The opinion of the court was delivered by

ACCURSO, J.A.D.

Plaintiff Leonides Velazquez appeals from the jury's no cause verdict in his New Jersey Civil Rights Act action against defendant Alexis Ramos, a Camden police officer who shot Velazquez twice in the torso outside his home in the course of responding to a domestic disturbance call. Plaintiff also appeals from the involuntary dismissal of his case against Ramos' employer, co-defendant City of Camden, at the close of plaintiff's case pursuant to Rule 4:37-2, and the court's order denying his motion for new trial as to both defendants pursuant to Rule 4:49-1.

Plaintiff raises three issues on appeal. He claims the court erred in allowing an assistant prosecutor to testify he determined, after reviewing the investigation conducted, not to criminally prosecute Ramos, by excluding all references to Ramos' mental health records and by excusing a juror before deliberations. Because we agree the prosecutor should not have been allowed to testify that Ramos was not criminally charged, and conclude that Ramos' mental health records were relevant to his perception of events on the night of the shooting, and thus to both his credibility and the reasonableness of his perceptions and conduct, we reverse the verdicts in favor of both defendants and remand for a new trial.1

Although the parties presented extensive testimony from the several eyewitnesses, the essential facts are easily summarized. The jury heard testimony that plaintiff was standing outside his home in Camden with one of his sisters when his girlfriend's mother and sister drove up in a van shortly after 1:00 a.m. on January 2, 2009. The two women began yelling and cursing at plaintiff, accusing him of hitting his girlfriend and breaking a window at her home. The girlfriend's mother was standing half in and half out of the driver's seat yelling at plaintiff, who stood about ten feet away. Plaintiff was yelling back at both women. The argument was apparently quite loud and conducted in both English and Spanish.

Hearing the commotion, plaintiff's mother and another sister came outside. Plaintiff testified that after threatening to have someone beat him up, the girlfriend's sister got out of the van and picked up a rock from a tree garden in plaintiff's yard. According to plaintiff, his mother and two sisters, she returned to the van and threw the rock at plaintiff. The rock did not hit plaintiff, as his mother deflected it with her hand. Plaintiff testified he bent to pick up the rock thrown at him. As he stood up, rock in hand, Ramos appeared and shot him. Plaintiff acknowledged his blood alcohol content at the time of the fight was .16, but testified he did not feel drunk.

Although neither the girlfriend's sister or mother could remember the sister throwing a rock at plaintiff, both admit the argument and recall seeing plaintiff with a rock in his hand just before he was shot.

A neighbor testified she was sitting on her porch when the argument broke out. Moving to the sidewalk to get a better view, she saw one of the women bend down, grab a rock and walk around the van and open the door. As that was happening, "[c]ops was pulling up. They parked — he parked across the street. The girl threw the rock. [Plaintiff] bent down to grab the rock and as he came up, the police shot him like two or three times."

Although describing the "rock" variously as a rock or a brick,2 both plaintiff and his family as well as the girlfriend's family all agreed with the neighbor that the rock fit into the palm of plaintiff's hand. None of the witnesses testified that plaintiff was holding the rock over his head.

Ramos testified he was on duty preparing to write parking tickets when he heard the communications operator dispatch two patrol units to a large fight nearby. Although he was not dispatched to the scene, he drove on his own initiative to the address where the fight was reported to be taking place. He was in a marked patrol car, but had not activated his siren or emergency lights. He was the first officer on the scene.

Ramos claimed he saw about ten people engaged in an argument, but admitted no one was physically fighting. He shone his spotlight on the group for a few seconds before getting out of the car to get their attention but testified "[t]hey continued arguing and screaming and hollering at each other as if I wasn't there." Ramos claimed he drew his weapon as he neared the group when he saw plaintiff, the only male present, raise a large piece of cement, which Ramos estimated to be between eighteen and twenty-nine inches across, over his head with both hands.

