Holmes v. United States: Video-Assisted Testimony Not Hearsay

Jamison KoehlerEvidence, Opinions/Cases

It was a creative argument.  But, not seeing it go very far, I was frankly surprised that the D.C. Court of Appeals devoted an entire opinion to it in Holmes v. United States, 92 A.3d 328 (D.C. 2014).

Marvin Holmes was convicted of stealing two shirts from the Saks Fifth Avenue store in Friendship Heights. The store detective testified at trial to the observations he made through the store surveillance camera.  The defendant argued on appeal that this testimony should have been excluded as inadmissible hearsay.  Specifically, he argued that the live “video feed was a statement because the store detective was able to train the camera on him and follow him throughout the store.”

It didn’t take long for the Court to dispose of these arguments:

A surveillance system . . . is not a person.  Rather, it is a tool to aid perception, much like binoculars, a telescope, or glasses.  When a witness uses a tool to make an observation, the opposing party may challenge the reliability of the tool or the witness’ ability to use the tool, as Holmes’ trial counsel did here.  But a tool is not like another person who makes an “assertion” to the witness.  When [the detective] testified about what he saw on the screen of the store’s surveillance camera, he was not reporting any other person’s out-of-court statement.  Thus his testimony was not hearsay.