Video Exhibits in the Jury Room

A recent case, State v. Bermejo, 476 P.3d 148 (Utah Ct. App. 2020), contains a useful discussion of exhibits and summarizes the approach taken in Utah courts. It is the subject of this column.

The Facts Summarized

Oscar Bermejo was charged with and convicted of, among other offenses, aggravated assault and felony discharge of a firearm associated with a drive-by gang-related shooting in Salt Lake City. On the afternoon of December 28, 2016, neighbors observed a black BMW slowly drive more than once past the house belonging to a family of known gang members, and one of the neighbors noted the BMW’s license plate number. In between the BMW’s trips past the house, an SUV stopped in front of the house. The driver left the SUV with one child while three other children remained in the vehicle. While the SUV was stopped in front of the house, the BMW again passed and this time stopped. A person exited the passenger side of the BMW, fired gunshots toward the SUV, and got back in the BMW before it drove away. One of the shots struck a nine-year-old boy seated in the BMW in the head. He was airlifted to a hospital for surgery and survived.

The police investigated the shooting, and the neighbor who had recorded the BMW’s license plate gave it to the police. It matched a black BMW registered to Bermejo. About an hour after the shooting, a resident reported to police that a black BMW had been abandoned near his house. A detective examined cell phone data, which indicated that approximately 25 minutes after the shooting, Bermejo’s phone had been in the area of the abandoned BMW. Police found Bermejo the next day and arrested him.

At trial, the prosecution relied on the evidence that Bermejo’s car was at the site of the shooting, the cell phone data, and a history of violent acts between a gang Bermejo belonged to and the gang to which the residents of the house belonged. The defense did not dispute that Bermejo was a member of a gang or the fact that his car was used in the shooting but asserted that two senior gang members took the car for the shooting and left Bermejo to explain how his car came to be involved in the shooting. Bermejo was the only defense witness, and his defense rested solely on the credibility of his testimony about the senior gang members. The jury convicted Bermejo on all counts.

The Issue on Appeal

Bermejo raised three issues on appeal, but the one that is relevant here is that the trial judge erred by allowing the jury to have access to a video recording of his police interview during deliberations. Utah Rule of Criminal Procedure 17 provided that

Upon retiring for deliberation, the jury may take with them the instructions of the court and all exhibits which have been received as evidence, except exhibits that should not, in the opinion of the court, be in the possession of the jury, such as exhibits of unusual size, weapons or contraband.

There were four separate references to the recorded police interview during the trial: (1) The prosecution introduced the video during the investigating officer’s testimony. During the interview, Bermejo denied having been in Salt Lake City at all on the day of the shooting and stated that his car went missing from Ogden where he left it at his friend’s house, and the friend alerted him to the missing car between 1:00 p.m. and 2:00 p.m. the day of the shooting. (2) Bermejo testified in the defense case that he was untruthful with police because he was afraid of gang retaliation and opined that it was safer to lie to the police than to be truthful about other gang members. (3) The prosecutor used the interview in closing argument to attack Bermejo’s credibility and to argue that he was lying at trial. (4) Defense counsel argued that Bermejo’s untruthful statements to the police were actually the product of fear because Bermejo was unwillingly “set up” by other gang members and was justifiably afraid of retaliation, given the “serious, serious world” of gang membership.

The Defense Argument and the Cruz Case

In arguing that the video recording should not have gone to the jury, Bermejo relied on State v. Cruz, 387 P.3d 618 (Utah Ct. App. 2016). Cruz was charged with sexual abuse of a child, and the prosecution relied upon video recordings of statements made by the child. The trial judge permitted the videos to go to the jury during deliberations. The court of appeals concluded in Cruz that this was error. It reasoned as follows:

Our supreme court has explained that “section (1) of rule 17 limits the material the jury may have with them during deliberation to ‘the instructions of the court and all exhibits which have been received as evidence.’” The supreme court has also stated that this rule “indicates that exhibits which are testimonial in nature should not be given to the jury during its deliberations.” The court thus held . . . that in a capital penalty phase “the transcript of all [prior] testimony . . . is admissible in oral form only and must not be introduced into evidence as an exhibit or given to the jury to use during deliberation.”