He testified he "either told [plaintiff] to put it down, drop it or something along those lines several times. He didn't and I shot him twice in the torso. Then, when I shot him, he turned and looked at me for the first time and then fell onto the ground." One of the dispatched officers heard the shots as his unit arrived on the scene. A security video from a nearby business documented that one minute and ten seconds elapsed between the time Ramos arrived and the other police cars appeared.

Defendants presented Emanuel Kapelsohn "as an expert in the field of firearms, police training, crime scene reconstruction, and use of force, including deadly force by police." Mr. Kapelsohn, while opining that Ramos' use of force was reasonable, also testified he did not "accept what [Ramos is] saying, [about the size of the rock] because clearly [plaintiff] didn't pick up a piece of concrete that was 18 to 24 inches across." The expert testified that police officers in stressful situations commonly experience tunnel vision, causing them to misperceive the size of a weapon.

When asked specifically by defense counsel about Ramos' testimony that plaintiff was holding a rock "estimated at 18 to 29 inches," and how the expert "could explain that perception under these circumstances," the expert replied, "[t]unnel vision and the stress effect of being involved in a deadly force confrontation." The expert told the jury that "[a]s long as it was objectively reasonable for Officer Ramos to perceive a rock large enough to cause serious bodily injury to someone," the actual size of the rock would have no bearing on his opinion that Ramos' use of deadly force was justified.

The jury did not hear other explanations for what defendant's expert accepted as Ramos' clear misperception of the size of the rock plaintiff was holding. Specifically, as a result of an in limine ruling barring plaintiff from making any reference to Ramos' psychological records, the jury did not learn that Ramos had eighteen months before been placed on light duty, relieved of his service weapon and discharged from the SWAT team after experiencing nightmares following the shooting of a fellow officer.

The psychologist the City referred Ramos to for a fitness-for-duty exam in May 2007 expressed a "wide variety" of concerns about Ramos including "anxiety and tension, sleep disturbance ... feelings of depression ... [and] indications of potentially problematic anger and alcohol use." The psychologist concluded at that time that Ramos' "apparent difficulties functioning could compromise the quality of his judgments in risky or sensitive situations." Ramos was dismissed from the SWAT team by the department's command staff effective July 26, 2007 as "a preventative measure in the best interest and well-being of yourself and other members of the SWAT team."

Although returned to full duty in July 2007, Ramos continued to treat with a social worker through the shooting in January 2009. The social worker's notes reflect that Ramos was still suffering from nightmares in which he dreamed he was shot by a citizen or in turn shot and killed an unarmed person, at the time he shot plaintiff. In the month before the shooting, Ramos crashed his patrol car into a tree in a parking lot, leading the social worker to conclude, "[h]is concentration is off. He hit a tree the other day in a police vehicle." Unbeknownst to the jury, Ramos filed for a disability pension two weeks before he shot plaintiff. He has not worked as a police officer since his encounter with plaintiff.

The two issues we discuss both arose out of evidentiary rulings at trial. We review a trial court's evidentiary rulings for abuse of discretion, Hisenaj v. Kuehner, 194 N.J. 6, 12, 942 A.2d 769 (2008), and disregard any error we deem harmless. Higgins v. Owens-Corning Fiberglas Corp., 282 N.J.Super. 600, 609, 660 A.2d 1252 (App.Div.1995). Only those errors "clearly capable of producing an unjust result," will result in a reversal of a jury verdict. R. 2:10-2.

At trial, the parties sparred over whether defendants would be allowed to admit the testimony of the assistant prosecutor who determined that Ramos would not be prosecuted. Plaintiff made a mid-trial motion to bar the testimony, which was opposed by defendants. After reviewing plaintiff's brief in support of the motion and hearing oral argument, the trial judge ruled that Assistant Prosecutor Smith could not testify to his reasons for not prosecuting, but could testify to his decision not to prosecute:

The court then ruled, over plaintiff's objection, that, "The only question I will permit to Greg Smith is: was Ramos prosecuted for shooting Velazquez; yes or no? Period. No further questions." The court rejected defense counsel's request to "go over [Smith's] background," instead making clear counsel was to elicit only the witness's name and job title and nothing else.

