and used selected snippets of the August 17, 2022 BWC recording to refresh her recollection. Defendant’s counsel objected under N.J.R.E. 106, arguing that playing only selected portions was improper, but the court overruled the objection while allowing defense counsel to present additional footage during cross-examination. Neither party formally moved the BWC recording into evidence as an exhibit. During deliberations, the jury sent a note asking to watch the full BWC footage again. Outside the presence of the jury, the court pointed out that only snippets had been shown and that the video had not been admitted as evidence. Plaintiffs’ counsel responded: “True. True. It was testimony.” The court denied the replay request and instructed the jury to rely on its combined recollection. The jury returned a defense verdict, finding plaintiffs had not proven the lack of reasonable and probable cause for the prosecution. The Roberts appealed.
The Court’s Holding
The Appellate Division affirmed. As a threshold matter, the panel held that plaintiffs had not preserved the evidentiary issue for appeal under Rule 1:7-2, which requires a party to make known to the court both the specific action it desires the court to take and the grounds for its objection. The record showed that plaintiffs’ counsel agreed with the court’s characterization that the video had not been admitted, described it as “testimony,” and acquiesced to the court’s proposed response to the jury note without registering any formal objection. Under those circumstances, the panel concluded there was no preserved objection and reviewed only for plain error under Rule 2:10-2 — the high standard requiring that the error be clearly capable of producing an unjust result.
On the merits, the court found no error, let alone plain error. The response to a jury’s request for readback of testimony or replay of a video is vested in the discretion of the trial judge. Where a video has been admitted into evidence, the jury may generally access it during deliberations. Here, however, the BWC footage was never admitted. It was used solely to refresh the witness’s recollection — a recognized evidentiary technique that does not transform the underlying recording into substantive evidence in the case. Because only snippets had been played and the full recording was not in evidence at all, the trial court acted within its discretion in refusing to allow replay during deliberations and properly instructed the jury accordingly. Plaintiffs’ reliance on State v. Knight and State v. Michaels was rejected, as in both cases the video materials at issue had been formally admitted into evidence — a critical distinction absent here.
Key Takeaways
- A video recording used solely to refresh a witness’s recollection at trial is not admitted into evidence and may not be replayed for the jury during deliberations; the trial court has full discretion to deny such requests, and the jury must rely on its combined recollection of the footage shown at trial.
- To preserve an evidentiary ruling for appeal under Rule 1:7-2, counsel must place a specific objection and its grounds on the record at the time of the ruling; agreeing with the court’s characterization of the evidence and acquiescing to the court’s response to a jury note forfeits the issue and triggers the demanding plain error standard on appeal.
- In civil cases involving police encounters, practitioners who want BWC footage available to the jury during deliberations must formally move it into evidence as an exhibit at trial — a deliberate strategic decision that must be made before the case is submitted, not in response to a jury note during deliberations.
Why It Matters
Roberts v. Krause offers a practical lesson in trial strategy and evidence preservation for New Jersey civil litigators. The increasing use of body worn camera footage in both criminal and civil proceedings creates recurring questions about how that footage is characterized and what the jury may access during deliberations. Counsel who play video clips to refresh a witness’s recollection — rather than formally admitting the footage as substantive evidence — must understand that those clips do not become part of the evidentiary record available to the jury. If the ability to review footage during deliberations matters to the client’s case, the video must be formally admitted as an exhibit through the appropriate witness or stipulation.
The failure to object in the moment also illustrates the real cost of procedural acquiescence. Once plaintiffs’ counsel agreed that the video had been used only as testimony and did not object to the trial court’s proposed response to the jury note, the issue was effectively lost. Plain error is an exceptionally demanding standard in New Jersey appellate practice, and courts will not find it where the alleged error is the trial court’s exercise of well-settled discretion in managing jury deliberation requests. Civil practitioners handling cases involving video evidence of any kind — BWC footage, surveillance recordings, dashcam video — should treat the formal admission decision as a critical trial planning issue with lasting consequences for any appeal.