PRESENT: All the Justices
TARA ANN BAEZ OPINION BY v. Record No. 230899 JUSTICE TERESA M. CHAFIN DECEMBER 19, 2024 COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this case, we consider the admissibility of video recorded by a law enforcement
officer’s body-worn camera. Upon review, we conclude that the circuit court did not abuse its
discretion when it admitted the video at issue into evidence over appellant’s objection. We
further conclude that the video at issue did not implicate the Confrontation Clause. Accordingly,
we affirm the judgment of the Court of Appeals.
I. MATERIAL FACTS AND PROCEEDINGS
On May 22, 2020, Officers Massie and Hubbard of the Lynchburg Police Department
attempted to stop Tara Ann Baez for speeding around 9:44 p.m. Following a brief pursuit, Baez
ultimately stopped her vehicle. Baez was arrested by Officer Massie for reckless driving and
eluding law enforcement. Shortly after Baez’s detention, Officer File arrived and conducted a
canine sniff of Baez’s vehicle. Based on the results of the sniff, Officer Massie searched Baez’s
vehicle and located a brown paper bag containing a glass smoking device. The contents of the
smoking device were indicative of crack cocaine.
While Officer Massie searched the vehicle, Officer File searched Baez. In Baez’s front
pocket, Officer File discovered a folded piece of paper containing a substance that she suspected
to be narcotics. Officer File placed the paper and substance in an evidence bag provided by
Officer Massie before continuing her search. A field test indicated that the substance was
cocaine. At Baez’s trial, during direct examination of Officer Massie, the Commonwealth sought
to play video footage recorded by Officer File’s body-worn camera to supply her link in the
chain of custody of the drugs handed to Officer Massie. Baez objected to playing the video on
the grounds that it lacked a foundation and that it was hearsay in violation of the Confrontation
Clause. The Commonwealth responded that the video could be authenticated by Officer
Massie’s testimony that the video clearly and accurately portrayed the scene as it was that
evening. The Commonwealth further contended that there was no hearsay issue because it was
not offering any statements by Officer File for the truth of the matter asserted. To alleviate
potential hearsay issues, the Commonwealth offered to mute the video while it played.
Baez agreed that muting the video “would help the hearsay objection,” but she
maintained that the video still lacked a proper foundation. Referencing the two traditional
theories for admitting video evidence, Baez contended that the Commonwealth could satisfy
neither: first, Officer Massie did not personally view the relevant events and thus could not
corroborate them to use the video as an illustrative aid to his testimony; and second, the
Commonwealth could not authenticate the video as an independent silent witness without
providing testimony as to the technical details and creation of the recording. Baez also argued
that the video’s admission would violate the Confrontation Clause if the recording officer was
not present to testify.
The trial court overruled Baez’s hearsay and confrontation objections, but it took the
objection to foundation under advisement to allow the Commonwealth the opportunity to
establish a foundation subject to voir dire. When presented with a still image taken from the
body-worn camera footage, Officer Massie could not specify whose camera would have recorded
that particular vantage point, but he testified that the image appeared to accurately depict the
2 night of Baez’s arrest. He identified Baez as the individual in a white shirt and yellow shorts and
confirmed that he was present at that time, though he was not one of the individuals shown in the
still image. The Commonwealth acknowledged that Officer Massie was not visible in the still
image, but that he would be seen later in the video collecting evidence from Officer File.
Officer Massie further explained that each officer controls their own body-worn camera,
and they have the ability to “turn [the camera] on and off,” or even mute it. According to Officer
Massie, when a camera is returned to its charger at the end of the day, it “automatically” uploads
its recordings “by itself.” Individual officers do not have a role in uploading or storing the
recordings from their body-worn cameras. Although Officer Massie could not verify why the
date and time stamp on the still image showed 1:53 a.m. on May 23, he reiterated that the arrest
took place shortly before 10:00 p.m. on May 22. The trial court overruled Baez’s remaining
objection, finding that Officer Massie’s testimony adequately authenticated the video such that it
could be used as an illustrative aid to his testimony or as a silent witness.
The video was thereafter played for the trial court. The video shows Officer File
conducting her search of Baez’s person. At one point in her search, Officer File is seen
removing the folded piece of paper from Baez’s front shorts pocket. Holding the paper under
another officer’s flashlight, Officer File unfolds the piece of paper before eventually placing it in
an evidence bag. Officer Massie identified himself as the officer approaching Officer File with
the evidence bag to collect the folded piece of paper that contained what he described as “two
pieces of chunk rock white substance.” Officer Massie testified that prior to collecting the
evidence, he had observed “parts” of Officer File’s search, the extent of which being Officer File
and Baez standing beside each other. After Officer File completed her search, she and Officer
3 Massie are then seen field-testing the substance before Officer Massie packaged it for
submission to the Department of Forensic Science.1
Once the Commonwealth rested, Baez moved to strike the charges against her. The trial
court denied the motion to strike, finding that the Commonwealth presented a prima facie case to
support both charges of eluding and possession of cocaine. After a brief examination of Officer
Hubbard regarding the chain of custody for the cocaine, Baez rested and the trial court heard
closing arguments, during which Baez renewed her motion to strike. The trial court denied the
motion and proceeded to judgment. Baez was found guilty of possession of cocaine. 2
Upon receiving a presentencing report, the trial court set aside Baez’s conviction. The
trial court instead withheld a finding of guilt and deferred a disposition pursuant to Code
§ 18.2-251, subject to a twelve-month period of good behavior and supervised probation. Baez
thereafter violated the terms of her probation, and the trial court entered a finding of guilt. Baez
was sentenced to two years of incarceration, all suspended on terms of good behavior and
supervised probation.
