A. Rising Use of Body-Worn Video Camera Technology by Police
Video and sound recording by the cops is not a new concept. In fact, law enforcement officers have recognized the value of video evidence for more than half a century with dash-cams in police cruisers. Another example of video recording by law enforcement is the television show “Cops,” which films police officers doing everything from scaring first-timers straight to hurdling fences after fleeing felons. A common moment in every episode is when suspects notice that a film crew is documenting everything. It is hard to miss the cameraman lugging around a heavy shoulder camera throughout the arrest. Some suspects are mad, some appear confused, but they always notice that they are being filmed.
However, new technology has inspired a trend among Texas law enforcement agencies that allows officers to capture similar audio and video evidence without the suspect realizing he or she is being recorded. Recently, officers in Texas and across the United States have been using small body worn video cameras (BWCs) that can record both sound and video contemporaneously during the officers’ law enforcement duties. Some of the cameras mount to glasses or sit on an officer’s ear like a Bluetooth headset; others attach to the officer’s chest or shoulder and resemble a walkie-talkie.1
Regardless of where the cameras sit on the officer’s body, BWCs are far less noticeable than a cameraman and his lighting crew, but they still create similar contemporaneous audio and video evidence. Unlike a potential witness’ memory, the clarity of digital video evidence does not fade with time.
Even though this technology will capture seemingly incontrovertible video images with contemporaneous audio, the evidence produced from the cameras raises many jurisprudential concerns—especially since the use of BWCs is largely unregulated and growing quickly.2
Below is a discussion on how the Confrontation Clause of the Sixth Amendment and the Texas hearsay doctrine apply to BWC evidence, taking into account the recent changes in both Texas and the Supreme Court evidentiary jurisprudence. This article will assume that the video evidence has been preserved for use in court and discusses the admissibility of the evidence at trial.
B. BWCs and a Defendant’s Right to Confront
If prosecutors attempt to substitute BWC recordings for live testimony at trial, the first objection that should pop into a defense attorney’s mind is the Confrontation Clause of the Sixth Amendment. Although the hearsay doctrine is important, no statement is admissible at trial if it violates a defendant’s right to confront, even if a state’s hearsay rules would admit it. Therefore, understanding this constitutional right is especially important following significant developments in recent Supreme Court decisions.
1. An Overview of Recent Confrontation Clause Cases
The Sixth Amendment of the United States Constitution mandates, “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . .” This “Confrontation Clause” imposes a general requirement that witnesses testifying against someone must appear in court to offer their testimony under the scrutiny of cross‑examination.3 Below is a brief summary of three modern-day cases that shape the current Supreme Court interpretation of the Confrontation Clause; however, this synopsis does not substitute for reading Crawford, Davis, and Bryant in their entirety.
- In Crawford v. Washington, Crawford was accused of stabbing the victim in front of Crawford’s wife.4 Police arrested and interrogated Crawford and his wife. At trial, Crawford claimed self-defense because the victim had a knife. Over objection, the judge allowed into evidence the wife’s recorded statement that contradicted his story.
- Finding this to be a violation of the Confrontation Clause, the Supreme Court abandoned the “indicia of reliability” test, overruling its predecessor Ohio v. Roberts.5 Instead, Crawford drew a line between testimonial and nontestimonial statements. Although they left “testimonial” undefined, the Court noted that the Confrontation Clause only applies to testimonial statements and offered a few examples of testimonial statements.6
- Since Crawford, the Confrontation Clause has required the declarant to be subject to cross-examination before any of that declarant’s out-of-court testimonial statements can be admitted at trial unless an exception applies. In other words, if testimonial evidence is at issue, then “the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.”7
- In Davis v. Washington, the Supreme Court took another look at the Confrontation Clause in two consolidated domestic violence cases.8 In both of the cases, juries convicted the defendants of domestic violence charges. Also in both cases, the victims failed to appear in court to testify, yet their out-of-court statements were admitted into evidence over Confrontation Clause objections.9
- These cases allowed the Court to distinguish testimonial and non-testimonial statements by looking at similar cases with an important distinction.
