EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, November 4, 2010

It's History: DDC Deems "Gangland" TV Episode From History Channel Inadmissible In Murder Prosecution On Rule 403 Grounds

A defendant is on trial for murder. That murder is the subject of an episode of the television show "Gangland" on the History Channel. The show intermingles photographs of the victim with footage of professional actors engaged in a purported reenactment of his death. The prosecution moves to introduce the videotape, and the defendant moves to exclude it on three grounds: (1) the videotaped reenactment is unfairly prejudicial and confusing and thus inadmissible under Federal Rule of Evidence 403; (2) the videotape consists of inadmissible hearsay offered to prove the truth of the matter asserted under Federal Rule of Evidence 801(c); and (3) admitting the videotape would deprive him of his rights under the Confrontation Clause because the actors in the videotape are in effect "witnesses" whom he will not be able to confront. How should the court rule? According to the recent opinion of the United States District Court for the District of Columbia in United States v. Williams, 2010 WL 4071388 (D.D.C. 2010), the defendant's first argument has merit, meaning that it didn't have to address the other two arguments. I agree but would also add that the other two arguments appear meritorious as well.

In Williams, the facts were as stated above. And the United States District Court for the District of Columbia accepted the defendant's argument that the videotape was inadmissible under Federal Rule of Evidence 403, which provides that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

According to the court,

the videotape in this case is not an actual depiction of the alleged crime but rather a re-creation of the events as they supposedly occurred. An unknown producer created the reenactment for a television audience and hired actors to play the roles of victim and assailants. As the defendant notes, "[t]he producer [of the videotape] would have had every incentive to make the 'reenactment' as dramatic and sensationalistic as possible" in order to appeal to the emotions of the television audience....No one can know whether the producer did or did not act on that powerful incentive, or to what extent. Thus, the Court concludes that the prejudice to the defendant resulting from the admission of this videotape would be "unfair" because it would create a significant risk that the jury could find the defendant guilty based on the emotions stirred by the videotape, and not based on "proof specific to the offense charged."

Furthermore, the court rejected the prosecution's argument

that the videotape ha[d] some probative value because it would enable the jury to visualize certain aspects of the alleged crime. For example, the videotape assertedly would show jurors the difference in height between the defendant and the victim.

The court rejected this argument, finding that

There is no evidence...that the producers of the videotape used professional actors whose heights actually matched those of the defendant and victim; rather, the government state[d] only that there is a "relative" match in heights....Such uncertainty limits the probative value the videotape might have. The same is true with respect to the government's suggestion that the videotape will enable jurors to understand the exact movements of each of the alleged attackers. The government present[ed] no evidence that the producers who re-created the videotape had actual knowledge of these movements, or that they accurately reproduced the movements. When a party generates demonstrative evidence based on conditions that may be dissimilar to the actual conditions, the dissimilarities create uncertainty that undermines the probative value of the evidence....In this case, even if the videotape might inform jurors, the risk of inaccuracy both limits the videotape's probative value and increases the possibility of unfair prejudice.

Because the court found that the videotape was inadmissible under Federal Rule of Evidence 403, it did not need to address Williams' second and third arguments. It seems clear to me, though, that both of them had merit.

Federal Rule of Evidence 801(a) provides that

A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.

And Federal Rule of Evidence 801(c) defines hearsay as

a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

It seems clear that a reenactment is a statement in that it is nonverbal conduct intended as an assertion and that the prosecution was offering it to prove the truth of the matter asserted (i.e., to prove that the reenactment showed how that murder occurred). The prosecution could have claimed that it was merely using the videotape as demonstrative evidence, but, as the court noted above, it seemed to fail the test for demonstrative evidence.

Moreover, even if the videotape met some exception to the rule against hearsay (and I don't think that it would have), I think that its admission would have violated the defendant's rights under the Confrontation Clause. This begs the question of whether the videotape was "testimonial," i.e., whether "it was made under circumstances which would lead a reasonable man to believe that his statement would be available for use at a later trial." I would guess that those involved with the making of the television show would have had this belief, meaning that the videotape's admission would have violated the Clause (assuming that there wasn't testimony by those involved with its making).



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