SCOVA just handed down Baez v. Commonwealth, holding that the trial court did not abuse its discretion by admitting police body-cam footage. While some of the analysis is context-specific–commercial litigators and PI attorneys maybe aren’t going to spend too much time worrying about the Confrontation Clause–the opinion does have a few points worth considering as video becomes more and more prevalent.

First, the Court held that the video did not implicate the Confrontation Clause’s prohibition on testimonial hearsay because it wasn’t hearsay in the first place. Baez argued that (1) the video was testimonial hearsay because body-cam footage is a medium intended to be used in litigation, and (2) the video’s content was testimonial hearsay because it was meant to assert the truth of the matter that the officer wearing the camera searched Baez and found drugs. The Court disagreed. It found that the body-cam footage was not an inherently testimonial statement automatically triggering the Confrontation Clause. Instead, as would be the case with an affidavit, it was the footage’s content that determined whether it was testimonial. Assertive intent is necessary for nonverbal conduct to qualify as a statement under the hearsay rule. Here, nothing in the content of the video qualified as an assertion of fact for purposes of the hearsay analysis. Viewing the evidence in the light most favorable to the Commonwealth, the video just showed a routine search incident to an arrest.

Second, the Court allowed an officer other than the one wearing the camera to authenticate the video. Photographs and video are generally admissible to to illustrate a witness’s testimony, or as an “independent silent witness” of the matters they record. A photograph or video that a witness verifies to fairly represent what the witness observed is admissible. And video is admissible as a silent witness when it is given an adequate foundation assuring the accuracy of the process of producing it. Here, another officer at the scene was able to authenticate the footage, even though he wasn’t wearing the camera and did not observe every minute of the search, including the key moment when the drugs were found. Authentication is just a threshold requirement to prove that the thing in question is what the proponent says. It does not have reach each moment of the video. The observing officer could simply testify that the video accurately represented what he saw. On top of that, he testified generally about the process of uploading body cam footage. That was enough to get the footage into evidence.

SCOVA handed down a fun published order recently in a local-government case, Rebh v. County Board of Arlington County. I know, right? But bear with me.

Rebh and a bunch of landowners challenged a land-use plan adopted by the County Board of Arlington County. (That is a very silly name, County County Board County.) The trial court sustained the Board’s demurrers to all three of the residents’ claims. On appeal, the CAV found in the residents’ favor on one of their claims: that the Board had failed to give proper notice under Code Section 15.2-2204, rendering its actions void ab initio. The CAV then purported to rule in favor of the Board on the residents’ two other, independent claims. These claims were, importantly, “analytically distinct” from the notice claim. They concerned the statutory resolution and certification requirements and uniformity requirement. (I do not know what these things are, but they sound very important and very, very boring.) Concluding that the trial court did not err in sustaining the Board’s demurrers to those claims, the CAV purported to “hold” that the Board did not violate the resolution and certification requirement or the uniformity requirement.

And so “[d]espite winning a complete victory on their primary claim,” the residents filed a petition for appeal to SCOVA challenging the second two holdings. From their perspective, that was totally reasonable, because the CAV made it clear that it meant for the rulings to have the presidential effect of resolving those issues if they arose in future proceedings.

SCOVA dismissed the petition for appeal. It explained that advisory opinions rendered on moot questions are beyond the scope of the judicial power. “Consistent with this tradition,” Code Section 17.1-411 allows only an aggrieved party to file a petition for appeal. The Court discussed Commonwealth v. Harley, 256 Va. 216 (1998), where the CAV ruled that a criminal defendant (1) had a constitutional right to receive a transcript, but (2) was not prejudiced when he failed to receive one. As such, it affirmed the defendant’s conviction. When the Commonwealth tried to appeal the first “holding” to SCOVA–on the theory that it was aggrieved by a published opinion establishing a constitutional right to a transcript–SCOVA disagreed. The CAV’s advisory holding about the constitutional right to a transcript was nonbinding, the Court explained, as it was rendered moot and advisory by the later holding that the trial court’s error was harmless. Whether the CAV described its constitutional ruling “as a holding or not, it was simply dicta.” While it might later be cited as persuasive authority, it would have no binding effect on lower courts, other CAV panels, or anyone else.

