When Discretion to Record Becomes Assertive: Body Camera Footage as Hearsay

Natalie F. Pike • 20 Vand. J. Ent. & Tech. 1259

Abstract

As police body camera footage pervades courtrooms across the country as evidence in criminal trials, courts must reevaluate whether, and under which evidentiary frameworks, they will admit the footage to prove that what the footage depicts is true. This Note analyzes the frameworks under which courts have historically admitted filmic evidence: namely, through authentication and as demonstrative evidence. It concludes that body camera footage is distinct from evidence traditionally admitted through those frameworks because body camera footage is akin to an officer’s assertive statement—the officer has discretion to activate and aim the body camera. Courts should therefore exclude the footage as hearsay when it is offered to prove the truth of the matter depicted in the video. This Note proposes two practical frameworks under which courts could nevertheless admit the footage should they classify it as hearsay: the present sense impression exception to hearsay, or as corroborative evidence that is not offered for the truth of the matter asserted. Both frameworks make the police officer who recorded the footage available for cross-examination. Once the officer is on the stand, a defense attorney may cross-examine that officer to mitigate the reliability concerns that body camera footage presents.