The law has “always excluded depositions and written testimony from being carried from the bar by the jury.” “A written instrument, made an exhibit in the [case] but not consisting of testimony of a witness in the case, may of course be taken to the jury room the same as maps, diagrams, and other exhibits. But the testimony of a witness is in a different category.” The court explained that the rationale for the rule sought to deny written evidence an “undue advantage”:

It may often happen that the testimony on one side is oral from witnesses produced before the jury, while the testimony for the other side on essential matters is in the form of depositions or in the transcript from testimony at a previous hearing. If the hearing lasts for any length of time and the jury takes the depositions or transcript to be read and discussed while the oral evidence contra has in a measure faded from the memory of the jurors, it is obvious that the side sustained by written evidence is given an undue advantage. The law does not permit depositions or witnesses to go to the jury room. Why should a witness be permitted to go there in the form of written testimony?

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Here, the State argues that the video recordings were exhibits and therefore were properly allowed into the jury room; Cruz argues that the video recordings are testimonial in nature and thus should not have been allowed into the jury room. We agree with Cruz.

Our courts have described a video recording of a child’s police interview as “recorded testimony,” and as “video testimony.” A recording of a child’s interview taken by police for the purpose of prosecuting crime, which is then introduced at trial and subjected to live cross-examination, constitutes, for purposes of this rule, testimony—or, at the very least, falls within the category of “exhibits which are testimonial in nature” and thus “should not be given to the jury during its deliberations.”

The concerns expressed . . . 77 years ago about “written testimony” apply with equal force to video recorded testimony. Whether a statement is recorded on paper, on magnetic tape, or on digital media, the same rule applies. A video recording of this type poses the same danger of undue emphasis as would the transcript of the witness’s live trial testimony. Accordingly, the rationale for excluding written records of oral testimony from the jury deliberations applies with at least equal force to video records of oral testimony or its equivalent. As the New Jersey Supreme Court noted, “replay of a video recording is tantamount to having the witness testify a second time.” “The video recording is the functional equivalent of a live witness, and can be particularly persuasive.” That court concluded that “under no circumstances shall the jury have unfettered access to audio- or video-recorded statements in the jury room during deliberations. Replay in open court permits the required record of the replay to be made.”

We emphasize that this rule does not apply to all video recordings; many video recordings shown in court are not testimonial in nature and so would ordinarily be permitted in the jury room unless they “should not, in the opinion of the court, be in the possession of the jury.” (Internal citations omitted)

The court of appeals rejected Bermejo’s claim of error and distinguished Cruz and prior cases. It reasoned that, while the law is clear that prior testimony by a witness should not go to the jury during deliberations, the video recording in this case did not involve a witness against the defendant; it was a recording of the defendant’s own statement, and that made all the difference.

Distinguishing Cruz

This is the first Utah case to address the question of whether videotaped statements by the defendant can be given to the jury during deliberations. The court cited a number of cases from jurisdictions holding that video recordings of out-of-court statements by a criminal defendant may be provided to the jury. The court found the reasoning in Carter v. People, 398 P.3d 124 (Colo. 2017), to be particularly persuasive. The Colorado Supreme Court concluded that the trial judge did not abuse discretion by allowing the jury to access during its deliberations a video of the defendant’s custodial interrogation and observed that confessions or out-of-court statements by criminal defendants have typically been allowed in the jury room. The Colorado Supreme Court explained that

[i]n addition to having probative force for reasons more related to the adversary process than any narrative or testimonial value a defendant’s detrimental out-of-court statements may have, allowing the jury access to exhibits evidencing such statements simply does not implicate the same danger of undue emphasis inherent in permitting the jury access to some, but not all, of the testimonial evidence. Unlike testimonial evidence, the accuracy and veracity of which must be weighed in conjunction with all of the other admissible evidence, a criminal defendant’s out-of-court statement offered against him has value primarily as demonstrative evidence of conduct on his part that is contradictory of a position he takes at trial.

Stating that it was persuaded by Carter and decisions by other state courts, the Utah Court of Appeals concluded that “a defendant’s recorded, out-of-court interview is not testimonial for purposes of determining whether to allow the jury to have access to it during deliberations.”

The court of appeals accurately observed that both the prosecution and the defense agreed that Bermejo’s statements in the interview were not credible. Then, the court added that “rather than being introduced as testimony, Bermejo’s police interview primarily was introduced and used as an admission and a prior inconsistent statement.” The court’s bottom line was as follows: “We agree with the district court that Bermejo’s police interview was not testimonial evidence. Accordingly, we conclude the court did not err, under rule 17 of the Utah Rules of Criminal Procedure, by allowing the jury to have access during deliberations to the video.”

