The Supreme Court determines the admissibility of an officer’s body-worn camera footage.
Baez v. Commonwealth, Record No. 230899 (Va. Dec. 19, 2024)
Facts: After a high-speed chase, Tara Ann Baez was pulled over and arrested by Officer Massie and his partner Officer Hubbard for eluding. A female officer, Officer File, arrived at the scene to search Baez. She found a folded-up piece of paper containing cocaine in Baez’s pocket. Though Officer File’s body-worn camera depicted her taking the wrapped drugs from Baez’s pocket, Officer Massie did not see her do so.
Officer Massie testified at Baez’s trial, but Officer File did not. Instead, the prosecution relied on her body-cam footage, entered through Officer Massie’s testimony, to establish the chain of custody of the seized drugs. Baez objected to admission of the video based on violation of the Confrontation Clause because both the recording and the recording officer’s actions were testimonial hearsay. She also objected because the video lacked a proper foundation: Officer Massie could not authenticate any part of the video that he did not personally witness, and the video could not be admitted as an independent silent witness without testimony as to the technical details and creation of the recording.
The trial court allowed the Commonwealth to establish a foundation for the video through Officer Massie. Officer Massie testified to how the body-cams work, how videos are created, and that they were uploaded automatically at the end of each day. The trial court allowed the prosecution to play the video.
Based on the evidence, the trial court found Baez guilty of possession of cocaine. Baez appealed, first to the Court of Appeals, which affirmed her convictions, and then to the Supreme Court.
Issues: (1) Whether admission of the video violated Baez’s Sixth Amendment right to confront witnesses. (2) Whether the video was properly authenticated
Holdings: (1) No. The video did not contain hearsay that would implicate the Confrontation Clause. (2) Yes. Officer Massie’s testimony satisfied authentication requirements.
Notes: (1) The Confrontation Clause gives the accused the right to confront any witness against them. To be inadmissible under the Confrontation Clause, testimony must be both (1) hearsay and (2) testimonial in nature. Hearsay can come from both verbal and nonverbal assertive conduct since the value of assertive conduct depends on the credibility of the out-of-court asserter. The Supreme Court found that a video recorded on a body-cam “is not inherently a testimonial statement that automatically implicates the Confrontation Clause, even if created by law enforcement while engaging in their official duties.” But conduct or actions depicted within the video can be hearsay. Whether the depicted conduct or actions are hearsay turns on whether the actor intends the conduct to be an assertion, and that assertion is then offered to prove the truth of the matter asserted. Here, Officer File’s actions were “matter-of-course.” The video simply depicted an officer’s routine practice of a search incident to arrest. Officer File’s actions were not intended as an assertion, thus did not amount to hearsay, and thus could not violate the Confrontation Clause. (Since the video did not contain hearsay, the Supreme Court did not address whether the actions depicted were testimonial.)
(2) Videos may be admitted as evidence either to illustrate a witness’s testimony or to serve as an ‘independent silent witness’ of matters depicted in the video. A video may be verified by a witness who testified that it fairly represents what the witness observed, even if the witness did not make the recording or personally observe every detail depicted in it. As a silent witness, the video is admissible “when given an adequate foundation assuring the accuracy of the process producing it.” Here, Officer Massie’s testimony satisfied the authentication requirements for both theories of admissibility. First, he testified that he was present at the scene and that the footage accurately depicted the evidence that took place that night. Second, Officer Massie testified to the process for creating the videos. This evidence showed the accuracy of the process of producing the video.
The Supreme Court noted that its holding did not mean that body-cam would always be admissible. Rather, the “authentication inquiry is merely one part of the admissibility determination,” and other rules of evidence may exclude admission of such footage depending on why it is offered into evidence.