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April 23, 2019 Top Story

Video Testimony Replay Excluded from Closing Argument

Trial court did not abuse discretion in refusing replay of video testimony

By Jonathan R. Engel

A trial court properly refused the defendant’s request to play video clips of in-court testimony during the closing argument of a criminal jury trial.

A defendant’s request to play video clips of in-court testimony during the closing argument was refused

A defendant’s request to play video clips of in-court testimony during the closing argument was refused

iStockphoto by Getty Images

The trial court’s decision to prohibit such replay was within its discretion because of concerns about creating a false impression with the jury and causing a needless delay in the trial. ABA Section of Litigation leaders urge creativity and foresight by counsel who intend to seek to play video of trial testimony during closing argument.

Police Officer Convicted of Shooting Unarmed Suspect

In 2014, four Baltimore police officers responded to a silent alarm at a convenience store. Two of the officers found a masked man inside the store whom they believed was robbing it. The suspect allegedly reached for “something silver” in his waist, and both officers shot the suspect causing him to fall to the ground in a doorway. After the initial shots, the defendant officer came from the alley with his gun drawn. The defendant officer and the suspect briefly exchanged words at the doorway, and the defendant officer shot the suspect while he was lying on the ground.

At the criminal trial of the defendant officer, the prosecution presented evidence that the officer’s use of his handgun constituted excessive force. The defendant officer argued that he had acted reasonably. The jury convicted the defendant officer of two counts in the criminal complaint, including first degree assault.

Court Refuses Replay of Video Testimony During Closing

The defendant officer wanted to show the jury video clips of trial testimony as part of his closing argument so the jury would be able to again “observe the witnesses’ demeanor and adequately judge the consistency of their statements.” The trial court reviewed the video clips but denied the request, citing her general rule not to allow the replaying of trial testimony unless requested by the jury during deliberations. The judge also expressed concern about unnecessarily delaying completion of the trial and causing the jury to unfairly emphasize certain witnesses’ testimony. The defendant argued that the judge’s blanket rule prohibiting the replay of in-court testimony was an abuse of discretion and that the judge applied it arbitrarily.

In Wesley Cagle v. State of Maryland, the Court of Appeals of Maryland held that the trial judge did not abuse her discretion in excluding video clips of trial testimony from closing arguments. The appellate court found that the trial judge had legitimate concerns about the use of the video clips in closing arguments and that it excluded the clips only after reviewing the circumstances of the particular case. The court also noted that the defendant had reasonable alternatives to replaying video of trial testimony. For example, the defendant’s counsel was permitted to emphasize or highlight during closing argument any part of the testimony from any witness.

Visual Aids Are Necessary in Modern Trial Practice

“A trial lawyer must use visual exhibits to speak to a jury. Having somebody’s picture and their voice giving testimony is infinitely more powerful than just reading a transcript,” says Daniel D. Quick, Troy, MI, cochair of the Section of Litigation’s Trial Practice Committee. “In this case, the defendant officer deemed it important because he asserted the case came down to the credibility of the witnesses,” observes Darryl A. Goldberg, Chicago, IL, cochair of the Criminal Evidence Subcommittee of the Section’s Trial Evidence Committee.

But case management practices by trial judges can limit an attorney’s ability to use the evidence as he or she intends. “Trial courts need to have significant discretion to manage proceedings in their courtrooms with jury trials in particular,” says Quick. “Here, you have a ruling that arguably forces counsel to use a less efficient and less effective form of closing than they might prefer, but it is still not something that really constitutes an abuse of discretion,” offers Quick. “Trial courts are given significant leeway, and overcoming an abuse of discretion standard is often very difficult on appeal,” adds Goldberg.

Thorough pretrial planning is a good way to avoid trial surprises. “Best practice now is to have these discussions ahead of time instead of trying to figure it out through the course of trial. A good joint final pretrial conference would have touched upon, and perhaps avoided, last minute misunderstandings,” stresses Quick. “Trial lawyers should come prepared to best address the concerns raised by the trial court in this case and be ready to show why the recorded testimony should be allowed,” offers Goldberg.


Jonathan R. Engel is a contributing editor for Litigation News.

Hashtags: #closingargument, #videotestimony, #criminalpractice

Related Resources

  • Daniel Bender, Pierre E. Kressman & Robert Jason Fowler, Demonstratives: Definitive Treatise on Visual Persuasion, ABA Section of Litigation Publishing (2018).

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