U.S. v. Dunn 8 - A Meaty Legal Issue

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:26 Thomas: Gavel in, Gavelinos, it's gavel time, it is sandwich trial numero ocho, I am Thomas, that over there is Lydia, how are you doing?

0:00:34 Lydia: Hi, it's gavel o'clock. I have not had a sandwich. I don't know what to do. I need to leave and get a sandwich? I don't know what to say. It away, Matt.

0:00:44 Matt: Did I have lunch? Did I have lunch um I

0:00:47 Thomas: Has been working, burning, I'm going to say all three ends of the candle, has got, it looks like a triple candle, but

0:00:49 Lydia: My God. Yeah. Truly.

0:00:53 Matt: I've been working a lot but I'm still excited to come on a Friday and hang out with you guys and uh eight and we really get to number wow we are making a meal out of this sandwich a lot to talk about here

0:01:02 Lydia: Got a

0:01:02 Thomas: It is a meal.

0:01:02 Lydia: Drink and a cookie? Mm -hm. Bag of chips?

0:01:04 Matt: It's right yeah we did not get the the meal deal on the transcript but uh otherwise

0:01:11 Thomas: Yeah we got some interesting legal issues to talk about this time right it

0:01:18 Matt: I so and I think it's interesting You know, as we've been talking about before, that in the middle of this fairly pedestrian, straightforward assault trial that never should have happened, that we get kind of an interesting media legal issue, something I've never quite seen before. And know, we've kind of teased it and how this is working and what's going to be happening here, but set the stage here and talk a little bit about why this matters, because it's going to seem probably pretty technical and finicky to maybe people who aren't lawyers or maybe some kinds of lawyers. Um

0:01:45 Thomas: Has to do with how you fold the meat if you fold it like the wrong way it's it's a worse sandwich like it actually makes a huge difference flat meat gross you it's about the aeration

0:01:57 Matt: Order of the events and the condiments you know just by how you layer things

0:01:59 Thomas: There's way more to it than people think. So we're going to get into all that.

0:02:02 Lydia: Why they're artists.

0:02:02 Matt: That's right that's are legal sandwich

0:02:04 Thomas: That's why they go to sandwich college.

0:02:04 Matt: Artists that's right yeah uh fun to get into with uh this body-worn camera and finishing up detective henry's testimony as the other witness on the scene that night for the events so uh yeah let's get into it

0:02:17 Thomas: Yeah, going to be an interesting legal issue. We will take our first break and then we get to hear Lydia be grilled some more on the stand. A grilled Lydia sandwich. All right, well, support the show, patreon.com/gavelpod. Thanks so much to those of you who avoid these annoying ads, get the extras and all that and support the show. All right. We'll take a break and then we'll get into it.

0:02:47 Thomas: Okay. Well, I have about we left off. I don't know. Do we want to just hit play again or do we need to refresh?

0:02:54 Matt: Let's just remember where we left off was at lunch I believe actually about 12 off 30, appropriately enough.

0:02:59 Thomas: And that isn't a joke. That's just what it is.

0:03:02 Lydia: That's just time.

0:03:02 Matt: That really was. The jury was going to lunch. And do remember actually reading the coverage at the time that the jury did get sandwiches for lunch on both days.

0:03:08 Thomas: Was going to say, it would just be so funny if everybody simultaneously is like, like subconsciously, God, I just really could use a sandwich.

0:03:09 Lydia: On both days. Wow. It's subliminal messaging. Mm

0:03:16 Thomas: Yeah. Meanwhile, yeah. Meanwhile, Subway's like, this is great advertising. We need to get somebody to throw a sandwich which at law enforcement all the time.

0:03:13 Matt: Is a subway around here? I

0:03:17 Lydia: Big Subway. Really? It's funny you bring that up. Has like, leaned into this at all? I feel like, man, missed opportunity, you guys. Wendy's would have been all over this. You guys have seen their social media.

0:03:31 Thomas: Well, have been such cowards in the wake of Trump too.

0:03:38 Matt: Might be a little touchy after having previously been associated with a sex criminal.

0:03:42 Lydia: Fair.

0:03:42 Matt: Maybe they don't want a possible felon.

0:03:44 Thomas: On the other hand, you can only go up from there, you know?

0:03:47 Matt: Yeah, sure. Sean Dunn is certainly a much better spokesman every way.

0:03:51 Thomas: Sean does a spokesman against the sex criminal in the White House. Come on, it's the redemption, Subway.

0:03:57 Matt: True. That is true.

0:03:58 Thomas: Eat fresh, come on, get on it.

0:03:58 Lydia: Eat fresh, Exactly.

0:04:01 Matt: The jury was released to their sandwiches at 1230. And we're going to pick it up with legal arguments about the body worn camera. And just to remind everybody, and we'll talk a little bit more after we listen to some of this, but the defense is going to be objecting to the admission of a body worn cameras because Detective Henry was not wearing that camera. It was worn by somebody else. And she was not present and at the time when the statements that the government wants to admit were made by Sean Dunn, in which he admitted having thrown the sandwich. And as we've talked about before, this is fairly incidental since they have him throwing the sandwich on video, but it's always nice to have a confession on top of everything else. He does make a direct confession. So of course the government want that in. Could do it without it. And if it had been excluded, it would not have been at the end of the world. I think they would have gotten a quotable anyway, way, but know, either way.

0:04:43 Thomas: The government didn't need this to get the acquittal that they got

0:04:44 Lydia: To lose. Yeah, they didn't need this to lose.

0:04:45 Matt: That's right. That's right, but think this is such a great example of the kinds of small but important issues that can come up in trials unexpectedly because this wasn't supposed to happen. Witness The was supposed to be present to testify as to somebody who was sitting there through the entire interview that would have been able to say this is what happened on this video, but we don't have that person, so we're going to talk about how to manage that, and the court, as you're goingto see, is just trying to get through this, but obviously in the way that's fairest to everybody. All

0:05:10 Thomas: The has had to do a lot of pretending to care about this so yeah well I have more questions but we can listen first

0:05:15 Matt: It's true. Yeah, let's get the setup.

0:05:19 Clip: Hold on. Your Honor, objection. I get it. We're doing authentication still. Sure. Okay, do you want to move for admission of the video based on what we've seen so far, or lay more foundation? I would move. I was trying to be extra careful. Yeah. I believe we do have a sufficient basis. Here's what I would like to do. I promised everyone we would be done for lunch at about 1230. It seems to me the best thing to do is to take a recess to let the jury go, and we can have a discussion with just counsel about any issues that might arise. We will work that out, and then we will be most efficient with the jury's time. So let's excuse the jury until two, okay? We'll start with that. Okay, we can excuse the witness. I don't think it matters one way or the other. Thank you. Why don't you step out of the room? I don' t think we'll need you back before two. In the off chance we need you just now, you can stand outside. Thank you. I

0:06:14 Thomas: Just gotta say I sympathize so much for lydia in this moment because I would have heard that and been like, wait, do I need to stay or do I not? You're like, well, we don't need me. I can go to lunch. But then you're like but in case you need me, stand right outside the door.

0:06:28 Lydia: Case we do. Yeah yeah

0:06:30 Thomas: Add attention.

0:06:29 Matt: Stand outside, hungry, unfed.

0:06:33 Thomas: Yeah. I would be I would have been like I can imagine being that would have just been like so yeah, just like do I do it? Is it okay to like butt in here? Can I? Okay.

0:06:34 Lydia: You get it. Which one. Yes.

0:06:46 Thomas: I'll just go.