- In one case, Davis v. Washington, the trial court admitted the victim’s out-of-court statements on a recorded 911 call made by the victim only minutes before officers arrived.10 The victim told the operator that her ex-boyfriend, the defendant, “[i]s here jumpin’ on me again. . . . He’s usin’ his fists.”11 After arriving on the scene, officers “observed [the victim]’s shaken state, the fresh injuries on her forearm and her face, and her frantic efforts to gather her belongings and her children so that they could leave the residence.”12 The court admitted the 911 recording under the excited utterance exception to hearsay after finding the statements were non-testimonial.13
- In the other case, Hammon v. Indiana, officers responded to a domestic disturbance report and questioned the victim as she sat alone on the front porch. She and the defendant both denied that a physical altercation had occurred even though the officers found shattered glass on the floor from a recently broken gas heater.14 The officers separated the two and questioned the victim again. She eventually told the officer that the defendant assaulted her prior to their arrival. She then complied with the officer’s request to sign an affidavit with the allegations.15 Over objection, the trial court allowed the officer to testify to her oral statements under the excited utterance hearsay exception and admitted her written affidavit into evidence under the present sense impression exception.16
- Because these cases juxtaposed in an objective manner, the Court used them to guide trial courts in distinguishing non-testimonial statements from testimonial statements.
- Non-testimonial statements are those made when “circumstances objectively indicat[e] that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” The Court held that the first case, which allowed the 911 call of the victim during the altercation, was an example of non-testimonial statements. The Court found that the victim’s statements on the 911 recording were made to assist in the ongoing emergency—resolution of the physical altercation as it actively occurred. The Court noted that her statements were “speaking about events as they were actually happening” as she “call[ed] for help against [a] bona fide physical threat.” Therefore, the Confrontation Clause does not bar them.
- Testimonial statements occur “when the circumstances objectively indicate . . . no such ongoing emergency, and . . . the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” The example here comes from the other domestic violence case discussed above. There, the victim made accusatory statements in response to police questioning her on the front porch away from her assailant after the altercation had been resolved. The Court found her statements similar to those in Crawford because she faced “no emergency in progress,” and the interrogating officer “was not seeking to determine (as in Davis) ‘what is happening,’ but rather ‘what happened.’” Therefore, the Confrontation Clause bars the use of her statements at trial regardless of whether they were admissible under that state’s hearsay doctrine.
- The Supreme Court advised trial courts that “they should redact or exclude the portions of any statement that have become testimonial, as they do, for example, with unduly prejudicial portions of otherwise admissible evidence.”17
- These cases allowed the Court to distinguish testimonial and non-testimonial statements by looking at similar cases with an important distinction.
- In Michigan v. Bryant, police officers responded to a dispatch that a man had been shot in a parking lot.18 Upon arrival, officers found a victim with a gunshot wound to his stomach. In response to police questioning, the victim said, “Rick shot me,” and talked about where and how the shooting occurred, all of which incriminated the defendant. The victim died a few hours later, but the trial court allowed the officers to testify to the victim’s statements over objection.
- A majority of the U.S. Supreme Court held that the victim’s statements to officers were non-testimonial and therefore did not violate the Confrontation Clause. The majority used a combined factor approach to find the “primary purpose” of the interrogation and recommended that lower courts conduct the primary purpose assessment by “objectively evaluating the statements and actions of the parties to the encounter, in light of the circumstances in which the interrogation occurs.”19
- The majority held that the victim’s perception (clinging to life as a gunshot victim) and the officers’ perceptions (reacting to the threat of a potential armed suspect), together with all parties’ statements and actions, objectively indicated that the interrogation’s primary purpose was solving an ongoing emergency.20 Therefore, “Covington’s identification and description of the shooter and the location of the shooting were not testimonial hearsay.”21
- Bryant muddled any Confrontation Clause clarity that followed the consolidated, distinguishable cases from Davis. Also, Bryant threw in a hodgepodge of factors and dramatically widened the “ongoing emergency” exception, which now allows far more judicial discretion.22
2. Modern Confrontation Clause Applied to BWC Evidence
Bryant offers prosecutors a significant advantage over defense attorneys when witnesses—especially victims—fail to appear. Finding the interrogation’s primary purpose is highly context-dependent; the case encourages good prosecutors (and defense attorneys) to learn each of the factors listed in Bryant to compare any similarities to their facts. Before Bryant, BWCs would probably bring less evidence into trial, but the expansion of the “ongoing emergency” doctrine in Bryant has narrowed the protections of the Confrontation Clause.23 Defense attorneys should note that far more 911 calls are likely to be ruled admissible on a Confrontation Clause objection after Bryant.
