Playing Video Tape Without Audio Did Not Violate Confrontation Clause

Seventh Considers whether the visuals from a video tape (with no sound) may implicate the Confrontation Clause and concludes the playing of the video did not provide a witness and was not a statement, in United States v. Wallace, _ F.3d _ (7th Cir. May 16, 2014) (No. 13-2160)

What issues are presented under the Confrontation Clause when a video without sound is played at trial? The Seventh Circuit recently considered this issue.

Trial Court Proceedings: Playing Video Without Sound

In the case, defendant Wallace was prosecuted for possessing 280 grams of crack cocaine with intent to distribute. His nephew was a paid DEA informant who agreed to wear a tiny audio/video recorder during a buy. The video, which was “dark and blurry,” was played at trial without any sound. The informant had moved and recanted his original report that the defendant had provided the drugs he purchased. Neither the government nor defense sought to compel his testimony at trial. When the video was played, “The lead DEA agent explained to the jury what he thought the videotape showed—plastic bags containing cocaine and the defendant’s handing crack to [nephew and informant] Andrew while standing next to a microwave oven inside of which was a measuring cup containing an off‐white substance that turned out to be crack‐cocaine residue.” Wallace, _ F.3d at _. After the defendant was convicted by the jury, on appeal he asserted the playing of the video tape violated the Confrontation Clause since the nephew informant did not testify.

Seventh Circuit Review: No Witness Was Presented

The Seventh Circuit concluded that the Confrontation Clause was not violated. As the circuit explained:

The video of the defendant in this case handing crack to his nephew was a picture; it was not a witness who could be cross‐examined. The agent narrated the video at trial, and his narration was a series of statements, so he was subject to being crossexaminedand was, and thus was “confronted.”
...
The defendant had ample opportunity to challenge the reliability of the videotape, not only by cross‐examining the agent who narrated it but also by finding an expert who might testify that the videotape had been doctored. But the videotape itself was not a “statement” the maker of which could be “confronted” to test the “statement’s” accuracy. So there was no confrontation‐clause error.

Wallace, _ F.3d at _. The circuit noted that the nephew, if he had testified, would have described the circumstances in which the video was placed on him and this statement would not be a "statement" under FRE 801(a). The use of the videotape also was not “nonverbal conduct.”

Finally, the circuit concluded that if there was any error, it was harmless based on "overwhelming evidence of the defendant’s guilt."

Conclusion

The Wallace case considers the circumstances in which a video depiction of events may raise Confrontation Clause issues. Ultimately, the mere playing of the video did not involve a "witness" which could be confronted.

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