0:06:46 Lydia: Judge.

0:06:47 Thomas: Goes, I'll just grab my Subway sandwich and just eat it right outside the door. I'll just be right. They open the door, I'm like sitting cross-legged, like just on the floor eating my sandwich.

0:06:54 Matt: Just your spread.

0:06:56 Thomas: Also, I need this judge to decide whether or not witnesses have to leave the courtroom. Like every time he's like, I don't, I think they could stay. I think they can go. I have no fucking idea. It's my first day.

0:07:07 Lydia: I know why it wouldn't just be like standard that you'd have them leave, too. Like they don't need to be there. Why why in the world in what world would Dana Henry have to stay there for this conversation?

0:07:15 Thomas: All the hedging like who who does it matter to if he if makes her leave and then they're like well she could have would have been fun if she was there yeah

0:07:26 Matt: J. Nichols may have some attachment issues. I don't know what's going on here. I'm going to talk to your therapist. I do want to set this up about where we're at because we mentioned the authentication. That's what we're going to be going into, to. And Julia Gowda is going to be objecting to the entire admission of the video. I know there's two issues here, and we're going to hear them both discussed. But the judge, you can tell already from the way that he's made these comments before releasing the jury, he's not too concerned about authentication. He believes that Detective Henry has authenticated this video by saying, I was present. I saw that the recording began. At the time that I left, it was still running. This is standard practice. And that authenticates the video because you've got somebody who can say this is a standard use of a police video. Ideally, you'd want to authenticate this if the person who took the video isn't present with either the IT person who would usually handle the

0:07:28 Lydia: Yeah so interesting yeah yeah

0:07:28 Thomas: It's weird yeah yeah

0:08:08 Matt: Records for these things or somebody else who might have somehow seen it. But I think the IT person would have done better, but expect to have to do any of this. I

0:08:16 Lydia: I they could have even had like an affidavit or something right from an it person not necessarily them on the stand but just submitted that oh really interesting

0:08:21 Matt: Have objected now

0:08:22 Thomas: Because you have to have people in the courtroom right yeah but

0:08:24 Matt: Evidence. I don't think you could do that on paper.

0:08:27 Thomas: So how galaxy brain do they let you get you know because like imagine I just for fun I I know I I'm sure it's a big country there's lots of wackos I'm sure this happens sometimes imagine you've got the body cam video or some video and something doesn't have to be body cam obviously just kind of an evidence question right imagine you have a video they've authenticated part of it but then you maybe know it's the rest of it was altered you because he said well she was there for the beginning of it that means the whole thing's good or is it just presumed that like chain of custody type whatever like they just presume that it's going to be the same exact video yeah

0:08:58 Matt: Yeah, like I said last time, this is what I would call a kludge because they really should have the person records come in and say, this is one of our standard body cam footage videos. I have looked at the file and I see that it has not been altered since it was uploaded, right? And that would be the best way to do it.

0:09:10 Thomas: So they should do do that all

0:09:11 Matt: Mean, remember Michael Cohen in the Trump trial insisted on having, or the defense insisted on having a whole witness on his phone to verify that it hadn't been messed with when they were Of course, they were just directing everything, but just for context.

0:09:21 Lydia: Gg patrons will know about that because all that stuff's available on patreon .com slash gavel pod yeah we

0:09:29 Matt: One, disarm trial. Question, I think there's serious issues here, but it's not serious enough that it would, I don't think, be reversible error. And she knows that, but she's going to do her job and object to the authentication. Then you have to lay the foundation to show that it's admissible as evidence, and we'll see how she starts to do that. And the has a real issue here too, because you're talking about somebody who's never even seen this video before who wasn't present for the thing that happened. So we'll get to that when we get to them, but let's listen a little more about authentication.

0:09:56 Clip: Want to hear from the defense on its objection. Your Honor, I'm a little confused, and I might need some clarification from the government. What are the timestamps that, one, they're trying to authenticate with Detective Henry, and two, that they are seeking to admit? If I could have those, I'm not sure this particular portion was noticed to us, so we had a lot of conversation. So I want to make sure that we're all talking about the same thing. Part of the additional questions the the government was going to ask our foundation. I think we established it is what happens here, and we are interested in a statement that takes place in about a minute. Right. What happens is Detective Henry enters the station with the defendant. You're trying to authenticate and have admitted the entire BWC footage. There's a portion this witness was present for, so you think, therefore, it's authenticatable. It is the same video, even though this witness wasn't always present. So what is your response to that? So do you agree the BWC is authenticated at least to those portions the witness timestamp she can say I was there Okay, what makes it not authenticated after that? She cannot say she has no personal knowledge So that objection is overruled. It is the same video same BW see same officer who this person knows was wearing the B WC and Observes herself on the video the rest of it the entire video even this next minute it, she is not present for, is, in my view, sufficient to authenticate it. So that objection is overruled. Your Honor, the next portion they're going to show, maybe it would be helpful for the record if you could say the timestamps. It's government's exhibit 3002 -C. Okay, they can admit it, but they cannot ask this witness any questions since you've already overruling my objection. Right. When the government moves for the admission of this BWC clip, I will admit it over your authentication objection. Yes, so

0:11:44 Thomas: I gotta say matt just you read along because this was where and I'm sure you are yeah we're getting confused because the transcript was off in a few parts in terms of the names and it seemed weird that like the lydia lawyer was like kind of saying stuff that it was like oh wait is the judge saying that but then it wasn't so we got it right

0:11:47 Lydia: Were getting confused yeah Yeah.

0:11:52 Matt: I'm looking at it. Yeah, obviously, when she says something and then she says correct in the next line, that can't be the same person. She's just calling herself correct.

0:12:06 Thomas: Right when somebody's answering yeah correct yeah exactly right

0:12:08 Matt: Yeah, it does seem like you've got it right from what I've heard so far. Do yeah I'm watching a little confusing

0:12:12 Thomas: But just keeping an And I an ear on that because it yeah, it seemed like she was I guess the way she was talking was like rhetorical questions that. It made it really confusing as to was it the judge? Was it the way so, you

0:12:25 Lydia: Also, I this probably happens all the time, but just sort of like planning out with counsel in the court. Okay, you're going to raise this. I'm going to overrule this. And then we're going move on like and then proceed.

0:12:36 Thomas: It's like pro wrestling.

0:12:37 Lydia: Seed

0:12:37 Thomas: It's fake. I'm so disappointed, you Know, yeah, then you're going to chokeslam me. I'll pretend it really hurt.

0:12:38 Matt: Totally kayfabe in the courtroom yeah the heel today yeah

0:12:45 Thomas: Yeah. Oh, your honor. I wanted to win this time.

