Supreme Court of Virginia Finds Admission of Video From Police Officer's Body-Worn Camera Didn't Violate the Confrontation Clause

The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him." Moreover, in Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial."

So, does the admission of video from a police officer's body-worn camera violate a criminal defendant's rights under the Confrontation Clause? This was the question of first impression addressed by the Supreme Court of Virginia in its recent opinion in Baez v. Commonwealth, 2024 WL 5160826 (Va. 2024).

At Tara Baez's trial, the prosecution introduced video from a police officer's body-worn camera to establish the chain of custody regarding cocaine that was taken from her pocket. After Baez was convicted, she appealed, claiming that the admission of the video violated her rights under the Confrontation Clause. The Supreme Court of Virginia rejected her appeal, ruling as follows:

Before determining whether an out-of-court statement is testimonial, we must first determine whether a statement has been offered to establish or prove some fact. Under the Virginia Rules of Evidence, hearsay is 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.”...A statement is either “(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended as an assertion.”...Thus, to constitute hearsay, which is necessary to implicate the Confrontation Clause, there must be a verbal or nonverbal assertion of fact.

Baez argues that an officer who records themselves while engaging in a search is inherently making an assertion for the purpose of litigation. She suggests that body-worn camera footage is distinct from videos created by other sources, like surveillance cameras, because the body-worn camera is completely within the control of the recording officer. Given the “editorial ability of the recording officer to create their own narrative”—choosing when, how, and what to record—she argues that the video itself should qualify as hearsay. The assertion represented by the existence of the video, according to Baez, is that Officer File appropriately searched Baez and that Baez possessed cocaine.

In arguing as much, however, Baez necessarily relies on the content depicted in the recording to give the video intrinsic assertive significance. Even types of evidence that are plainly assertive by nature, such as affidavits, have been classified as such based on the content within the medium, not the medium itself....Put simply, a video recorded on a body-worn camera is not inherently a testimonial statement that automatically implicates the Confrontation Clause, even if created by law enforcement while engaging in their official duties. Rather, the incidents depicted in the video dictate whether it contains any testimonial statements that are a “solemn declaration or affirmation made for the purpose of establishing or proving some fact.”...

Turning to the contents of the video at issue, the trial court and the Court of Appeals correctly reasoned that nothing depicted in the video's contents was intended to be an assertion of some fact that qualifies as a statement for purposes of the hearsay definition. As observed by the Court of Appeals in its reliance on Bennett, “unless the video contains conduct that ‘is intended by the actor as an assertion,’ the contents of the video simply are not hearsay.”...Understandably, not all nonverbal conduct will rise to this level....Assertive intent is necessary for nonverbal conduct to qualify as a statement under our definition of hearsay....

Baez argues that Officer File's actions constitute intentional communicative assertions: upon finding the folded piece of paper, Officer File “pointedly” stepped back and held up the item toward her camera, “purposefully memorializ[ing]” that she searched Baez and found her in possession of drugs. However, this interpretation of Officer File's actions speculatively assigns meaning to her otherwise matter-of-course behavior. Viewing the evidence in the light most favorable to the Commonwealth,...the video simply depicts a law enforcement officer's routine practice of a search incident to arrest. After locating an item in Baez's pocket, Officer File turns to hold the folded paper under another officer's flashlight, ostensibly to better view the paper and its contents considering the late hour of the arrest. Having apparently determined that the substance is likely contraband, Officer File places the paper and the substance in an evidence bag so that she can continue her search.

The video objectively supports the trial court's determination that Officer File's actions were not intended as an assertion, and therefore they were not hearsay implicating the Confrontation Clause. The Court of Appeals, then, did not err in concluding that the trial court correctly determined that the Confrontation Clause did not prevent admission of the video. Because we agree that the video does not contain hearsay, we need not address whether the contents are testimonial.

-CM