Defense attorneys should note that crimes of domestic violence are often completed by the time officers arrive. If the conflict has been resolved, then defense attorneys should argue that there is no ongoing emergency, and any damaging statements are inadmissible under the Confrontation Clause.
Post-arrest reconciliation between the assailant and victim can cause problems for a prosecutor in the face of the Confrontation Clause, especially when a DA’s office has a no-drop policy. Prosecutors will probably examine the array of factors under Bryant to look for similarities to their case. Defense attorneys should look for ways to show that there was no “ongoing emergency,” and if there was an emergency, then it had dissipated prior to the declarant making the statement.
Applying Davis before Bryant, Texas courts would hesitate to admit statements made by an unavailable victim-witness in a domestic violence case unless the officers (and their BWCs) arrived before the brouhaha had settled.24 In Davis, the recently smashed appliances, the frightened wife, and uncooperative suspect were not enough to render the victim’s out-of-court statements admissible against the defendant. After Bryant, however, the ongoing emergency “factor” acts more like an ongoing emergency “floodgate” for admitting statements made to law enforcement, as long as prosecutors effectively utilize the factors listed in Bryant.25
3. An Unpublished Case Illustrates a Problem for Defense Attorneys
A recent DWI case in Texas illustrates the difficulties that defense attorneys should prepare for. In Sutton v. State, Christopher Downs, an off-duty police officer, called 911 to report a drunk driver and described “the motions of the defendant’s vehicle and how it was shifting across the lanes of traffic.”26 Officer Downs stayed on the phone with the 911 operator as he followed Sutton to his house. After Sutton parked in his driveway, the officer approached Sutton and asked him to sit on the curb. Sutton complied and talked with the officer—as the recording continued—until another officer arrived to arrest Sutton. At trial, the judge admitted the entire 911 tape over objection.
Finding the recorded statements non-testimonial, the appellate court affirmed Sutton’s DWI conviction because “Downs was describing an ongoing emergency regarding [Sutton’s] condition and a potential criminal offense in progress.”27 The facts of Sutton should disturb defense attorneys familiar with the contemporary Confrontation Clause. The opinion was brief, but classifying these circumstances as an ongoing emergency was almost certainly incorrect—especially when the obedient Sutton sat on a curb in front of his parked car long after the “ongoing emergency” was complete.
The onset of BWC technology will generate more ongoing emergency claims by prosecutors, but defense attorneys should still make specific objections to redact any absent witness’ statements on the audio recording that describe “past events potentially relevant to later criminal prosecution.” Judges tend to pay more attention to pretrial objections written in the following line-by-line format:
Time Stamp (approx.)
Officer tells D he “knows” D is lying
Confrontation Clause, Hearsay, Relevance
Witness says D hit her in the face.
Confrontation Clause, Hearsay
Even if they are overruled, this organized pretrial objection format allows you to respond “subject to the previous objections” when the video is offered instead of objecting repeatedly by the seat of your pants, which may result in accidentally waiving an appealable issue, annoying the judge, or losing credibility with the jury for repeatedly overruled objections.
C. BWCs and the Texas Hearsay Doctrine
This section focuses on the Texas hearsay rules relevant to statements captured by BWCs. Although hearsay objections often go hand-in-hand with a Confrontation Clause objection, defense attorneys should raise and address both objections when contesting the admissibility of an out-of-court statement. Preservation of error is key, and appellate courts will not automatically treat “objection, hearsay” as a Confrontation Clause objection (or vice versa) when considering whether error was preserved on appeal.