0:12:51 Matt: No I mean this just makes sense for efficiency and so that you're not causing chaos in front of the jury that like this is how it's going to go for the record and like you know we'll move on um all kind of predetermined but

0:13:00 Clip: Okay, they can admit it, but they cannot ask this witness any questions since you've already overruling my objection. Right. When the government moves for the admission of this BWC clip, I will admit it over your authentication objection. Yes, so now we will talk about what the government can do with the video when it is a minute after what we've seen here. Correct. They can't do anything with this witness who has no personal knowledge of that statement that they are attempting to elicit. Okay, what's the government's response to that? We're not going to ask this witness about any of the substance, just some transitional questions. You know, what happened? Are you intending to play that minute with this fitness? No, we are not. Okay, so you are going to try to establish what happened and what you know about what happens in the next minute, but you are not going to play the purported omissions? But I guess I misspoke. This is what we plan to do. They split. We only plan to play that clip. In that clip, our witness is not present, but she recognizes the room. She can say she sees the defendant walk into that room, and that's, you know, where her personal knowledge ends about the defendant. And then we would play the video or show the picture, you know, the first screen. Do you recognize that room? Yes, I'm familiar with that room. I've been to that station. That's the room behind that door. If we play the vidéo, she wouldn't comment on the video. I'm sorry. They're playing the video with audio or there's a still shot to identify the inside of the precinct. I missed it. No, I think they're going to ask her at this point, do you understand where you are going using something like the still? She says yes my understanding is they're going back to book him or whatever and they are not asking her any questions about what happens thereafter but they are going they intend to play the video after this but not ask any questions to play an exhibit that is admitted with a witness who has no personal knowledge yes yes that's what they're planning to do I still object to this it's it's not the proper witness to play a video which in essence the testimony right is being admitted as mr dunn's statements same as party opponent being brought in through through a witness who has no personal knowledge, was not there. I understand the authenticity. That I've lost on. But they still need to lay a foundation with this witness in order to play the exhibit and ask any questions, including, is this the inside, during the statement that they are trying to elicit. What is your response to that? So

0:15:22 Matt: Just want to make sure we're caught up on everything that just happened here because this is a very important part of it um government is explaining about how they're planning to lay the foundation because obviously authentication is done her ever ruled they're finding it's an authentic video but now we have to show that it's something that can be admitted that it'S admissible and

0:15:25 Lydia: Real

0:15:39 Thomas: Because there's a different question just for us non -lawyers. It's one thing to be like, it's authentic. There's all kinds of authentic evidence that nonetheless wouldn't be allowed because of evidence reasons, which are so confusing to.

0:15:43 Lydia: Or fake yeah yeah right right

0:15:48 Matt: I mean, I could authenticate the World Book Encyclopedia, the entire thing, and I could try to put it in, but we got to find something relevant here. Witness, of course, the question is, she accompanied the Officer Thandie, who was taking the camera footage, and Officer McDonald, who is with them, who supposed to testify but had the eye problem. She accompanied them to the point that he was booked. And then it's kind of funny how he says they split, which sounds like a very 1950s way to say it, but I think he just means that they they went different directions.

0:16:15 Matt: They totally split like a banana. Explaining that they're going to lay the foundation for this to show why it's admissible by having the witness say, I see myself in that video. I know that's where I was, and I recognize the station. And that's why they're asking about, you're basically going to freeze frame it. I knew exactly where in the precinct station this is, and that it would be consistent with the rest of this that he would would have gone in to have this interview where he did. And that's what happened. It's a little weird. Gatto has every right to object to this because this is a really important statement that he's going to make. It is very much against his interest. And you want to be absolutely certain that you know who was around for this video being taken. You want to make sure it's not out of context. They're only going to play a minute or so. I think they're going to skip ahead. So it is sketchy. I mean, I certainly see it. It's not that important, but it's really really, ultimately, for the purposes of justice, it's very important we get every detail

0:17:02 Matt: Right.

0:17:02 Thomas: Let's say it was important. If you were on, I don't know, either side of this, like would what you expect this to work? It does seem weird. I just have no context for like, should this work?

0:17:11 Matt: I can imagine a in which this is the only evidence there is, his confession on video, and that could become a real reversible error if the judge just lets it in willy -nilly. So see this being an interesting appellate issue if it had reached that point.

0:17:24 Thomas: So my question is, would you expect this work or not? Would you expect the evidence to get in or not get in?

0:17:29 Matt: Think in that kind of a case that they would probably have asked for a continuance to bring in either witness or the authentication witness who can confirm that the footage hasn't been messed with.

0:17:34 Thomas: To get the witness. Yeah, true. So what about when a judge does something that's kind of for convenience, it might not be the letter of the law, but it's like, well, for the sake of like a speedy trial and the, you as it long the kind of thing where you could try appealing on it, but then, you are the appeals court might be like, eh, wouldn't have made a difference.

0:17:50 Lydia: This is still reasonable kind of thing yeah Yeah.

0:17:58 Matt: Has to be prejudicial and actually make some sort of material difference to your case. Like this where it could be an abuse of discretion, and I think I'm going to be telling you about the Massachusetts case where I think it really was an abusive judge's discretion to let it in when it's something that's important. Important. But I think he knows at this point where the wind is blowing and that this is not going to make or break the case. You've already seen the video of the guy doing it. So the video of him telling you that he did it isn't going to be as important. So I think He knows this is not going to Be a reversible error and he just wants to move the case along. But you can imagine if this were a murder case and this would be the only evidence you'd be fighting this probably all over the place. And I think maybe the government probably would try to postpone to come up with a better way to admit all this because you don't want to base a murder case on a video taken by somebody who's not there to actually talk about having interviewed the person.

0:18:45 Matt: So it really is very contextual. Now we're getting to the government's going to explain the foundation.

0:18:50 Clip: So first, I mean, we move to have the body -worn camera footage entered into evidence at this point. It will be admitted. I will admit it, and I will state to the jury that it is admitted. And then it may be fair if, rather than the full body -worn camera footage comes in, just a clip like the relevant part. Fine, we can clip that. The question is whether you can play a portion of the BWC, including the defendant's statements, an admitted video clip, but with a witness who wasn't present for that. The evidence is already in, and the witness will just testify to what is there. Basically identifying the room, that's it. Not testifying to the substance. Not testifying to the statements, but, you know, that room is the processing room beyond the door. So it puts, like, a temporal piece on it, and I think helps explain to the jury the context. A

0:19:39 Thomas: Am I wrong it kind of feels like he's being like oh you know and then what if some you know a confession fell off the back of the truck or something yeah he's gonna say she's gonna say that that's the room yeah that's that is a police place uh and then whoops we left the tape going for a little longer it's like kind of sounds like it

0:19:45 Lydia: It feels really shifty. It feels so shifty?

0:19:58 Matt: He's setting it up about how she can verify that this is the station and this is what would have happened. When he says it puts like a temporal piece on it, guess maybe because she's going to say that I saw them go into the the room immediately that it wasn't three hours later, I guess. Maybe that's what he's trying to say.

0:20:12 Thomas: I guess

0:20:13 Lydia: Yeah, what exactly does that help explain to the jury?

0:20:16 Matt: Because you're seeing an out-of-context clip without knowing exactly. And we do have a timestamp on it, so I have the explanation of how long it was.

0:20:21 Lydia: There's just no there's no way though that that only seeking to be like yes that is the room where we process people that we've arrested yeah

0:20:29 Thomas: And I he was confused when he's like, oh, we'll just do a little clip. Like, it almost seemed like he was trying to say that they weren't going to do the confession part or something. It was weird. Well, we will see what Lydia Lawyer thinks. Thanks.

0:20:36 Lydia: It's bizarre

0:20:40 Clip: A couple of things. I just want to make clear, they're only seeking to admit this timestamp portion. You were saying body -worn camera. You're saying just that portion. It's just for clarification, mine and the record. There's a government's exhibit. It has a number. Yes. It has a particular set of minutes covered. It's the BWC. It's admitted. The only objection I've heard so far is that it is inauthentic. I've overruled that objection. It is therefore admitted. Your Honor, I want to make clear the portion we just showed her is not the number. There is the BwC, the whole video. Yep. How about this? I get that. I'm sorry. I don't mean to interrupt. This is separate from my objection. I want the record to be clear. I understand. I am saying the BWC, whatever this clip is here, 27 to 38 minutes long. Yes. The government, let's just call it a number that's going to be admitted. The only objection to the BwC is authentication, as I understand it. That's what I'm trying. It's my fault we're not making it clear. We have other objections. To other parts of the Bwec? Exactly. Sorry, I get it. The authentication objection is overruled.

