Body Cameras: Evidentiary Issues
Andy Moorman, AUSA
Mark Moyer, Assistant Solicitor
“Body Camera” Definition
• “Body Camera”- a camera worn by a participant
to an event for the purpose of capturing
evidence.
• NOT
– Dash cameras in police cars;
– Cameras fixed to stationary objects;
• Pole cameras
• Cameras attached to walls in stores
– Cameras people hold
• Smartphone/Iphone/Ipad cameras, etc.
Body cameras: what’s the big deal?
• Body cameras capture video from the vantage
point of a participant in an event. This
vantage point often is chaotic and/or
disorganized, which can make evidentiary
issues associated with videos from body
cameras more complex.
• Very few published or unpublished cases that
discuss video from body cameras.
• https://m.youtube.com/watch?v=HnOBfCmle
d8
BODY CAMERAS AND
THE RULES OF EVIDENCE
• Rule 403
• Rule 802
• Rule 901
Hypothetical
• At 12:01 A.M., on January 1, 2016, Officer
Smith responds to 1 Crescent Avenue after
she receives a call from dispatch that a
domestic disturbance is taking place.
• Pursuant to department policy, Officer Smith
turns on her body camera, which is located on
the front of her chest, when she exits her
patrol car.
Hypothetical (cont)
• When she walks to the front door, a 10 year
old boy meets her there and opens the door.
The boy tells Officer Smith, “my dad is dead,
and he and the woman who stabbed him are
in the kitchen.”
• Officer Smith immediately rushes to the
kitchen. There she sees dad, the victim, and
mom standing over him.
Hypothetical (cont)
• Officer Smith arrests Mom, placing her in
handcuffs. Mom tells Officer Smith “I had to
kill him. It was either him or me.”
• Other officers arrive on scene to assist Officer
Smith, and Officer Smith passes Mom off to
another officer, who drives Mom to jail.
Hypothetical (cont)
• Thinking that her investigation is complete,
Officer Smith turns off her body camera. After
all, she has only two hours of video she can
capture at a time before she has to download it
at the station.
• She then goes to a guest bedroom in the home
with the door closed. Officer Smith knocks on
the door, and she hears a woman say “come in.”
• Officer Smith opens the door and finds Grandma
and Grandpa. Grandma is crocheting in a chair,
and Grandpa is reading a paper.
Hypothetical (cont)
• Officer Smith immediately smells a strong odor of
marijuana, and sees two huge bales of marijuana
on Grandma and Grandpa’s bed. Grandma tells
Officer Smith “that’s my weed. You got a
problem?”
• Smith also sees an AK-47 on the dresser on top of
Grandpa’s wallet. Grandma tells Smith, “that is
Grandpa’s gun, and he’s a convicted felon.”
• Finally, Smith sees on the floor a knife that had
dad’s blood and mom’s fingerprints on it.
Hypothetical (cont)
• Officer Smith and other officers arrest Grandpa
and Grandma.
• Officer Smith collects the marijuana, the AK-47,
and the knife and drives to property and evidence
at the police station. She does not remember
that her body camera was off until she checks the
evidence into P+E. She activates her body
camera and narrates where she seized the
marijuana, the AK-47, and the knife in the home
as she checks it into P+E. She also mentions
statements Grandma made.
• Boy meets Officer Smith at door. Boy tells Officer Smith, “my dad is dead,
and he and the woman who stabbed him are in the kitchen.”
Mom standing over Dad’s body and
says, “I had to kill him, it was either
him or me.”
•
KITCHEN
Grandpa and Grandma sitting in chairs. Two bales of
marijuana on bed. Grandma says, “that’s my weed, you
got a problem?”
GUEST BEDROOM
•
Officer Smith also sees a knife on the floor that has
Dad’s blood and Mom’s fingerprint.
•
Officer Smith sees an AK-47 on the dresser next to
Grandpa’s wallet. Grandma says, “that’s Grandpa’s gun,
and he is a convicted felon.”
• Officer Smith checks marijuana, AK-47, and bloody knife into P+E while
narrating when she found them, where she found them, and what
Grandma said.
State v. Mom: Murder
• Rule 403
– Probative Value- How important is it to the
outcome of the case?
– Danger of Unfair Prejudice- Grandma and
Grandpa’s Room?
– “Confusing the issues?”- Evidence related to
drugs, a firearm, and a murder?
State v. Grandma:
Trafficking Marijuana
• Rule 403– Probative Value- How does Mom’s statements/
dead body on the kitchen floor relate to bales of
marijuana in Grandma’s and Grandpa’s bedroom?
Drugs being checked into P+E?
– Danger for Unfair Prejudice- Evidence of Dad’s
murder and Grandpa’s felon in possession? Knife
and firearm being checked into P+E?
– Confusion of the issues?
State v. Grandpa: Felon in Possession
• Rule 403– Probative Value- Firearm being checked into P+E?
– Danger for Unfair Prejudice- Evidence of Murder
in kitchen, drugs being checked into P+E?
State v. Mom: Murder (Cont)
• Rule 802
– Boy’s statement?• Not hearsay- Not offered for its truth, but to explain why
Officer Smith immediately walked to kitchen. State v.
Thompson, 352 S.C. 552, 558, 575 S.E.2d 77, 81 (Ct. App.
2003) (citing United States v. Love, 767 F.2d 1052 (1985),
cert. denied, 474 U.S. 1081, 106 S.Ct. 848, 849, 88 L.Ed.2d
890 (1986)(“[A]n out of court statement is not hearsay if it is
offered for the limited purpose of explaining why a
government investigation was undertaken.”)
•
State v. Mom: Murder (Cont)
• Rule 802 (Cont)
– Mom’s statement
• If offered by the State, not hearsay because it is an admission by a
party opponent. F.R.E. 801(d)(2)(A).
• If offered by Mom, either not hearsay if offered to show Mom’s
state of mind at the time she killed Dad or admissible as an
exception to the hearsay rule. See State v. Garcia, 334 S.C. 71, 7576, 512 S.E.2d 507, 509 (1999) (internal quotation marks and
citations omitted) (“Rule 803(3) provides an exception for
statements of present state of mind, emotion or physical
condition. These statements are considered trustworthy because
they are based on unique perception; that is, the declarant has a
unique perspective into his own feelings and emotions.
Statements may either directly or circumstantially show the
declarant's state of mind, emotion, or physical condition.”).
State v. Grandma:
Trafficking Marijuana (cont)
• Rule 802
– Grandma’s statement
• If offered by the State, not hearsay because it is an
admission by a party opponent. F.R.E. 801(d)(2)(A).
State v. Grandpa:
Felon in Possession (cont)
• Rule 802
– If offered by the State, likely inadmissible hearsay.
– Exceptions??
State v. Mom
State v. Grandpa
State v. Grandpa
• Rule 802
– Statements made by Officer Smith as she checks
bloody knife, marijuana, and AK-47 into P+E
• Hearsay?
• If so, might F.R.E. 803(6) apply?
State v. Mom
State v. Grandpa
State v. Grandpa
• Rule 901- What do you claim this video to be?
• The end