1. Overview of Texas Hearsay Doctrine Applied to BWCs
Hearsay has the inherent tendency to bring unfair prejudice, mislead jurors, cause confusion of issues, or evoke fabrication.28 The Texas Rules of Evidence define hearsay as any “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.”29
Rule 801(e)(2) allows admissions by party-opponents, so a hearsay objection will not exclude the defendant’s statements, but the officer’s statements may be inadmissible hearsay even when interacting with the defendant.30 BWCs will reinforce the impact of defendant’s admissions by eliminating the risk of misperception, exaggeration, and fabrication of out-of-court admissions.31 Although the cameras offer these important protections to defendants, they come with a cost: memorializing everything a defendant says even if the defendant was unaware of the BWC and decided to give a “profane” and “acrimonious tirade” to the officer.32
A recorded out-of-court statement at issue may fall into one of the hearsay exceptions in Rule 803.33 The Court of Criminal Appeals has noted that an officer’s statements can qualify as an excited utterance or present-sense impression, which are both discussed below.34
Rule 803(2) defines an excited utterance as a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”35 When examining a statement offered as an excited utterance, Texas courts look for three requirements, all of which must be proven by the prosecutor to use the exception:
(1) the statement must be the product of a startling occurrence that produces a state of nervous excitement in the declarant and renders the utterance spontaneous; (2) the state of excitement must still so dominate the declarant’s mind that there is no time or opportunity to contrive or misrepresent; and (3) the statement must relate to the circumstances of the occurrence preceding it.36
Rule 803(1) defines a present-sense impression as a “statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.”37 While excitement is the key to admitting statements under 803(2), the present-sense impression exception requires immediacy as its essential factor.38 Although the two exceptions overlap, the critical distinction is the requirement of contemporaneity.39 Theoretically, “the contemporaneity of the statement with the event that it describes eliminates all danger of faulty memory and virtually all danger of insincerity.”40 In other words, a present-sense impression offers reliability parallel to an excited utterance by replacing the excitement requirement with the safeguard of substantial immediacy.41
In Fischer v. State, the Texas Court of Criminal Appeals analyzed the present-sense impression exception in a split decision that may materially affect the admissibility of BWC evidence.
2. Fischer v. State: The Thin Line Between Reflect and React
John Robert Fischer (Fischer) had just pulled into his apartment complex when Officer Abel Martinez (Martinez) stopped him for not wearing a seat belt.42 Martinez smelled alcohol, so he asked Fischer if he had been drinking.43 With a candid but slurred response, Fischer admitted that he had consumed “three wines.”44 Martinez retreated to his vehicle momentarily to “dictate into his microphone that [Fischer] had ‘glassy, bloodshot eyes’ and ‘slurred speech.’”45 The officer “made four separate trips back to his patrol car” to dictate his observations into the microphone as Fischer performed, and subsequently failed, several field sobriety tests.46
After his arrest, Fischer moved to suppress the audio portion of the video as inadmissible hearsay.47 Although the trial court found it admissible under the present-sense impression exception, the appellate court reversed, with the Texas Court of Criminal Appeals affirming the reversal in a 5–4 split decision.48 The court held that any “reflective narratives, calculated statements, deliberate opinions, conclusions, [and] conscious ‘thinking-it-through’ statements” by a police officer are inadmissible.49 Because Officer Martinez strolled back to his police car several times to “reflect upon the event and the conditions he observed,” the court held that this “diminish[ed] the reliability of the statements and render[ed] them inadmissible.”50 The court discussed the inherent reliability of statements that qualify under the present-sense impression exception:
If a person observes some situation or happening which is not at all startling or shocking in its nature, nor actually producing excitement in the observer, the observer may yet have occasion to comment on what he sees (or learns from other senses) at the very time that he is receiving the impression. . . . [These] comments . . . have such exceptional reliability as to warrant their inclusion within the [present-sense impression] hearsay exception . . .51
Although Fischer v. State did not address body-worn video recordings specifically, the reasoning might open up a door to admissibility on body-worn video evidence. The Fischer majority did not allow the officer’s statements under this exception because of insufficient contemporaneity and the adversarial context of the interaction. However, only five of the nine justices agreed with the majority opinion, and the contemporaneous nature of BWC evidence might lead to a different result in a future case.