0:21:46 Clip: As to the whole Bwc, We now have to think about whatever the specific clip is the government wants to admit. What exact timestamps does the government seek to admit? We actually have it as a separate exhibit, 3002 -C. Okay. I anticipated other objections. As the court said, it is, we are okay with entering that clip, which is 3002 dash C. What are the timestamps? It starts at 2352 -18. Is everybody writing this down or do you know it? I have it. Okay, so you know what they're talking about. Well, I don't. They keep saying the number of the exhibit. I know, 3002 -C. I know what they want to show. What is happening in the colloquy is, one, we are talking about a longer clip, and we're talking about what we just showed her to authenticate. This is not the exhibit we are taking about. I understand that. I understand. Now they're saying that we just show her a portion leading up to the clip that they want, and now they want admit this clip, right? Based on the fact that the court has said that it is authentic. Now they want show the clip she hasn't seen, arguably she hasn' authenticated, but I understand I'm overruled, to elicit statements that are said not in her presence and they are going to ask some questions that somehow ties it to her based on the room, which has no relevance

0:21:46 Lydia: Know

0:22:56 Clip: Here. And it's prejudicial because the jury is going to be left with the impression that Detective Henry either elicited the statement or took the statement or somehow is adopting the statement.

0:22:57 Thomas: Ties the room together.

0:23:07 Matt: This is a good point. Is important. So I know this is quibbling to what might seem like a pretty extreme degree, but she's making the point about how, okay, you're saying that is being admitted, but now we have to object to the specific clip that the government's trying to object because it's out of context. We don't know what the context is and the jury could be left with the impression that any number of things were done or said before we got to the point that he was admitting this or the defendant has something to do with it. That'll make sense. So she's just trying to get this narrowed down for the record so we know exactly what is being admitted and why, which timestamps, and what exactly we're going to be showing the jury. This is all really important defense stuff.

0:23:40 Thomas: Yeah, I still get I get confused on the like, OK, it's admitted. A sense in which I think the lawyer kind of says this where it's like once it's admitted, isn't it? Whatever. You know, like you just if it's admitted, you you just use it or

0:23:54 Matt: It being used with this witness in this way. And what he's admitted is the entire BWC. I think he's saying he finds it to be authentic and it's admissible for

0:24:00 Thomas: I think my confusion and this is I always think I have this and I don't. Every time I thought think my confusion was I thought to get it admitted you already had to go through that part like it had to be admitted through the witness who would already be able to do that yeah

0:24:15 Matt: Is saying, the only objection I've heard so far at this point in the argument is that it's inauthentic. I've overruled that. It's going to be admitted because I believe this is an authentic body -worn camera. And now she's going to be objecting to sure they lay a foundation to be able to use it with this witness in this context, and that it is relevant evidence, and that is fully admissible otherwise. So the evidence itself is admissible and can be used, but you've got to bring it in through the right witness in the right way.

0:24:37 Thomas: So okay so in a trial we could have a trial just hypothetically again speaking of these rules of evidence that are always so confusing you could have a trial where something got admitted as evidence like it was admitted but then it maybe never ever sees the light of day. Like, could that happen?

0:24:52 Matt: Yeah, well, you can imagine a situation where there's like, I don t know, the IT guy is testifying about surveillance camera footage and you just pull out the murder weapon and you're like, hey, does this look like the murder weapon to you? What would that guy know? The murder weapon's not on the camera. Something like that that's just completely irrelevant to that testimony.

0:25:08 Thomas: I have to assume you got the murder weapon in before. Like that's the part that's killing me is that it's already I think if the judge had said, OK, the objection is overruled, then let's go from here and not just therefore it's admitted. I think that kind of confused me because I thought you should have a chance for some more objections. But is maybe the for one, One, I think maybe there might be some miscommunication or I could just be wrong. Let me know. But also, is it that maybe they thought like, oh, it was just this particular clip. So like the selection that the Lydia is actually there for that. That's good. Lydia is saying, well, yeah, but you can't. That doesn't mean you can get the whole thing in through this witness, does it?

0:25:11 Matt: Evidence, right.

0:25:51 Lydia: Is it that like they're trying to just of treat them as two separate pieces of evidence like the first is just yeah the first one is like the whole thing like here's here the entire thing we we're admitting it based on authenticity, that this thing exists. So, yes, it is admitted because we agree that it's authentic. Now, here's the separate piece of evidence, which happens to be a clip from that larger piece of evident. That's what we're going to focus on. And that's where the fight's going to be at this point.

0:25:56 Thomas: Like different clips or something.

0:26:08 Matt: And you because it is a separate exhibit potentially. And you can imagine a situation where the government wants to take a five -second clip that's completely out of context and just dump it into the record and not show the jury anything else, right? That could happen. He's already isolated the clip he wants to use as dash C so that that's its own piece of evidence. And again, this is all kind of preliminary. He's saying as a preliminary matter, I find this is authenticated evidence and we can use it at trial, but you're still going to have to lay the foundation. And they did with Detective Henry already, as I recall, they did have her testify some of this and she's going to be saying more of it. But everything talking about leading up to the point that they can have her at least say that she was there when it was turned on and that she walked into the station with them. We still have to show that you're not doing something that's more... It still has to be more prohibitive than prejudicial, as we say, right? So that you can't just dump in evidence, like I said, that is out of context or that makes them look really bad for no reason. This might make a little more sense as we go on here. Can see

0:27:06 Matt: The confusion.

0:27:06 Thomas: I probably won't, but it's OK.

0:27:16 Lydia: That you're trying to present like security footage, like like a robbery or something happened and like Like, you to admit the security footage, but you're not going to have someone, you there and testify related to the six hours of security footage. You're going to make them testify to the specific clip of the security footages. Like, yeah, yeah.

0:27:35 Thomas: But usually it would be like somebody who's like from a technical standpoint can say,

0:27:39 Lydia: I don't disagree with that. I guess, like, my hypothetical there is just trying to, like tease apart the full body -worn camera being admitted as a separate piece and then the clip.

0:27:47 Thomas: Another thing I was thinking along those lines, maybe we're thinking along the same lines is like, I guess sometimes you might admit like, OK, this entire, I Guess, conversation or something, say, or I don't know, some text evidence. But that doesn't mean like, okay, therefore, we're going to show every part of it to the jury. Right. Like you might be able to fight about like, Okay, well, not this part.

0:28:06 Matt: And no reason to show the jury the whole thing. Obviously, that'd be a waste of time, but there's also good reasons not to show the jury 10 seconds of it versus the one minute or whatever. And

0:28:16 Lydia: So it's like balancing that context versus you know efficiency and relevancy right

0:28:22 Matt: A really fascinating microcosm of evidence generally and what judges have to do on the fly all the time when they're looking at this kind of stuff. But the argument that she just made at the end when prejudicial because the jury's going to be left with the impression that she either elicited the statement or took the statement, or somehow adopting the statement. And that was my concern as soon as I saw what they're trying to do here, is you're making it seem like this is a witness that has some special knowledge of the conversation that happened with Dunn. And of course, she doesn't know anything about it. She wasn't there. That's the whole problem.

0:28:46 Lydia: Even if you're not like directly saying that you're kind of implying it gotcha

0:28:50 Matt: Yes. And you're putting the imprimatur of the police on it, so it's extra important.