Parsing the Court of Appeals’ Reasoning

It is interesting that the court pointed to some 70 plus years of holdings that recorded “testimony” should not be given to the jury during deliberations despite the fact there is nothing on the face of Utah Rule of Criminal Procedure 17 that says anything about testimony. And it is unclear exactly what qualifies as “testimony.” In the Cruz case, which the court distinguished, the victim’s mother took her to a hospital and then called the police. This is what followed:

A police detective interviewed Child [the victim] at a Children’s Justice Center (the first CJC interview). The detective conducted the interview in both English and Spanish. During the interview, Child told the detective that on the day of the alleged abuse [what Cruz did to her].

The following week a police officer conducted a second interview with Child at a separate Children’s Justice Center (the second CJC interview). The officer conducted the interview mainly in Spanish. In the interview, Child explained [what Cruz did to her].

The prosecution wanted to use only the second interview, but Cruz insisted that both be shown to the jury. It is readily apparent that the victim’s statements in both interviews were not given in a deposition or its equivalent, and the victim was not “testifying” as that term is generally understood. The victim was making statements that were hearsay but qualified for admission under Utah law.

So, is it the case that all hearsay statements that are recorded must be kept from the jury during deliberations? It is true that hearsay declarants are “witnesses” who can be impeached and attacked. But hearsay statements generally are not treated as testimony unless they fall within an exception like former testimony.

Recall that the court of appeals stated that “Bermejo’s police interview primarily was introduced and used as an admission and a prior inconsistent statement.” (Emphasis added). A defendant’s statement that is admissible as an admission (or under Federal Rule of Evidence 801(d)(2)(A) as a party opponent’s statement) is hearsay. It is admitted pursuant to an exception or exemption from the hearsay rule.

So it appears that Bermejo had a point in saying his case was not so different from Cruz after all. Hearsay statements were admitted in Cruz, and hearsay statements were admitted in Bermejo.

Going forward, there will be a host of issues that can arise, particularly in a world in which police often have body-worn cameras and witnesses have cell phones with cameras. It is not at all clear how these issues will or should be resolved.

Suppose at the scene of an assault, police interview and videotape a frightened witness who recounts what she observed. In addition, suppose the statement by the witness is an excited utterance that is admissible as an exception to the hearsay rule? Is the videotaped statement testimony that cannot be given to the jury during deliberations?

What if the witness is present in court and testifies to some contradictory facts? Does the recorded statement go to the jury even though the witness’s live testimony will not? Does that raise the possibility that the hearsay will be given greater weight than the trial testimony?

One way to think about Bermejo is that sending the recorded statement to the jury could not prejudice either the prosecution or the defense because they agreed that the statement was not credible. But that is not completely convincing because the prosecution was arguing that the jury should decide that Bermejo lied to cover up his crime while the defense argued that he lied out of fear of gang retaliation. In other words, each side wanted to use the recorded statement differently. Given the fact that both sides used the recorded statement in their case-in-chief and in closing argument, it seems possible that the statement might have been extremely important during jury deliberations and that its presence in the jury room might have had greater impact for the prosecution than for the defense.

Cruz made the following point and did so emphatically:

The concerns expressed . . . 77 years ago about “written testimony” apply with equal force to video recorded testimony. Whether a statement is recorded on paper, on magnetic tape, or on digital media, the same rule applies. A video recording of this type poses the same danger of undue emphasis as would the transcript of the witness’s live trial testimony.

If this is correct, is there a distinction between the hearsay statements in Cruz and the defendant’s statement in Bermejo? The answer is less than clear despite the Utah Court of Appeals’ effort to draw a line between the two.

One final question: Is it permissible to admit a criminal defendant’s recorded statements and send them to the jury but not the recorded statements of other witnesses? What about the interviewed witness whose recorded excited utterances are favorable to the defense? There seems to be something unfair about sending in a recorded statement by the defendant that the prosecution desires to put before the jury and excluding a recorded statement by a favorable defense witness that the defendant desires to put before the jury.

Conclusion

Deciding which recorded statements of witnesses should be part of a jury’s deliberations requires addressing the questions raised here. Bermejo made an effort to provide answers, but additional guidance will be needed as other courts address the same questions.