From Judge Vernoia, a Discussion of “Opening the Door,” The Rule of Completeness, and Lay Opinion Testimony

Grewal v. Greda, 463 N.J. Super. 489 (App. Div. 2020). This far too belated post is about a very informative opinion by Judge Vernoia last week. The case was one brought by the New Jersey Division on Civil Rights (hence the appearance of Attorney General Grewal as the named plaintiff) against defendants, Elizabeth landlords who allegedly discriminated unlawfully against a Muslim would-be tenant, Fatma Farghaly, by refusing to rent an apartment to her. A jury ruled in favor of defendants, but the Appellate Division reversed due to evidence errors, an abuse of discretion, and remanded for a new trial.

The first evidence issue involved the idea of “opening the door” to cross-examination. On direct examination, Farghaly was asked whether she had considered “letting go” of her discrimination claim. She testified that she had considered that because her religion taught her to “forgive and forget.” But she chose to proceed, she said, so that others would not have to go through what she went through.

Defendants seized on Farghaly’s reference to a Muslim teaching of forgiveness to cross-examine her about a passage in the Quran regarding “circumstances that can compel a Muslim to tell a lie,” about whether non-Muslims were “infidels,” and about the fact that her accountant and physician were, like her, Muslims. Counsel for the Division on Civil Rights objected, but the trial judge ruled that Farghaly had “opened the door” to questions about Muslims and the Muslim religion because Farghaly had mentioned on direct that Islam calls for forgiveness. Judge Vernoia rejected that view.

The “opening the door” doctrine, he said “has its limitations.” It is used “only to prevent prejudice,” not for the “injection of prejudice.” Here, the cross-examination was designed to inject prejudice against Farghaly and a friend of hers, also a Muslim, who had accompanied her on her visit to the apartment in question.

The cross-examination violated Evidence Rules 610 (“e]vidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’s credibility is impaired or enhanced”) and 512 (creating a privilege not disclose her “religious belief[s] unless [her] adherence to such … [beliefs] [was] material to an issue in the action other than that of [her] credibility as a witness”). Additionally, and apart from those Evidence Rules, the testimony on cross was more prejudicial than probative, thus violating Evidence Rule 403 as well.

At most, Farghaly’s direct testimony might have opened the door to “limited questioning about the nature and source of her religious beliefs about forgiveness.” But the cross-examination here went to issues having nothing to do with forgiveness in Islam or any other direct testimony by Farghaly.

Judge Vernoia did not, however, reject the concept of “opening the door.” Later in the opinion, he rebuffed another claim of error by the Division. That involved direct testimony by Farghaly about her income. The defense then cross-examined about her income and her tax returns. The trial court overruled the Division’s objection to that, and the Appellate Division upheld that ruling as not abusive of discretion. The income issue was not “extraneous” (though Judge Vernoia found “unclear” the purpose of asking Farghaly about her income), and the cross-examination went to both Farghaly’s credibility and the substance of her testimony about her income.

The second evidence issue related to the “doctrine of completeness” that is embodied in Evidence Rule 106. That Rule states that when one party introduces a recorded statement in whole or in part, “an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which in fairness ought to be considered contemporaneously.”

Here, the Division sought to introduce alleged anti-Muslim statements made by one of the defendants during a recorded interview with media organization. The argument was that the interview statements showed anti-Muslim bias and were inconsistent with defendant’s trial testimony. The recording sought to be introduced, however, showed only that part of the interview that was actually aired. The Division subpoenaed the entire interview but was told that the unaired portion had not been preserved.

The defense successfully objected to the admission of the available part of the interview. But Judge Vernoia held that since the balance of the interview was deleted inadvertently, so that there was “no additional recording with which to provide the complete statement,” neither Evidence Rule 106 nor the doctrine of completeness barred the admission of the available portion of the interview. He cited State v. Nantambu, 221 N.J. 390 (2015), for that idea. The panel remanded for an evaluation of the propriety of admitting the interview under the principle of Nantambu.

Judge Vernoia next focused on the exclusion of certain testimony by “testers” that the Division sent out to see whether defendants would not rent to persons who appeared to be Muslims or would rent the same apartment to apparent non-Muslims. One tester stated that when she first approached one of the defendants, he “stared” at her. Another tester said that it was “odd” that the apartment building’s parking lot was empty when he arrived, that defendant’s “tone and demeanor” were “unwelcoming,” and that the testers’ experience had been “appalling.” The trial judge barred all those statements because they were opinions when the judge just “want[ed] facts.”

Judge Vernoia discussed the “lay opinion testimony” principle of Evidence Rule 701. That Rule allows lay witness to offer opinion or inference testimony” if it is (a) rationally based on the witness’s perception; and (b) will assist in understanding the witness’s testimony or determining a fact in issue.” The trial court’s demand for “facts” only violated Rule 701’s approval of proper lay opinion testimony.

The Appellate Division found it an abuse of discretion to have excluded the testimony that defendant “stared” and exhibited an “unwelcoming” tone and demeanor. That testimony “would have assisted the jury” in deciding the issues of the case. The testimony that the empty parking lot was “odd” and that the experience of the testers was “appalling,” however, was properly barred. Neither of those characterizations would have aided the jury.

Finally, the Appellate Division found no error in the fact that one question on jury voir dire was, at the defense’s request, whether jurors felt that Muslims were a discriminated against class and, if so (but only if so) why. Judge Vernoia found that issue unworthy of discussion, citing Rule 2:11-3(e)(1)(e), the “that’s ridiculous” rule. The Division had not objected or sought to have those answering in the negative explain their answers. But the panel said that if the same voir dire question were asked on remand, the Division could ask that all prospective jurors explain their answers, whatever they were.

It’s not often that a published opinion deals with so many evidence rues and nitty-gritty trial issues. Both trial and appellate counsel will want to keep Judge Vernoia’s opinion at hand for matters that go, or have gone, to trial.