In the courtroom, footage from police officer dashboard and body-worn cameras is frequently utilized by prosecutors and defense attorneys alike in order to show officers’ interactions with victims, witnesses, and defendants. This footage provides a detailed, firsthand account of what happened during a police encounter, increasing transparency and accountability.

Dashboard and body camera footage is often admitted at trial to corroborate an officer’s version of the circumstances regarding an arrest. To that end, state and federal courts have acknowledged that this type of footage is a useful tool in verifying an officer’s testimony. See People v. Fenton, 2017 NY Slip Op. 51977 (N.Y. City Ct. Dec. 14, 2017) (finding officer “credibly testified and her testimony was corroborated by body camera footage”); Reyna v. State, 2017 Tex. App. LEXIS 6202, at *10 (Tex. Ct. App. July 6, 2017) (concluding that dashboard camera video corroborated the officer’s testimony that the traffic stop was supported by reasonable suspicion). Further, courts have found that assertions in affidavits—taken in connection with body camera videos and the officers’ accounts of what occurred—present accurate summaries of police interactions. See United States v. McKee, 157 F. Supp. 3d 879, 898 (D. Nev. Jan. 26, 2016).

Additionally, dashboard and body camera footage can increase police transparency and accountability, and the footage can be used by officers to dispel allegations that a defendant’s rights were violated. For example, in City of Topeka v. Murdock, a Kansas court found the consent exception to the search warrant requirement was met when body camera footage depicted the defendant telling the officer, “Well, come in.” City of Topeka v. Murdock, No. 116, 213, 2018 Kan. App. Unpub. LEXIS 12, at *7 (Kan. Ct. App. Jan. 12, 2018). In another case, a federal district court in Wisconsin held that a defendant’s Miranda rights were not violated where body camera footage showed that the defendant’s statements were volunteered, and not in response to questions from law enforcement. United States v. Kitchenakow, 149 F. Supp. 3d 1062, 1071 (E.D. Wis. March 2, 2016).

However, the use of body camera footage in a courtroom setting is subject to various rules of evidence and legal considerations. First, video recordings must be authenticated to be admitted as evidence, meaning a witness with knowledge of the contents of the recording must testify. Fed. R. Evid. 901(a). With body cameras, this footage is typically authenticated by testimony from the officer who drove the car or wore the body camera.

Further, before body camera footage can be admitted into evidence during trial, it will be subjected to at least three key considerations by the trial judge. For one, the judge will consider whether the body camera footage contains hearsay—a statement made outside of the current trial or hearing that is being offered into evidence to prove the truth of the matter asserted in the statement. Fed. R. Evid. 801(c). Hearsay is generally inadmissible unless it falls under an exception to the rule. Accordingly, while body camera footage itself is not hearsay, any oral or nonverbal assertions contained in that footage that are offered for the truth of the matter asserted must fall under a hearsay exception in order to be admitted into evidence. For example, if a body camera captures footage of the victim identifying the defendant, it may be admissible under the “out-of-court identification” exception to the hearsay rule. In re T.W., 8th Dist. Cuyahoga No. 105346, 2017-Ohio-8875, ¶ 18.

Second, trial judges must also weigh the probative value of body camera footage against its potential prejudicial effect on the defendant before ruling on its admissibility. Even highly probative evidence can be subject to exclusion if it significantly prejudices the defendant—for example, if the evidence induces the jury to decide the case on an improper basis, rather than on the evidence actually presented. United States v. Conner, 583 F.3d 1011, 1025 (7th Cir. 2009). However, courts frequently admit body camera footage into evidence as both probative of the issues raised at trial and not unduly prejudicial. For example, last year the Nebraska Court of Appeals rejected a defendant’s argument that a portion of the arresting officer’s body camera footage was unfairly prejudicial. State v. Reed, No. A-17-416, 2018 Neb. App. LEXIS 163, at *15 (Neb. Ct. App. June 5, 2018). The Court determined that the defendant’s statements made in the immediate aftermath of his brother’s death were highly probative and not unfairly prejudicial.

Finally, if the officer who wore the body camera is unable to testify in court, the footage may be inadmissible under the Confrontation Clause of the Sixth Amendment. The Confrontation Clause guarantees a criminal defendant the right to confront the witnesses who testify against him/her in the form of cross-examination during trial. U.S. Const. Amend. VI. Because body camera footage is communicative—much like an officer creating a written report—a defendant could argue that he/she should be afforded the opportunity to cross-examine the officer who wore the body camera. However, courts have yet to decide whether body camera footage violates the Confrontation Clause.

In short, although dashboard and body camera footage can be highly probative, its admissibility is not necessarily guaranteed. Courts will continue to grapple with the admissibility of footage that presents hearsay problems and constitutional issues. But officers can generally expect dashboard and body-worn camera video to be admitted into evidence and use it as a tool to corroborate testimony and justify their actions during encounters with victims, witnesses, and defendants. Crabbe, Brown & James, LLP Managing Partner Larry H. James has served as General Counsel to the National Fraternal Order of Police (FOP) since 2001. The National FOP is the world’s largest organization of sworn law enforcement officers with more than 350,000 members in more than 2,100 lodges across the United States.