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 Very few published or unpublished cases that discuss video from body cameras.

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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.” 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. 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.”

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, , 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?

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