Similarly, in Rebh, the CAV’s second and third rulings presented a “dicta-qua-holding scenario.” Once the CAV ruled that the Board’s actions were void ab initio for lack of notice, there was nothing left for a Virginia court to do. By succeeding on their first point, the residents won the case outright.

If you’ve practiced law for more than five minutes, you’ve received a responsive pleading or set of discovery responses telling you that x or y document “speaks for itself.” This claim usually answers a question or allegation about that document, intended in good faith to clarify a party’s position. For example, a complaint might allege that Exhibit A is an accurate copy of the parties’ contract, or that Exhibit B gives the plaintiff this or that right. But instead of engaging the substance, the answer will just say that the document speaks for itself.

Not helpful!

Of course the document doesn’t speak for itself; it’s a mute sheet of paper, which is part of the problem. Even if we indulge the metaphor, we’re obviously trying to find out what it has to say.

So it cheered me up to see a panel of the Court of Appeals dig its teeth into a claim that “the document speaks for itself.” In Lorenz v. Parker, Clayton Givens died intestate and Rachel Parker filed suit to establish that she was his daughter. To that end, she sent a request for admission to the defendants, asking them to ““[a]dmit that the document attached hereto as Exhibit A is a true, authentic, accurate, and admissible copy of the DNA Test Report evidencing that Clayton Paul Givens is the biological father of Rachel Wetzel Parker.” The defendants responded that “the document speaks for itself.”

Not helpful!

At a bench trial, Parker tried to introduce this statement into evidence as authentication of the DNA test report, on the theory that it admitted the accuracy and authenticity of the report. The defendants argued that their response was “nonresponsive.”

Big problem here: Failing to respond to a RFA is the same as admitting it. And so the trial court deemed the request admitted. it found that the response authenticated the DNA report and admitted it into evidence.

The defendants appealed, arguing that at most, their response established the DNA’s report’s genuineness. The trouble, as the CAV pointed out, is that this was enough to authenticate the document, and the defendants did not point to another rule of evidence rendering it inadmissible. The defendants claimed that the report lacked a sufficient foundation, but did not say what else might be necessary to get it into evidence. “While [their] brief insinuates in some places that the court erred by not requiring expert testimony before the report could be admitted into evidence, [they] did not assign error to the court’s conclusion that the test was relevant and reliable enough to be admitted.” Once the report was admitted into evidence, it was up to the trial judge as fact-finder to determine its weight.

Moral of the story: Just answer the RFAs.

I’m always amazed at how people find new ways to lose appeals. Longtime friend of De Novo Monica Monday showed me a new one earlier this year: In two interlocutory appeals she was resisting, the petitioner missed the 15-day deadline for filing a petition for appeal. Because the Court of Appeals lacked authority to extend that deadline, the appeals were dismissed.

I’ll run through the issue a few potential solutions below.

To start, Code § 8.01-675.5(A) authorizes interlocutory appeals from a circuit court to the Court of Appeals, provided that the circuit court makes a specific, four-part certification. The statute then says that a petition for appeal may be filed within 15 days of that certification order, making no provision for extending that deadline. Rule 5A:12 governs petitions for appeal and other petitions for discretionary review, including petitions for appeal under Code § 8.01-675.5(A). It, too, specifies that the petition for appeal is due within 15 days of the trial court’s certification, and without providing for an extension of time. Rule 5A:3 explains that the time prescribed for filing a petition for appeal is “mandatory.” While the Rule allows the Court of Appeals to extend the deadlines for filing a notice of appeal, a petition for rehearing, or a petition for rehearing en banc, it affords no such relief for a petition for appeal. Instead, the deadline for filing a petition for appeal under Rule 5A:12 is a jurisdictional requirement. Long v. Commonwealth, 7 Va. App. 503, 506 (1988). “A petition for appeal that is filed after the deadline must be dismissed.” Chatman v. Commonwealth, 61 Va. App. 618, 627 (2013). 

Thus, it seems that the Court of Appeals lacks authority to extend the petition for appeal deadline under Code § 8.01-675.5. (The rules governing respondents are more forgiving. While the brief in opposition is due within 7 days of the petition for appeal, Rule 5A:13(a) allows the respondent to move for an extension of this deadline.)