Ramos' counsel's direct examination of the assistant prosecutor proceeded in pertinent part as follows:

Plaintiff contends Smith's testimony should not have been admitted as lay opinion under N.J.R.E. 7013 and whatever relevance it had was substantially outweighed under N.J.R.E. 403 by its "severe and undue" prejudice to plaintiff. We agree.

In American Home Assurance Co. v. Sunshine Supermarket, Inc., 753 F.2d 321, 323-25 (3d Cir.1985), a declaratory judgment case in which the insurer disclaimed coverage on the basis of arson, the Third Circuit held that admitting "evidence of non-prosecution for arson" was reversible error. The court explained:

In reaching its conclusion, the American Home court relied on Galbraith v. Hartford Fire Insurance Co., 464 F.2d 225, 227 (3d Cir.1972), in which the circuit court had applied New Jersey law to hold inadmissible, evidence that a litigant accused of committing arson was not criminally charged. Although finding no New Jersey case squarely on point, the Galbraith court noted "New Jersey law indicates clearly that evidence of an accused's acquittal in a criminal proceeding is not admissible in a civil suit arising out of the event which formed the basis of the criminal charge." Ibid. The court explained:

Similarly, in Johnson v. Elk Lake School District, 283 F.3d 138, 147 (3d Cir.2002), the Third Circuit explained that defense counsel's comment in an opening statement that the defendant had never been prosecuted for sexual assault, in a civil suit seeking damages for sexual assault, was improper. The court explained that evidence of "non-arrest, like evidence of non-prosecution or acquittal of a crime, is generally inadmissible in a civil trial concerning the same incident," because of the different burdens; and that the "decision not to arrest may take into account many factors irrelevant to a civil suit, such as the allocation of law enforcement resources and other considerations of prosecutorial discretion." Ibid. Because the probative value of such evidence is so limited, "courts exclude it in order to avoid the danger of the jury in a civil trial exaggerating its worth."4 Ibid.

We agree with the Third Circuit's view of New Jersey law on this point. The defense presented Assistant Prosecutor Smith's testimony, as made obvious by the questions put to him, to tell the jury that the chief of the homicide unit, who was responsible to review the investigation of the shooting under the Attorney General's Use of Force Policy, determined not to criminally prosecute Ramos. The obvious import of that testimony was that the prosecutor believed Ramos' shooting of plaintiff was lawful as a justifiable use of force under the circumstances.

Assistant Prosecutor Smith, however, did not witness the shooting, and thus his opinion was clearly inadmissible under the lay opinion rule, N.J.R.E. 701, because it was not based on actual knowledge acquired through the use of his senses. See State v. McLean, 205 N.J. 438, 456-57, 16 A.3d 332 (2011) (noting the requirement of N.J.R.E. 701 that lay opinion be based on perception of the witness "rests on the acquisition of knowledge through use of one's sense of touch, taste, sight, smell or hearing"); Gonzales v. Hugelmeyer, 441 N.J.Super. 451, 460, 119 A.3d 932 (App. Div.) (applying same principles in civil case), certif. denied, 223 N.J. 356, 124 A.3d 240 (2015); see also Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 701 (2016) ("The opinion of a county prosecutor that a suspect had not committed arson is not admissible at a subsequent civil trial on that issue because his opinion would not be based on personal knowledge.").

Defendants do "not dispute the general proposition that evidence of non-prosecution in a criminal matter is not admissible to show `innocence' or `non-liability' in a civil matter on account of the different burdens of proof." Instead they argue that plaintiff's counsel "opened the door" to Smith's testimony by remarking in his opening statement that this was "an attempted homicide investigation."

