U.S. Court of Appeals for the 7th Circuit
Criminal Procedure — Confrontation Clause
It does not violate the Confrontation Clause to present a videotape from a hidden camera, even though the person wearing the camera did not testify.
“Pictures can convey incriminating information (think of the famous scene in Blow-Up in which David Hemmings’s processing of a photo negative finally reveals the corpse). But one can’t cross-examine a picture. The video of the defendant in this case handing crack to his nephew was a picture; it was not a witness who could be cross-examined. The agent narrated the video at trial, and his narration was a series of statements, so he was subject to being cross-examined and was, and thus was ‘confronted.’ Andrew could have testified to what he saw, but what could he have said about the recording device except that the agents had strapped it on him and sent him into the house, where the device recorded whatever happened to be in front of it? Rule 801(a) of the Federal Rules of Evidence does define ‘statement’ to include ‘nonverbal conduct,’ but only if the person whose conduct it was ‘intended it as an assertion.’ We can’t fit the videotape to this definition.
Appeal from the United States District Court for the Central District of Illinois, Mills, J., Posner, J.