EZ Pass records admissible at trial

An unpublished Appellate decision concerning a domestic violence action may have ramifications in the defense of trucking claims. In S.S.S. v. M.A.G., 2010 WL 4007600 (N.J. Super A.D.), at the hearing for a final restraining order, the plaintiff testified that on October 4, 2009, the defendant called the plaintiff to meet with him the next day. On October 5, at 9:00 a.m. the plaintiff left her classroom at Rutgers-Newark and entered defendant’s car. Defendant then drove the plaintiff to a motel. At the motel, plaintiff alleged that the defendant pushed the plaintiff, grabbed her arm and shoved her. According to the plaintiff, the assault occurred in Jersey City at 9:30 a.m. and she returned to school at 10:00 a.m.

The defendant, appearing pro se, testified that the plaintiff’s testimony was “all a lie.” He offered a letter from his employer stating that the company’s records show the defendant arrived at work at 8:35 a.m. and left at 5:00 p.m. The judge refused to accept the letter, ruling it was hearsay.

The defendant also offered into evidence his EZ Pass records showing he crossed the Bayonne Bridge into Brooklyn at 8:16 a.m. The defendant argued that it would be impossible for him to cross the bridge at that time, arrive at work at 8:35 a.m. and be able to arrive at Rutgers-Newark to pick the plaintiff up at 9:00 a.m. The judge refused to accept the EZ Pass records.

The Appellate Division noted that:

N.J.R.E. 803(c) (6) provides that a business record is admissible as an exception to the hearsay rule, provided that the writing was ‘made at or near the time of observation,’ was prepared in the regular course of business and it was the ‘regular practice of that business’ to keep such a record. Business records maintained in a computer system are not treated differently from hard copies made because they are stored electronically. Although no reported decision has ever considered whether EZ Pass records qualify as a business record under N.J.R.E. 803(c) (6), such records are not qualitatively different from the many records that have been so admitted.

How this decision will impact the defense of trucking claims remains to be developed. Potential uses for EZ Pass records at trial include: showing compliance or a violation of the hours of service regulations; demonstrating a “habit” of speeding or adherence to the speed limit; or allowing jurors to figure out average speeds a trucker drives (e.g. , if the driver enters the toll plaza at 2 p.m., the accident occurred at 2:30 p.m. and the accident scene was 35 miles from the toll plaza a juror will “do the math” and find that the driver was averaging 70 mph).

—Thomas Reardon III, Esq.

Reardon Anderson represents the interests of trucking companies, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://www.reardonanderson.com to learn more about our firm.

TO GOOGLE DURING JURY SELECTION OR NOT TO GOOGLE DURING JURY SELECTION – THAT IS THE QUESTION

Recently, the New Jersey Appellate Division ruled that during jury selection, an attorney may utilize his laptop through a wireless connection to Google the names of potential jurors. In Carino v. Muenzen, 210 W.L. 3448071 (App. Div. 2010), which was a medical malpractice case, plaintiff’s counsel was using his laptop to Google the names of potential jurors during voir dire. During voir dire, the Judge asked the plaintiff’s counsel if he was utilizing his laptop to Google the names of potential jurors. Plaintiff’s counsel advised the court that he was indeed doing so. The trial Judge ordered counsel to discontinue Googling the names of the potential jurors as the Judge felt it gave plaintiff’s counsel an unfair advantage over defense counsel who did not have a laptop present.

On appeal, one of the issues addressed by the Appellate Division was whether or not the trial Judge had the discretion to order plaintiff’s counsel to stop using his computer to Google the names of potential jurors. The Appellate Division noted that New Jersey state courts provide free wireless internet access for anyone with a laptop. As such, it did not accept the trial Judge’s finding that plaintiff’s counsel had an unfair advantage over defense counsel in utilizing that free public wireless internet access. The Appellate Division wrote that as plaintiff’s counsel “had the foresight to bring his laptop computer to work, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of fairness or maintaining a level playing field. The playing field was in fact already level because internet access was open to both counsel, even if only one of them chose to utilize it.”

This decision holds that during jury selection attorneys may utilize free public wireless internet access during that process without first giving notice to the court. Accordingly, it is important for counsel to have a laptop and the ability to utilize same (we at Reardon Anderson do).

— Erik Anderson, Esq.

Reardon Anderson represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://www.reardonanderson.com to learn more about our firm.

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