0:28:54 Clip: We can be clear about that. I still believe that this witness, to testify about something she hasn't heard, is improper. So, okay, I understand. Stand. I take it that the problem with admitting just the whole BWC, even though I believe the whole BwC is authentic, is that you have other evidentiary objections to other portions of it. So the government is trying to be responsive to that by eliminating as many as it can of those other evidentuary objections and getting to the portion that it wants to show them. And then we have just the objection as to behavior there is to the snippet. Again, the whole thing is authentic. There are statements, whatever they may be, all sorts of evidentiary objections. Other than the fact that this witness doesn't have personal knowledge of what's stated in this 3002-C clip, do you have any other objections to the government asking questions about essentially what leads up to, like where are they going, establishing she doesn't go in with them, and the like? And then beyond that, do you have any other objections? I believe it is irrelevant. What is the relevance objection? That it's not relevant to this witness's testimony. It's relevant to the trial. It's admissible in that way. It is also party admission. You are just saying it is not connected enough to this witnesses testimony to not satisfy some sort of general requirement that Evans has to be played in the presence of a witness who knows something about it. The question they are going to ask her in order to get this before the jury is not relevant. Relevant. Right, right, right. I'm not sure I agree with that, but in any event, the objection is overruled. I think for a lot of reasons. First of all, I believe the whole BWC is authenticated, so the objection generally

0:30:35 Thomas: We got that.

0:30:36 Clip: To the authentication is overruled. I Think the way I would like to proceed is to have her make crystal clear on direct that she, the moment they pass through the door isn't there doesn't follow it's not her bwc she is not there for the statements but

0:30:36 Lydia: We get that judge

0:30:39 Thomas: Who is this asshole? So she has to sing that Radiohead song, Matt. That's not me. She has to do the whole song. What was that one called? I know you're a Radiohead fan. Yeah this isn't happening. Yeah how did this she has to she say I'm here and then we split man we totally split out of there and then he did then she's saying performs how to disappear completely and then we're good

0:30:59 Matt: This isn't happening. Yeah, that's a great one. Yeah, yeah, yeah. That's a great song.

0:31:11 Clip: You can play the video thereafter look I get it's the government's burden but I'm quite confident that if we really really really had to get there we could take someone who apparently is having somewhat of a medical emergency and get her on the phone or video or in person to duplicate the testimony about what happens on that video and I'm just not prepared to do that at this time But we can do it if we need to. So when the jury comes back at 2, when you move through the admission of 3002C, if I'm remembering the numbers correctly, I'm going to admit it, but we are going to be crystal clear with the jury about what it is and what it is not. See everybody at 2.

0:31:54 Clip: Thank you. Let's recall the witness, please. Welcome back, Detective Henry. You may sit. Just a reminder, you remain under oath. Yes, sir. Your Honor, Governments Exhibit 3002 -C, we... You are moving its admission? Yes, yes. And I am granting that motion for admitting... Correct. Governments

0:32:13 Lydia: Can you pause? It's like terrible

0:32:14 Thomas: Dude be chill come

0:32:16 Matt: Wheels are coming off.

0:32:16 Thomas: On let me do it yeah

0:32:17 Lydia: Pretend acting that they're trying to do for the jury right now. So bad.

0:32:22 Matt: Going off script.

0:32:23 Lydia: Yeah. You are moving its admission and I am granting that motion for admitting.

0:32:23 Matt: Kind of rushing it. Surprise.

0:32:27 Thomas: I mean oh oh which one one.

0:32:33 Lydia: Oh boy. All right. I just needed a moment there. You can keep going.

0:32:35 Clip: Governments exhibit 3002 dash C is admitted and may be published to the jury. Now, I just have a few questions for you, and I'll orient you. You indicated that you were involved in the transport of the defendant to the local police station, right? Correct. And you had an occasion to review Officer Thandie's body -worn camera footage, right? Objection, Your Honor. Is asked and answered the objection? No. Are we leading her through this, or are we... Well, you didn't object earlier when he asked that question. It's been established. That's all he asked just now. Okay. If you have an objection to his having asked... No, I'm not objecting under that, no. Okay. Well, then what happened from the time you went from the garage to the station? Pull that microphone up. There we go. There's a report-writing room in the precinct, so at that point in time, I went there to begin the report. Officer Thandie took the defendant into the processing room, where he would be fingerprinted and held until the report writing is done. Then he's in the citation release, where he's to report on his own recognizance. Basically, you went right, Officer Thandy went left with the defendant. Objection, Your Honor. Sustained. Surely there is a question that is appropriate here?

0:32:38 Thomas: Don't really have to act like it's... It

0:33:44 Matt: Love

0:33:45 Clip: Where

0:33:45 Matt: That. I have to stop for a second. I just think that's very funny.

0:33:46 Thomas: Took me a second to get to that reading. I hope it was the right one because, yeah, he just didn't ask a question. He just said, just testified, right?

0:33:52 Matt: And we haven't established the geographical, geographical you know spatial locations of things right you're just throwing that out there right right I understand he's saying that sort of colloquially that you know you went different directions but you know use

0:34:05 Thomas: You split. Your Honor, you split. It's the legal term we discussed. Yeah.

0:34:10 Matt: Uh totally split yeah yeah yeah

0:34:13 Thomas: Youse guys went that way and youse guys went that away.

0:34:16 Matt: So now he has to ask a question but I really appreciate that that gentle nudge of surely there's a question you could be asking yeah

0:34:23 Clip: Where did the defendant and Officer Thindy go? You indicated you went to work on the processing? So I went to the report writing room. They go to the processing room. And showing you government's exhibit, have you been to the processing room before? Yes, several times. Were you in the processing room with them? No, I was not. And if I could show you just the first screen of 3002-C, do you recognize that room? Yes. And what is that? That is the processing room. I have no further questions at this time. With the court's permission, we would like to play the video. You may. With the volume. Actually, pause it for a second. Sorry, we had an issue with the volume. I think we're good now. Please play.

0:35:05 Clip: I think the volume was a little low. If we could play it one more time, so we... Can you crank it?

0:35:10 Thomas: Wish we had the tape.

0:35:11 Clip: Let's go it only one more times. Let's get the audio so people can actually hear it. Thank you, Your Honor. You're welcome.

0:35:21 Thomas: And there we go. That's the end of the direct.

0:35:22 Lydia: End of direct

0:35:24 Matt: Yeah sadly we do not have the audio that we can play for you but he

0:35:27 Thomas: So I have to imagine that's just him playing. Yes, I did it. I threw the sandwich, you know, like 17 different. I was a little louder. Couldn't quite make out.

0:35:34 Lydia: He gets to play it like seven

0:35:36 Thomas: Did it I threw the sandwich I did it I threw the salad you know that kind of

0:35:37 Lydia: Times Yeah. Do you think, like, the volume situation, like – is that a little purposeful, like trying to get it to play multiple times?

0:35:46 Thomas: At least one of it was like I feel like you know maybe the volume was off the first time yeah

0:35:51 Matt: I'm sorry, Your Honor, I couldn't hear the part where you said, I threw the sandwich. Yeah. Is what it is. It is a confession and we're having some AV problems, but now I guess they heard it.

0:36:01 Lydia: Going back a teeny tiny bit with that exchange between defense and the court about the objection where she's – you know, objection, Your Honor, is asked and answered the objection. And then the court's like well you didn't object earlier when that same question was asked um don't know. It just seemed like a weird interaction there is all.

