While a picture is often said to be worth 1,000 words, according to the Seventh Circuit, a video recording is no statement at all. In United States v. Wallace, the government introduced a dark and fairly ambiguous video purporting to show Wallace buying drugs. The video was taken by his nephew working as a paid DEA informant, but by the time of trial, the nephew had recanted his testimony against Wallace in an affidavit and refused to testify for the government. The DEA nevertheless played the video without sound and a DEA agent testified as to what he thought it showed.
Wallace objected – arguing that it violated his constitutional right to confrontation to introduce the video in the absence of the nephew. The Court disagreed, holding that the video was not a “statement” for purposes of FRE 801(a). It was not “intended . . . as an assertion” and was “not a ‘statement’ the maker of which could be ‘confronted’ to test the ‘statement’s’ accuracy.” Wallace had the opportunity to cross-examine the testimony of the DEA agent interpreting the video, and also the opportunity to call other witnesses to counter that testimony. As a result, his constitutional rights were preserved, and the video’s admission was proper.
Defense counsel take heed: DEA agent voiceovers to silent movies are kosher, and it is your burden to disprove their interpretation.