Until then, Fischer is a great case for defense attorneys. Prosecutors will likely attempt to use the present-sense impression exception to admit statements captured by BWC technology. Remind the court that “reflective narratives, calculated statements, deliberate opinions, conclusions, [and] conscious ‘thinking-it-through’ statements” are inadmissible under that exception.52 For example, during most DWI stops, the arresting officer usually lists off a litany of conclusions and deliberate opinions about the arrestee’s state of intoxication.53 Defense attorneys should fight to have these inadmissible hearsay statements redacted from the audio and make timely objections to specific statements to preserve error.
In the future, look for another article on BWC technology that will predict the categories of crimes most likely to see the evidence, offer considerations for practitioners, and discuss issues on preservation and policy for BWC evidence. If you have any questions or want to discuss my research in detail, feel free to email me at or reach me at 817-454-5965.
1. BWCs usually stay on the head, shoulder, or chest, but TaserTM also offers the Taser CamTM, which is mounted on the Taser to record a point-of-view from the weapon itself. See http://www.taser.com/products/on-officer-video/taser-cam-hd.
2. See Tristan Hallman, “Dallas police have first fatal officer-involved shooting captured on uniform-worn cameras,” dallasnews.com, 2014, http://crimeblog.dallasnews.com/2014/06/dallas-police-have-first-officer-involved-shooting-captured-on-uniform-worn-cameras.html/ (noting that both Dallas and Fort Worth police officers are using BWCs). The Dallas Police Department is field-testing BWCs with a plan of implementing them on 2,500 officers by the end of 2014, but Dallas PD acknowledges that a recent officer-involved fatal shooting in June 2014 is not the first one to be recorded by BWCs. See id. (noting another officer-involved shooting was captured by an officer’s personal BWC in 2010).
3. See Crawford v. Washington, 541 U.S. 36, 68 (2004).
4. See id. at 42.
5. Ohio v. Roberts, 448 U.S. 56, 64–66 (1980).
6. See Crawford, 541 U.S. at 68 (“We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’ Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.).
8. Davis v. Washington, 547 U.S. 813, 818–21 (2006)(consolidating Davis v. Washington and Hammon v. Indiana).
10. Id. at 817–19 (noting the only testifying witnesses were the two officers that arrived on the scene four minutes after the call).
11. Id. As the recording continued, “the operator learned that Davis had ‘just r[un] out the door’ after hitting McCottry” and fled the scene. Id. at 818.
12. Id. at 818 (quoting State v. Davis, 154 Wn.2d 291, 296 (2005)(en banc) (internal quotations omitted).
13. State v. Davis, 154 Wn.2d at 296.
14. Davis v. Washington, 547 U.S. 813, 820 (2006).
15. Id. The handwritten affidavit read as follows: “Broke our Furnace & shoved me down on the floor into the broken glass. Hit me in the chest and threw me down. Broke our lamps & phone. Tore up my van where I couldn’t leave the house. Attacked my daughter.” Id.
16. Id. at 821.
17. Id. at 829.
18. Michigan v. Bryant, 131 S. Ct. 1143, 1156 (2011).
19. See id.
20. Id. at 1160–64. Because the encounter happened “6 blocks away and 25 minutes earlier,” Justice Scalia argued that Covington’s statements “had little value except to ensure [Bryant’s] arrest and eventual prosecution.” Id. at 1170 (Scalia, J., dissenting).
21. Id. at 1167.
22. In his dissent, Justice Scalia listed the following factors he found in the majority opinion: “[T]he type of weapon the defendant wielded . . . the type of crime the defendant committed . . . the medical condition of the declarant . . . if the declarant is injured, whether paramedics have arrived on the scene . . . whether the encounter takes place in an ‘exposed public area’ . . . whether the encounter appears disorganized . . . whether the declarant is capable of forming a purpose . . . whether the police have secured the scene of the crime . . . the formality of the statement . . . and finally, whether the statement strikes us as reliable.” Michigan v. Bryant, 131 S. Ct. 1143, 1175–76 (2011) (Scalia, J., dissenting)(internal citations omitted).
23. See id.
24. See, e.g., Vinson v. State, 252 S.W.3d 336, 337–40 (Tex. Crim. App. 2008) (applying Davis to find no Confrontation Clause violation in admitting the 911 recording of a domestic violence before the responding officer arrived, but finding a violation in admitting the officer’s recitation of her statements after he arrived).