0:36:18 Thomas: I know the thing is like if you don't object you you pretty much lose it right but there I can imagine there's times where like, Matt, is there ever a time where you're like, oh shit, I meant to, uh, did she say, uh, hold on, I might've misheard. Did he ask where something, you know, he'd come up with like a similar question that you misheard to try to sneak in the object. Oh, well I would have objected had I been able to hear that.

0:36:41 Matt: Right if that's what he said. The timing of an objection, it's kind of nerve wracking about when you want to interrupt. And I'm very polite person. I don't enjoy interrupting people.

0:36:46 Thomas: Matt's actually never objected to anything. He's a a terrible lawyer I don't know if we told everybody this

0:36:54 Matt: I object all the time.

0:36:54 Lydia: He raises his hand like waiting to be called on.

0:36:57 Thomas: The trial's over everybody's left and the judge is like mr cameron do you uh yeah I had an objection to um the opening statements yeah that's

0:37:06 Matt: Might be surprised to learn that ICE is pretty objectionable. So I

0:37:11 Thomas: True yeah once you once you're dealing with those assholes I'm sure you can turn it on

0:37:11 Lydia: That's fair. Fired

0:37:15 Matt: Be a lot less polite in court. I still don't really change my tone of voice, but I can being a lot less less polite. This is an interesting thing though, where she's, think she's sort of instinctively, this is a knee -jerk objection. This is just like, I need to say something because I know that we're still having foundation issues. And the court is kind of impatiently saying, so you're objecting because he's already asked this question. And she didn't also, typically when you give an objection, you want to try to add what you're doing with it, unless it's incredibly obvious. So objection asked and answered would have been something, but I think he's sort thinking through, and we've seen her do this on her feet before. For. She's basically saying, are we going to take her through this all again? And the court said, you lost your chance to object to this. It's been established. And, you withdraws. We don't really ever find out what was going

0:37:15 Lydia: Up. Yeah. Right, right. Right.

0:37:53 Matt: On here.

0:37:54 Thomas: So so are you saying you don't even really necessarily know what her objection was or I

0:37:57 Matt: Yeah, she just seemed to be concerned that we're going to go through the whole thing again, I guess. I don't know. When she says, are we leading her through? Are we? And then it gets cut off. So we don't even know what she's objecting to.

0:38:07 Thomas: I just feel like she was still wanted to make her evidence objections like because she hadn't made them like in yeah

0:38:13 Lydia: I mean, after all of that conversation with the court, she never actually says anything during the presentation.

0:38:15 Thomas: I I feel like he did yeah I feel like she wasn't sure when to do it or something I don't know am I off what do you think yeah

0:38:24 Matt: Yeah I mean, she's going to have the chance to cross so she can bring out some of of the things she's objecting to anyway, about how she doesn't know anything.

0:38:30 Thomas: But I guess once it's already out you know cat's out of the bag right hmm weird happens

0:38:34 Lydia: Interesting.

0:38:34 Matt: Video's been played. It's true. So as we were saying, this is not the smoking gun. The smoking gun is the fact that we have an actual video of the man committing the crime, but it always helps to have a confession. But if this was a kind of place where this is the only case where the only evidence, you can see how this argument would be heightened. Yeah, no, sure. Sure. And I want to tell you about a Massachusetts case, which is much more dramatic and weird than this. And Casey brought this to my attention. I was talking this through and basically asking how she would handle this, my partner who's a Massachusetts prosecutor. And she was saying what I said before, that it would be unusual to have something like this happen where you wouldn't actually have the keeper of the records. She this happens a lot with surveillance, where you have to bring in the person who manages the surveillance equipment to say this is a valid surveillance tape. Even if all people who are on the video aren't available to testify, and this is sort of taken on the ordinary course of business, and this ist how our surveillance cameras work and everything else. Usually with body -worn cameras, this is not an issue because the officer is going to be available or somebody around. This is just a very unusual situation. But she was telling me about this case, Commonwealth v. Connolly from 2017, and I got kind of obsessed with it after I read it. And this is one of those weird things that just happened, and it shouldn't have ever happened. And

0:38:58 Thomas: Every day probably yeah

0:39:51 Lydia: Connolly

0:39:51 Matt: I know it's a Commonwealth, Commonwealth of

0:39:51 Lydia: V. Connoly? Oh, I thought you said Connoley. OK,

0:39:56 Thomas: I thought we had a I a Kramer versus Kramer situation.

0:39:56 Lydia: Got it. Got it. Kramer versus Kramer. Exactly. With body -worn cameras.

0:39:59 Matt: I'm a divorce case.

0:40:00 Lydia: Wow, this is going to get really dramatic.

0:40:01 Thomas: Billy Connolly and Jennifer Connoly.

0:40:03 Matt: Super expensive custody case. So this series of events, this whole case, I mean, okay, it's all about the case. In a lot of the ways that our gavel gavel cases are just always a little funny. Talking about, I think this is some kind of like a maybe lower rent place or boarding house or something, but there's a shared bathroom and the David Connolly, is accused of shoving an elderly woman who also lived there and she fell to the floor. So it's not funny that he shoved an elderly woman, but apparently they had some kind of beef. He claims it was a total accident and he was coming out and she into her basically. And this would be an easy thing to prove if you had a video. The problem is that the officer goes to watch the video and apparently the officer investigated this. I got to be honest, the officer investigated this more than sexual assault cases I've reviewed.

0:40:23 Thomas: Already love it. Taking a really, no. Yeah, no,

0:40:30 Lydia: Disgusting. Oh no queen

0:40:38 Thomas: Sure. Yeah what the hell?

0:40:56 Matt: I can

0:40:57 Thomas: Was she the queen or something?

0:40:59 Matt: See maybe getting kind of, she's probably like a darling old lady and he just kind of got into the case and wanted to protect her.

0:41:00 Lydia: Elizabeth's just yeah I

0:41:07 Thomas: And maybe this was this person a person of color or something. Thing police are like no there's no end of the resources that we have sure

0:41:10 Matt: Yeah, I don't know.

0:41:15 Lydia: Don't know I mean like elder like abuse and stuff like that is like pretty serious but

0:41:16 Thomas: Why

0:41:17 Matt: And he was only charged with straight assault and battery. I think a pretty simple straightforward thing. A &B in Massachusetts, rarely if it's the first offense, is going to carry jail time. I think most of the time it's going to be up to a year and it has to be pretty serious for just a simple A and B where there's no aggravating factors. So the thing happens when the officer goes to review the video with the supervisor of the building or whatever.

0:41:38 Thomas: Is there video okay so just random surveillance video in the bathroom okay okay like we set it up because we're trying to catch the mystery shitter that keeps ruining the thing

0:41:41 Matt: It's a hallway outside. So, and between the time when the office or watch that video and the time of trial, the video was erased. Raced. And that sounds like a whole Karen Reid conspiracy, but it is not.

0:41:58 Thomas: Very convenient sounds like that officer might be the shitter the plot thickens yeah

0:42:05 Lydia: Whoever smelt it dealt it

0:42:04 Matt: But the judge found and the appeals court agreed that the had nothing to do with it. It was just a total accident that it was recorded. It wasn't recorded over basically, no fault of the common wealth, they just didn't hold onto it.

0:42:17 Thomas: Taped seinfeld over it yeah yeah

0:42:19 Lydia: And they don't Know Until They Press Play like in the trial

0:42:22 Matt: That'd be very funny.

0:42:26 Thomas: I think it's after this hold on well this is a good episode let's let's watch this and then

0:42:29 Matt: This is, is this the one where he shoves an old woman?