Set aside, for a minute, that it should be impossible to miss this deadline: Code § 8.01-675.5(A) clearly sets out the timeline. Securing certification will require a petitioner to study that statute, and it is hard to see how they could miss the part about the deadline. Nor is the 15-day deadline particularly onerous. Assembling a petition for appeal will be relatively little work once the petitioner has gone through the process of securing certification, as the research and analysis needed for the petition will largely duplicate the work done to support the motion for certification. 

Even so, you can imagine things happening that would prevent even a diligent petitioner from making the 15-day deadline—the petitioner’s attorney could get sick, for example, or suffer a death in the family.

So what then? True, the petitioner can’t ask the Court of Appeals for an extension. But if they catch the problem before the 15 days run, they could ask the circuit court to suspend, modify, or vacate its certification order, which would presumably toll the deadline for filing a petition for appeal. After all, it preserve the trial court’s jurisdiction and tolls the deadline for filing a notice of appeal.

If more time has passed and the petitioner has already missed the 15-day deadline, they could ask the circuit court to recertify its order. Note that in the federal system, the circuits split over the efficacy of recertification. Most, including the Fourth Circuit, hold that recertification resets the 10-day petition deadline, though in more recent opinions the Seventh Circuit and the D.C. Circuit have disagreed. See Strange v. Islamic Rep. of Iran, 964 F.3d 1190, 1202 (D.C. 2020) (discussing split). The outlier Seventh and D.C. Circuits focus on SCOTUS’s “renewed emphasis on the federal courts’ lack of authority to read equitable exceptions into fixed statutory deadlines . . . .” Id. at 1198. For obvious reasons, that factor is less relevant in state-court practice.

Finally, they could wait until the end of the case, then appeal the circuit court’s final order. 

On Tuesday, the CAV handed down its opinion in Pegasystems Inc. v. Appian Corporation, reversing the largest jury verdict in Virginia history. Pegasystems is a trade-secrets case. The jury tagged Pegas with a verdict of more than $2 billion. (Fun fact: This case was tried in Fairfax at the same time as the Johnny Depp/Amber Heard fiasco, so the media was completely distracted.) The CAV reverses, with Judge Friedman writing for a panel that includes Judges Beales and Callin. I don’t have anything intelligent to say about trade secrets or corporate espionage,* but the Court’s treatment of evidentiary issues–particularly the excluded software evidence in Part IV–seems pretty compelling.

Given the stakes this opinion won’t be the end of the line for this case. It will be interesting to see if Appian petitions for rehearing en banc or just goes straight to SCOVA for a writ. An en banc rehearing would give Appian a chance of getting a dissent, which in turn would improve their chances of having a writ granted. And judging by the lawyers involved, money appears to be no object. On the other hand, this is the largest verdict in Virginia history, so the parties already have SCOVA’s attention. And speed could be important. Under Code Section 8.01-676.1, a suspension bond cannot exceed $25 million irrespective of the size of the judgment. So if Appian has concerns about Pega’s continued financial health or ability to cut a check for $2,036,860,045, it may choose to press ahead.

Finally, nice to see an amicus brief from longtime friend of De Novo and all-around genius Willy Jay.

* Unintelligent comment: It is objectively funny that Appian hired Pega’s head of competitive intelligence, whose job apparently involved spying on Appian. (At Pega, he literally hired a consultant with access to Appian’s products who he described as a “spy.”) In a twist we all saw coming, that hire led to this lawsuit.

Justice Kagan gave a fairly candid interview at the Ninth Circuit Judicial Conference on July 25. She touched on a code of conduct, separate opinions, collegiality, reading dissents from the bench, Chevron, and more. Pretty good stuff.

https://www.c-span.org/video/?537234-1/justice-elena-kagan-speaks-us-court-appeals-ninth-circuit-conference

Following up our last post, President Biden discussed his proposed SCOTUS reforms in an op-ed in the Washington Post today–basically, term limits, a code of conduct with an enforcement mechanism, and a constitutional amendment abolishing presidential immunity. The administration released a fact sheet on the proposals.

For what it’s worth, term limits and an enforceable code of conduct seem like no-brainers? I liked the proposal to promote all the federal Circuit Judges to Associate Justices, but I guess that was never going anywhere.