CAROL A. BARRETT vs. ROBERT D. LEARY & another. [Note 1]

SMITH, J. On November 7, 1986, the plaintiff, Carol Barrett, was involved in a three-vehicle accident. The plaintiff brought an action against the defendants, seeking damages for a herniated disc which she claimed she suffered as a result of the accident.

The matter came to trial before a Superior Court judge sitting with a jury. The plaintiff and the two defendants testified about the liability aspect of the plaintiff's complaint. There was no live testimony from the medical experts. Instead, videotaped depositions of medical experts for each side were marked and introduced in evidence at trial

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Mass.R.Civ.P. 30A(a), 382 Mass. 824 (1981), & (m)(5), as amended, 406 Mass. 1405 (1990).

Just after the commencement of the playing of the first videotaped deposition (the plaintiff's medical expert), the judge left the courtroom without comment or explanation to counsel or to the jury. The court reporter also left. At the conclusion of the first deposition, the lawyers met with the judge in his lobby and requested that he return to the bench; he refused. The other videotaped deposition was then shown to the jury without the judge or court reporter present. [Note 2]

At the conclusion of the trial, the judge submitted special questions to the jury. In response to the questions, the jury found both defendants negligent. The jury, however, failed to find any causal relationship between the defendants' negligence and the plaintiff's alleged injury.

On appeal, the plaintiff claims, among other things, that the trial judge committed prejudicial error when he absented himself from the courtroom while the videotaped depositions were being played. [Note 3] We agree and order a new trial.

Two years before the trial of this case, the Supreme Judicial Court decided Commonwealth v. Bergstrom, 402 Mass. 534

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(1988). In Bergstrom, the court was called upon to interpret G. L. c. 278, Section 16D (1986 ed.), which, under certain circumstances, allowed a child witness or victim of certain sexual crimes to testify by electronic means outside the presence of the defendant. Id. at 535-538. The statute also permitted the judge to be absent physically either from the courtroom or from the place where the testimony was given. [Note 4] In its analysis, the court commented on that aspect of the statute.

The court noted that "`[i]n general, evidence in a jury trial can be given only in the presence of the judge, whose duty it is to be present and to be the directing mind over whatever goes on . . . .'" Id. at 551, quoting from Commonwealth v. Dascalakis, 246 Mass. 12, 30 (1923). When shown to a jury, a videotape deposition is evidence. The fact that the trial judge had prescreened the deposition and had made rulings on objections made at the time the deposition was recorded did not warrant his absence from the courtroom while it was being played for the jury.

Further, a judge's "function [at a trial] goes beyond ruling on evidentiary matters. In [his or] her hands rests the responsibility of ensuring that a trial in its entirety proceeds fairly and properly. The defendant has a right to be tried and adjudged in a courtroom in which no spectators, jurors, or court personnel may influence inappropriately the final judgment . . . . In short, a judge's physical absence from the courtroom renders proper control of the entire trial procedure an impossibility." Commonwealth v. Bergstrom, supra at 551-552.

We recognize that in Bergstrom, the court was concerned with the question of the absence of the judge from the courtroom during the presentation of evidence at a criminal trial. The court noted, however, that "`[i]t is a part of the right of

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trial by jury as established by the law of this Commonwealth that each party is entitled to the assistance and protection of the judge throughout the trial.'" Commonwealth v. Bergstrom, supra at 551, quoting from Commonwealth v. Dascalakis, 246 Mass. at 30. Trial by jury in a civil case is a right secured by article 15 of the Declaration of Rights to the Constitution of Massachusetts. Higgins v. Boston Elev. Ry. Co., 214 Mass. 335, 336 (1913). Surely parties in a civil action are entitled to the same assistance and protection of the judge throughout the trial as are defendants in criminal cases. Therefore, we hold that, during any jury trial, a judge shall not absent himself from the courtroom while evidence is being presented. Further, we rule that the judge's absence so affects the fundamental fairness of a trial that it is not necessary for an appellant to show prejudice in order to obtain a new trial. [Note 5]

The judgment is reversed and the case is remanded for a new trial.

So ordered.