The law is well settled, however, that "[o]pening statements are not evidential and should not be responded to by `rebuttal' evidence. If improper remarks are made by counsel, the remedy lies in a curative instruction to the jury or, if absolutely necessary, a mistrial." State v. Anastasia, 356 N.J.Super. 534, 543, 813 A.2d 601 (App.Div.2003). "[A]n improper or erroneous statement made on opening is not properly corrected by allowing the introduction of prejudicial evidence that would otherwise be inadmissible." Ibid. Because we reject defendants' argument that the testimony, even if ordinarily inadmissible, was properly admitted here as rebuttal evidence, we consider whether the error was harmless.

At argument on plaintiff's motion for a new trial, the trial judge acknowledged that Smith's testimony "went beyond the limited scope that the court ordered." He nevertheless denied the motion based on "corrective instructions to the jury." The parties have not identified any curative instruction to the jury on this point, and our own review has failed to identify one.5

We are not convinced, however, that a curative instruction, even were one given, could have undone the damage to plaintiff's case by Ramos' counsel's questioning of Smith, particularly in light of the court's ruling disallowing reference to Ramos' mental health records. In this we rely on the trial judge's assessment of the evidence in the record in denying Ramos' motion for dismissal at the close of plaintiff's case.

Carefully canvassing the facts in the record, the judge described the two scenarios presented to the jury of the events of the night of the shooting.

Having reviewed the record ourselves, we conclude the judge very ably summed up the two different factual scenarios confronting this jury. The case obviously presented a pitched credibility battle regarding the events taking place over the course of the seventy seconds that elapsed between Officer Ramos' arrival and plaintiff's shooting.

The decision for the jury was whether Officer Ramos' act of shooting plaintiff was an objectively reasonable use of deadly force to protect himself or others from an imminent threat of serious bodily harm. Stated differently, they had to decide whether they accepted the officer's version presented by the first scenario or plaintiff's version presented by the second. Having the head of the homicide unit in the prosecutor's officer offer his opinion that Ramos should not face criminal charges based on the investigation conducted, in our view impermissibly risked tipping the scales on that very close question in defendants' favor.

As the Supreme Court noted in analogous circumstances, "[a] jury may be inclined to accord special respect to such a witness." Neno v. Clinton, 167 N.J. 573, 586, 772 A.2d 899 (2001) (addressing impropriety of having police officer offer his opinion on the cause of an accident based on the hearsay statements of witnesses testifying in the action). It could not have been lost on this jury that had the prosecutor found the civilians' account of the shooting credible, instead of Ramos', that Ramos would have likely been criminally prosecuted. At the very least, it impermissibly bolstered the officer's version of events. See State v. R.K., 220 N.J. 444, 458, 106 A.3d 1224 (2015).

"For a hearsay error to mandate reversal, `[t]he possibility [of an unjust verdict] must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" Neno, supra, 167 N.J. at 586, 772 A.2d 899 (quoting State v. Hightower, 120 N.J. 378, 410, 577 A.2d 99 (1990) (quoting State v. Bankston, 63 N.J. 263, 273, 307 A.2d 65 (1973))). Having reviewed the record of this trial, we are convinced that admitting Assistant Prosecutor Smith's testimony was an error of that magnitude.

Smith testified that as chief of the homicide unit he was called upon to review any investigation of a police shooting involving injury or death and, after reviewing the investigation conducted in this matter, he determined not to criminally prosecute defendant Ramos. The jury could very well "have ascribed almost determinative significance to that opinion, which went to the heart of the case."6 Id. at 587, 772 A.2d 899. Because the improperly admitted testimony was "clearly capable of producing an unjust result," R. 2:10-2, especially when coupled with the decision to preclude any reference to Ramos' mental health records, to which we turn now, reversal is required.

