Last Friday the Eleventh Circuit affirmed a district court ruling prohibiting a criminal defendant from playing a video for the first time during closing argument. The video was part of body cam footage (one of two sets of footage from different officers) depicting his arrest.
The defendant mistakenly relied upon the fact that the video had been introduced into evidence as justification to play a longer portion of the video in closing argument than had been shown to the jury earlier.
The Circuit court held that the defendant “could not expand the evidence during closing by calling the jury’s attention to video clips that had not been presented during the evidence phase of the trial”. It further noted, “though the lengthy body camera video (90 minutes) had been admitted into evidence as a technical matter, only a small portion (27 seconds) had been published to the jury.
It observed that the defendant had every opportunity to publish the more expansive video during the presentation of evidence but chose not to do so. It found that playing these clips for the first time during closing would have offered no opportunity for the government to examine a witness about the video or show further excerpts that would have put it in proper context.
This case is a cautionary tale for any trial attorney who assumes that once a video is in evidence that all of its content is fair game in closing. That is apparently not the case. Trial attorneys should henceforth consider playing any important video clips in their case in chief and not assume that anything beyond that will be usable in closing.