0:42:33 Thomas: On the right move we watch it

0:42:33 Lydia: I for this to be admitted

0:42:36 Matt: What happens is we're in a situation now, I mean, honestly, what should have happened at this point is the Commonwealth should have just dropped it, or they should have just negotiated pretrial probation or something, but they were really intent on prosecuting this. They've got an officer who has no previous knowledge of this defendant. So he can't even, and this becomes an issue in the appeal as well. So he couldn't even say for sure, this is this guy, because he's never seen him before. He's just seen him in the courtroom, right? So that's a real problem for authentication and for just relevance of this video. And it's a hallway video. Who knows how clear it is or whatever. But what you've got is a guy who's going to be describing to the jury a video that he saw once months ago that no one else has seen. That's clearly bad. That's just really bad as a matter of basic deep process and justice. Like, it's really bad to have this happen.

0:43:16 Lydia: One else has seen wow

0:43:15 Thomas: Like it's a meme yeah yeah yeah I love the officer be like and then he was all oh and then she was like and she fell over and he was like oh I did it I also took all those shits and no one knows who it was and it was definitely not that police officer

0:43:37 Lydia: Your honor permission to act out the video

0:43:42 Matt: And was like this, and she was like this. Yeah. I mean, should have been admitted. This is obviously a huge authentication problem because no matter how honest you think this officer is, you're still talking about a human describing a video. You're going to leave things out. You don't know that's the defendant it for sure. You can't even authenticate the original video because it doesn't exist.

0:44:02 Matt: The defense has never seen the video, which is supposed to be the purpose of discovery.

0:44:06 Thomas: Yeah wait

0:44:07 Lydia: Just feels like like that should just be in a shit out of luck situation yeah like like if it's gone it's done you're done you know yeah shit out exactly oh

0:44:08 Thomas: The defense never saw it but um yeah

0:44:12 Matt: It's unfortunate about the shoving, but this is not a murder. They're treating this like they have have to go after this hell or high water and the judge I mean a patrol motion is quoted here and it's never good it's usually never good when the appeals court is quoting the judge verbatim that means they're about to say something bad about her we don't know the quality of the video we don'T know whether well I assume there would be some testimony perhaps about whether it was black or white or in color whether it was from a significant distance whether there might have been other cameras available yes

0:44:31 Thomas: Sorry let me ask you are you saying this person got convicted and then it was appealed all the way did I did I miss that okay okay well that sucks wow yeah

0:44:46 Matt: And that's what he said. Didn't care for it. She decided that she was going to wait to determine the admissibility of the officer's testimony at trial instead of just excluding the testimony, which honestly seems insane to me. The only witness against him is the officer. I'm not sure, maybe the old lady passed or something. Maybe she wasn't competent to testify. I've not really sure. It sounds like she might've had some mental to health issues potentially from reading this. The whole story about he shows up that night because he's been called in. He talks to both parties. He determines at the time that it appeared that it was an accident. So we've already got a problem, right? The first time he investigates it and we don't have a video to look at, his first impression was it was an accident. And then they the video, and they decided after watching the video that maybe it wasn't an accident, the defendant gave his complete account of how he walked down the hallway, he was looking away, he didn't realize she was there, and accidentally knocked her down. And his description of the video is that there's no audio in the video but it appears they're having some sort of shouting match. So again, appears, we don't know what they're saying to each

0:45:07 Thomas: Did

0:45:46 Matt: Other, we have no idea of the context. And then Mr. Connolly walks back toward Mrs. White and shoves her to the ground. And that was his testimony. Yeah. Again, and the defendant obviously, as is right, chose not to testify or put on any witnesses. There were no other witnesses available. The And, officer said the defendant walked maybe 20 or 30 feet down the hall and then came back to her and used two hands to shove her. Then on redirect, he reiterated that he saw the defendant walk up to White, lift his arms, and push her. And then the defense, obviously on cross, asks all about, you know, what was the angle of the video? How well could you see it? What was the quality of the audio? And just like, and it's a black and white thing facing straight down the hallway. Maybe you can't see everything. But this is a circus. This is obscene. Like, you should not be doing

0:45:52 Thomas: It's way different huh no one should trust cops that much it's just such a bad sign for our society

0:46:28 Matt: This. Or anybody.

0:46:30 Lydia: I I will say like like my gut reaction is I actually like believe him and And it does sound like that's probably exactly what happened, but also without having it there, I don't think that's right either. So yeah, it's, that's tough.

0:46:38 Matt: Probably. Right. Sure. Sure. And he watched it months ago. He watched it once and he doesn't have a copy and defense hasn't seen it. And like the idea of having, I mean, yeah, I don't know. I just, it really bothers me that this was even allowed in Massachusetts.

0:46:58 Lydia: What is the reasoning exactly like behind why it was allowed in? I mean, I, Don't think I'm clear on that. Like it was just because we can trust this officer. Like what was the reasoning?

0:47:12 Matt: The judge conveyed uncertainty, this is reading from the opinion, as to whether these concerns about the fact there's no video, rendered the officer's testimony completely inadmissible under the law or whether they went to the weight of the evidence. So I would argue as a defense, this is completely inadmissable. You're talking about somebody, it's hearsay basically of him describing a video. I mean, it is not really hearsay, but it is the equivalent of hearsay that he was like, here is the thing I saw once and you can't see it.

0:47:36 Matt: The weight of evidence would be like, like, how important is this?

0:47:39 Thomas: Like you let it go through but then the jury gets to you know make a judgment on it which I guess I mean I guess you could sort of that distinction isn't super obvious like if the if the question is well yeah I'm gonna just let let the jury decide credibility of the witness. Like, that is a thing you do, right?

0:47:45 Matt: And so, yeah.

0:47:59 Thomas: Sometimes.

0:47:58 Matt: Right? Or how important this video would have been if he had seen it, right? Maybe the way he describes it, you decide it wasn't that clear, and maybe he's drawing conclusions, right. But this is just too much to ask from the jury or too much to put in front of them. Like, it just shouldn't be done that way.

0:48:09 Thomas: Because they just really have nothing to go on.

0:48:11 Matt: Right, and, if the Commonwealth, if there's any evidence at all that the Commonwealth had destroyed the video or somebody else had done it at their direction, this would be completely immiscible and they'd be sanctioned. But nobody thinks that. So we're in this position where we just have to deal with the fact that it's not there.

0:48:23 Thomas: What's interesting is pretend everything was the same, but the officer had just walked around the corner and seen what happened. All of a sudden, that would be fine, right, which is kind of weird.

0:48:33 Lydia: Yeah, that is interesting.

0:48:34 Matt: It is. It's interesting. Yeah. But you're talking about a piece of digital evidence that we have no idea what the angle was, what the shot was, the quality of video is.

0:48:44 Thomas: The key difference is you can interrogate the officer about what he saw in his memory, but if he's just like, I mean, he kind of can with a video, But if, if essentially the piece of evidence is the video, you can't really argue with the video because you don't have anybody there that is that it's just this guy who watched it maybe.

0:49:00 Matt: And we have no idea how clear the defendant's face is on the video. It sounds like the defendant admitted basically that he did do this thing or he had this altercation with her, but you still want to be able to say it was him in the video, but it's interesting too. We've talked before about the best evidence rule, which generally speaking, you'd need the original records to prove the content of the records. You can't just have somebody come in and say, yeah, I saw that document once. It's in my desk drawer or whatever. I just didn't bring it. Have to have the original record, but there is an exception, at least in Massachusetts. I'm sure this is probably pretty universal, but in the mass rules of evidence, if the record was lost or destroyed and not by the proponent acting in bad faith, as long as it's clear that it was through nobody's fault, you can show an excuse for non -production and you can try to admit what you can to make it up for it. So this basically came down to the fact that the Commonwealth failed to authenticate a video that didn't exist, which I think is pretty obvious. And then also that the identifications constituted inadmissible lay opinion testimony, that he was basically just as a regular person saying, I think this is the person that was on the video that I remember seeing several months ago.