Defendant Ramos made a motion before trial to bar any mention of Ramos' state of mind, including psychological counseling. Cf. N.J.R.E. 534 (effective July 1, 2016) (codifying a new uniform mental health privilege affecting the admissibility of patient communications with mental health providers along with several exceptions). The trial judge granted the motion finding that "Officer Ramos' private mental health or his information is not necessary to determine whether his use of force against the plaintiff was constitutional.... His mental state has no bearing on whether his actions were objectively reasonable under the circumstances."7

Defendants devote the greater part of their briefs to defending the unassailable proposition that excessive force claims are analyzed under the Fourth Amendment's "objective reasonableness" standard, Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 1867-68, 104 L.Ed.2d 443, 450 (1989), and thus that Officer Ramos' "subjective state of mind is irrelevant to a proper assessment of the standard of objective reasonableness under the Fourth Amendment."

We certainly agree that the substantive question in excessive force cases "is whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. at 397, 109 S.Ct. at 1872, 104 L.Ed.2d at 456; see also Tumpson v. Farina, 218 N.J. 450, 474, 95 A.3d 210 (2014) (noting interpretation given to parallel provisions of 42 U.S.C.A. § 1983 provides guidance in construing our Civil Rights Act).

As the United States Supreme Court has explained, "[a]n officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional." Graham, supra, 490 U.S. at 397, 109 S.Ct. at 1872, 104 L.Ed.2d at 456.

But defendants' forceful defense of the trial court's ruling prohibiting any reference to Ramos' mental health records is a "straw man" argument,8 because plaintiff has never sought to use the records to challenge Ramos' subjective motivation in firing on him. Instead, plaintiff sought to use the records to challenge Ramos' perceptions and his ability to make observations, a classic use of extrinsic evidence to impugn a witness's credibility under N.J.R.E. 607. See State v. Johnson, 216 N.J.Super. 588, 603, 524 A.2d 826 (App. Div.1987) ("any deficiency of the senses which would lessen the ability to perceive facts testified to by the witness is an attack on the credibility of the witness"), certif. denied, 107 N.J. 647, 527 A.2d 467 (1987).

Our Supreme Court has recognized that an officer's account of the facts is relevant in excessive force cases. Although an officer's conduct

Conversely, plaintiff must be allowed to challenge the officer's version of the facts, including through the use of extrinsic evidence to impeach his credibility.

Our courts have held in a variety of other contexts that evidence of a witness's mental state or condition is relevant to assess credibility and explain the witness's conduct. In State v. Burr, 195 N.J. 119, 123, 948 A.2d 627 (2008), the Court found that evidence that a defendant charged with sexual assault suffered from Asperger's Disorder should have been admitted because it was material to his explanation of himself and his conduct. The Court stated that "evidence of mental defect, illness, or condition has been admitted... to assess credibility or otherwise evaluate the subjective perceptions of an actor." Id. at 128, 948 A.2d 627.

In Johnson, supra, 216 N.J.Super. at 603, 524 A.2d 826, we explained that "evidence of a witness' sensory or mental defects has unquestionable relevance in attacking a witness' credibility." We held mental abnormality, including being under the influence of drugs or alcohol "at the time of observing the facts is provable on cross-examination or by extrinsic evidence bearing on credibility." Ibid.; see also Jaffee v. Redmond, 518 U.S. 1, 3-10, 116 S.Ct. 1923, 1925-28, 135 L.Ed.2d 337, 341-45 (1996) (acknowledging in adopting psychotherapist-patient privilege that a police officer's mental health records in a civil rights suit accusing the officer of excessive force in shooting plaintiff's decedent would be probative of the officer's conduct and perceptions at the scene).

In State v. Franklin, 52 N.J. 386, 399-400, 245 A.2d 356 (1968), the Court held that the trial court's restriction of defense counsel's cross-examination of a critical witness in a homicide prosecution on her alcoholism was reversible error. The Court held the error deprived the jury of "the benefit of what we now know of [the witness's] drinking habits, the physical and mental effects of alcohol upon her (including hallucinating), and her hospital admissions, so that it could reach an informed judgment as to whether her testimony was to be believed." Id. at 399, 245 A.2d 356.

