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.