0:50:01 Matt: So yeah, you can see the problem here, and you can See how important it is to step by step authenticate things and make sure. This is a pretty extreme example. This should be like a literal law school textbook example of how not to introduce evidence.

0:50:15 Lydia: What was Casey's position on this as a prosecutor, you know, like kind of being on that?

0:50:19 Matt: She thought it was ridiculous.

0:50:20 Lydia: Oh, OK. So you guys are pretty much aligned on like this is insane.

0:50:23 Matt: She's very much about due process and making sure that things come in properly and that they're not taking any chances on appeal. And she genuinely, as a person, she wants to be sure the defense has the best chance to make its case, and she doesn't want to be cheating. She's really not about cutting corners. I can only speak for the prosecutor that I happen to live with, but I've got a pretty good one, I think. So the court finds that Commonwealth first had to lay sufficient foundational facts to demonstrate by preponderance of the evidence that the video was a genuine representation of the events that night. The Commonwealth came far short of meeting that burden, and it does not argue otherwise. The only foundation laid was the officer's testimony that he spoke with Kraus, the keeper of the records, and he believed Kraus to be one of the building supervisors, that there was video, and that he watched the video. The Commonwealth presented no evidence identifying the date and time or the place shown. It did not call Krause to testify about the surveillance procedures, which would have been a very good idea, just to show at least, and also to testify why there isn't a video,

0:51:14 Matt: Because the jury needs to know that. The officer, actually, this doesn't come up in the appeal, but the officer shouldn't be able to testify by why the video isn't there. It's not really his knowledge.

0:51:21 Lydia: Especially if they're saying that it isn't, you know, the government's the government is not at fault for why the video is gone or anything. And then you have like a police officer, you testifying to that. That seems kind of weird.

0:51:32 Matt: Yeah, they cut corners in such a way that you actually ended up, like, even if the video had existed and the officer was watching it with the jury, it shouldn't have been admissible because you didn't have the guy who actually kept the records of the video. The officer didn't take the video so that, you know, there. They were just really cutting corners because they just were not even thinking about it, I guess. I mean, and this is typical, I should say, of district court.

0:51:49 Lydia: It was more like who's available for this trial on this date kind of thing. And OK, now you have to watch the video. You're in charge.

0:51:55 Matt: It's very possible that the commonwealth might have expected this wouldn't even go to trial. I don't know, but they're sure acting like it. District court is a chaotic place. And these smaller trials, I've been saying this, I think I've said this on the show several times, but you can actually have the most opportunity for injustice in places like this, where you have small -time stuff where you may not end up with a conviction that even even has a jail sentence, but it can still affect the rest of your life.

0:52:17 Matt: And there's a lot of corners cut on this kind of thing. And what we're seeing in the sandwich trial is the closest thing to that in federal court, because usually in federal courts, things are much more weighty and monumental. Decision is, but this is a pretty small potato's case as things go. Yeah, obviously, based on everything I've just told you, even though there's no precedent on this because nobody's been stupid enough to admit something like this before, but the overwhelming weight of authority from other jurisdictions permits testimony about the contents of a video of reporting some circumstances. The defendant is trying to say categorically, you should never do this. About a case in Maine in which if the witness's testimony is grounded in firsthand if the video were available at trail, the witness would be in a better position than the jurors to make the identification. And there's just nothing like that here. In that case, the Maine witness had known the defendant for two years, right? So you could easily identify him.

0:53:01 Lydia: Yeah. That makes sense.

0:53:02 Matt: Very interesting to think about circumstances in which you would be allowed testify about a video that no longer exists. And there's another kind of famous case I think I mentioned in which a U .N. officer was allowed to testify that, one reason or another, the body -worn camera wasn't available, but he was able to testify, you know, I did see the drugs on the defendant, and that was allowed for different reasons. They're saying, basically, the fact that he made identification from video is not enough that it's unreliable, but it's just the fact that we have no idea. I mean, we know, I should say, that this man does not know this defendant, and it's not prohibitive. It's just too prejudicial. Between all of that, yeah, exactly. I've never seen it. Need not dwell long on whether the erroneous admission of Officer testimony prejudiced the defendant. His testimony was the Commonwealth's only evidence.

0:53:33 Lydia: Literally strangers.

0:53:44 Matt: The error was therefore plainly prejudicial. Note, in addition, we have found no case from any jurisdiction in which a defendant was convicted based solely on the testimony of a witness reporting what he observed in a surveillance video that was destroyed before the defense had an opportunity to view it. I would hope not. I really hope that it's kind of embarrassing that, yeah, it is. It is. And, you know, when counsel tried to cross -examine the officer about the quality of the video, he only succeeded in soliciting testimony favorable to the Commonwealth, that the video gave the officer a straight view down the hallway. The prosecutor then relied heavily on this testimony in her closing argument. So the unfair prejudice was heightened by the fact the officer's testimony was offered not just for the purpose of ID, but also as the only substantive evidence of the crime. Yeah, it's pretty embarrassing that this actually happened in Massachusetts, and they lost the appeal. So judgment vacated, verdict set aside. Don't do it again.

0:53:59 Lydia: This seems just so crazy. Wow. And then they lost the Wow. Yeah,

0:54:32 Thomas: At least I had a good ending. Interesting.

0:54:34 Matt: Yeah, they worked out. Out. Yeah, I think just in terms of why we are so careful about this stuff, and again, this is the kind of extremity that you find in law school textbooks and nowhere else. It's fun to find these kinds of cases that belong in textbooks. If the Sandwich Trial is ever mentioned in a textbook, it will not be for this issue. But think it's important to illustrate about why we have to object every step of the way, why we need to be sure that all the rules of evidence are met, why authentication matters so much, why laying the foundation matters so much. And I think that Gatto's in the right here for the most part. And as were talking about, if this were the only evidence, I think it would have been taken much more seriously and it could potentially an appeal issue. But there is also kind of that presumption of regularity with body -worn cameras. This isn't the surveillance footage at a 7 -Eleven and we can't get the surveillance footage guy to come in. This is the routine practice of the department to wear these cameras during these interrogations. She saw that it started, she saw they went into the room, and that's enough for everything else to come out. So in the end, no harm, no foul, I don't think, but I think this is appropriately argued at least. And I think you're right, Thomas, that she probably could have gone a little harder at the point at which it was actually in front of the jury, but that's

0:55:38 Matt: How it worked.

0:55:38 Thomas: Interesting. Well, I'm excited to see what happens. We've got cross -examination coming up next, but I'll have to wait until next time, I think. Any final words on this, Matt?

0:55:48 Matt: No, just a really unexpectedly interesting issue that I didn't even know existed until we got this transcript. That's the fun of it. You never know what you're going to find in a trial.

0:55:57 Thomas: Well, stay safe out there. Keep your aprons on. Keep mayonnaise free. I don't know. I've got to glove up.

0:56:01 Lydia: Gloves up.

0:56:07 Thomas: Right. We'll see you next time. Gavelheads. I forgot what show I was doing. Sandwichheads. Gavelinos. Did it I threw the sandwich I did it I threw the salad you meat gross you your honor. I wanted to win this time.