Similarly, in State v. Wormley, 305 N.J.Super. 57, 65-67, 701 A.2d 944 (App. Div.1997), we held that it was reversible error to prohibit the defendants from inquiring into a witness's drug use to attack his credibility. We reiterated that a defendant in a criminal trial "is entitled to fully test the State's proofs by challenging a witness's perceptions and his ability to make observations." Id. at 66, 701 A.2d 944. Because the witness's testimony was inconsistent with other evidence, we acknowledged that the "defendants were able to cast some question upon [the witness's] credibility through these peculiarities in his testimony and his prior convictions." Id. at 68, 701 A.2d 944. We noted, however, our conviction "that whereas the jury might have had some question as to his observations based upon all of that, cross-examination of his drug use may well have tipped the scales." Ibid.

The clear import of all of these cases is that a witness is always subject to cross-examination on his ability to accurately perceive the facts to which he has testified. The accuracy of the witness's observations and perceptions is central to an assessment of the witness's credibility. Although the trial court was correct that evidence of Ramos' nightmares, anxiety and tension, sleep disturbance and lack of concentration would not be admissible to establish his subjective intent or motivation, as such is not relevant to an excessive force claim, see Graham, supra, 490 U.S. at 397, 109 S.Ct. at 1872, 104 L.Ed.2d at 456, that was not the purpose for which the evidence was offered.

Ramos' nightmares, anxieties and tensions, sleep disturbances and lack of concentration were relevant, and thus admissible, to assess his credibility and evaluate his subjective perceptions of the threat plaintiff posed. See Burr, supra, 195 N.J. at 128, 948 A.2d 627. "A party may introduce extrinsic evidence relevant to credibility, whether or not that extrinsic evidence bears upon the subject matter of the action." Johnson, supra, 216 N.J.Super. at 603, 524 A.2d 826.

Interpreting the "objective reasonableness" standard for evaluating excessive force claims so expansively as to preclude a cross-examiner from probing whether the officer's psychiatric symptoms affected his ability to accurately perceive the events giving rise to the claim, we are convinced was error. Such an interpretation risks creating a special rule of credibility for police officers defending against excessive force claims, shielding them from the ordinary rules of cross-examination. Nothing in our case law supports such an interpretation. See DelaCruz, supra, 183 N.J. at 166-67, 870 A.2d 259.

Whether Officer Ramos' act of shooting plaintiff twice in the torso was objectively reasonable depends entirely on how a reasonable officer would have perceived the threat plaintiff posed. See id. at 166, 870 A.2d 259. That, in turn, likely depended on whether the jury believed plaintiff simply picked up a small two to four inch rock thrown at him in the course of a loud argument, as plaintiff and the other witnesses testified, or whether he was menacing the women with a large eighteen to twenty-nine inch piece of cement he held in both hands over his head, as Ramos claimed.

In deciding which scenario they accepted, the jurors should have been informed that there were reasons other than the tunnel vision offered by defendants' expert to explain why Ramos may have seriously misperceived the size of the rock plaintiff was holding and thus the magnitude of the threat he posed. Plaintiff should have been permitted to tell the jury that Ramos had eighteen months before been placed on light duty after experiencing nightmares following the shooting of a fellow officer and discharged from the SWAT team after a psychologist concluded that Ramos' "apparent difficulties functioning could compromise the quality of his judgments in risky or sensitive situations." Plaintiff's counsel should have been able to cross-examine Ramos about his symptoms and their effect on his perceptions and the performance of his duties.

Because the court's ruling barring any reference to Ramos' mental health records severely prejudiced plaintiff in his ability to prove his excessive force claim against Ramos and gutted his Monell9 claim against the City, we reverse the verdicts in defendants' favor and remand for a new trial as to both defendants.

Reversed and remanded for a new trial. We do not retain jurisdiction.