25. See Michigan v. Bryant, 131 S. Ct. 1143, 1175–76 (2011)(Scalia, J., dissenting)(internal citations omitted).
26. Sutton v. State, 05-10-00827-CR, 2011 WL 3528259 (Tex. App.—Dallas, Aug. 12, 2011, pet. ref’d)(mem. op., not designated for publication).
27. Id. (emphasis added).
28. Fischer v. State, 252 S.W.3d 375, 378 (Tex. Crim. App. 2008).
29. See Tex. R. Evid. Ann. 801(a), (d). Remember that the hearsay doctrine still applies to a declarant’s statements even if that declarant is testifying at trial. In other words, a witness’ hearsay statements do not become admissible just because they are testifying in court. Also, be prepared for responses on why certain evidence is “not offered for the truth of the matter asserted.” See, e.g., Cates v. State, 752 S.W.2d 175, 177 (Tex. App.—Dallas 1988, no pet.)(admitting bystander’s statement, “Do you need help?” because it was “offered to show that such a statement was in fact made” and not “for the purpose of proving the truth . . . that the officer needed help”).
30. Tex. R. Evid. Ann. 801(e)(2).
31. Cf. Kimball v. State, 24 S.W.3d 555, 563 (Tex. App.—Waco 2000, no pet.) (noting the officer’s uncertainty on the exact language of suspect’s “nursing a beer” statement).
32. See Meyer v. State, 78 S.W.3d 505, 507 (Tex. App.—Austin 2002, pet. ref’d)(admitting audio recording characterized as a profane and “acrimonious tirade” by defendant, despite his lack of knowledge that he was being recorded).
33. Fischer v. State, 252 S.W.3d 375, 379 (Tex. Crim. App. 2008)(noting that hearsay exceptions can be “roughly categorized into (1) unreflective statements, (2) reliable documents, and (3) reputation evidence”). BWCs require a police officer’s physical presence, which makes the “unreflective statements” category the most likely vehicle to admitting the contemporaneously recorded interaction. The “reliable documents” category seems applicable to BWC evidence under the “Public Records and Reports” exception, but Rule 803(8) specifically “exclude[es] in criminal cases matters observed by police officers.” Tex. R. Evid. Ann. 803(8)(B) (West 2011).
34. Fischer, 252 S.W.3d at 382. Rule 804 offers additional hearsay exceptions dependent on the unavailability of the declarant. Tex. R. Evid. Ann. 804 (West 2011). Other than the rarely used dying declaration exception, BWC evidence will probably not use Rule 804 as a path to admissibility. See Michigan v. Bryant, 131 S. Ct. 1143, 1151 n.1 (2011)(noting the Supreme Court has “suggested that dying declarations, even if testimonial, might be admissible as a historical exception to the Confrontation Clause”).
35. Tex. R. Evid. Ann. 803(2) (West 2011).
36. Kesaria v. State, 148 S.W.3d 634, 642 (Tex. App.—Houston [14th Dist.] 2004), aff’d, 189 S.W.3d 279 (Tex. Crim. App. 2006).
37. Tex. R. Evid. Ann. 803(1)(West 2011).
38. See Fischer v. State, 252 S.W.3d 375, 379 (Tex. Crim. App. 2008)(noting both exceptions originated from “res gestae,” an imprecise term describing statements “made without any reflection, thought process, or motive to fabricate or exaggerate”).
39. See id. at 380.
41. Id. at 378–81.
42. Id. at 376–77.
43. Id. at 377.
48. Id. at 387.
49. Id. at 381 (“‘Thinking about it’ destroys the unreflective nature required of a present sense impression”).
50. Id. at 381.
51. Id. at 380 (quoting Rabbani v. State, 847 S.W.2d 555, 560 (Tex. Crim. App.1992)).
52. Id. at 381–83.
53. Some examples may include the following: “You have no reason to refuse these tests unless you’re intoxicated,” or, “These tests are really easy to do if you’re sober,” or, “I let most people go, and I don’t arrest people unless I know they’re intoxicated.”