Baez appealed her conviction to the Court of Appeals, presenting the same arguments she
made at trial regarding the admission of Officer File’s body-worn camera video. 3 The Court of
Appeals affirmed the trial court’s decision to admit and play the video. Citing its decision in
Bennett v. Commonwealth, 69 Va. App. 475 (2018), the Court of Appeals rejected both of Baez’s
1 The certificate of analysis admitted at trial confirmed that the substance found in Baez’s pocket was cocaine. 2 Baez was found not guilty of eluding. 3 Baez presented additional arguments to the Court of Appeals, but those arguments are not at issue in the present appeal.
4 constitutional arguments: that the video itself was testimonial hearsay, and that the search
depicted in the video was testimonial hearsay. Likening Baez’s argument to that in Bennett that
the video itself was testimonial hearsay, the Court of Appeals in both cases reframed the issue as
more appropriately turning on whether the contents of the video were hearsay. See Baez v.
Commonwealth, 79 Va. App. 90, 110 (2023) (citing Bennett, 69 Va. App. at 486). In doing so,
the Court of Appeals reiterated that the “Confrontation Clause will only be implicated by
conduct or actions depicted within the video.” Id. at 111.
Finding Bennett similarly instructive as to how to analyze the video’s contents, the Court
of Appeals determined that the “video does not depict any conduct by Officer File intended to be
an assertion;” rather, “it merely depicts the occurrence of a search conducted by Officer File.”
Id. at 112. Absent an assertion, the Court of Appeals held that there was no hearsay implicating
the Confrontation Clause. Id. (citing Bennett, 69 Va. App. at 488 (“[U]nless the video contains
conduct that ‘is intended [by the actor] as an assertion,’ the contents of the video simply are not
hearsay.”)).
The Court of Appeals also rejected Baez’s foundation argument that even if her
constitutional right to confrontation had not been violated, the video was nevertheless admitted
erroneously because it was not authenticated. Referring to Virginia Rule of Evidence 2:901 as a
“condition precedent to admissibility,” the Court of Appeals determined that Officer Massie’s
testimony provided a sufficient factual basis to authenticate the video under both traditional
theories of admissibility regarding videos. Id. at 113-14 (quoting Va. R. Evid. 2:901).
Finding no abuse of discretion, the Court of Appeals affirmed the trial court’s decision to
admit the video footage from Officer File’s body-worn camera and upheld the trial court’s
judgment. This appeal followed.
5 II. ANALYSIS
As at trial and in the Court of Appeals, Baez contends that it was reversible error to admit
and play the video from Officer File’s body-worn camera. Baez argues that admitting the video
without Officer File being present to testify or to be cross-examined violated Baez’s
constitutional right to confrontation. She further argues that even if the video’s admission did
not violate her rights under the Confrontation Clause, the video was nonetheless inadmissible
under the Virginia Rules of Evidence. We disagree with both arguments.
A. BAEZ’S CONSTITUTIONAL ARGUMENT
Baez maintains her twofold constitutional argument. First, she contends that the video
itself is testimonial hearsay because body-worn camera footage is a “medium only intended to be
used in litigation.” Second, she argues that the video’s content—specifically Officer File’s
actions depicted during the search—is testimonial hearsay because those actions are
“purposefully memorialized on camera in order to assert the truth of the matter that Officer File
searched [Baez], and found [her] in possession of drugs.” 4 These constitutional arguments are
subject to de novo review. See Cortez-Rivas v. Commonwealth, 300 Va. 442, 444 (2022) (“This
Court reviews de novo whether the admission of evidence violates a defendant’s confrontation
right.” (quoting Logan v. Commonwealth, 299 Va. 741, 745 (2021))).
The Confrontation Clause of the Sixth Amendment of the United States Constitution
states: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him.” The right of confrontation has been interpreted as “applying to
4 The record is not clear and the parties could not confirm whether the video was in fact played with or without audio at trial. The arguments on brief do not identify any verbal statements at issue but instead focus on Officer File’s nonverbal actions. Because the argument has been presented this way, we limit our review to the nonverbal conduct depicted in the video.
6 ‘witnesses’ who ‘bear testimony.’” Logan, 299 Va. at 745 (quoting Crawford v. Washington,
541 U.S. 36, 51 (2004)). “‘Testimony,’ in turn, is typically ‘a solemn declaration or affirmation
made for the purpose of establishing or proving some fact.’” Crawford, 541 U.S. at 51
(quotation marks omitted). The Supreme Court of the United States has posited that “even if the
Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object.”
Id. at 53.
Thus, the Confrontation Clause’s prohibition of “testimonial hearsay” is constrained by
“two limits:” a “statement must be hearsay (‘for the truth’) and it must be testimonial—and those
two issues are separate from each other.” Smith v. Arizona, 602 U.S. 779, 784, 800 (2024). A
statement’s testimonial character “focuses on the ‘primary purpose’ of the statement, and in
particular how it relates to a future criminal proceeding.” Id. at 800. “A court must therefore
identify the out-of-court statement introduced, and must determine, given all the ‘relevant
circumstances,’ the principal reason it was made.” Id. at 800-01 (quoting Michigan v. Bryant,
562 U.S. 344, 369 (2011)). Finally, the limitation against hearsay means that if a “statement is
admitted for a reason unrelated to its truth, . . . the Clause’s ‘role in protecting the right of cross-
examination is not implicated.’” Id. at 785 (quoting Tennessee v. Street, 471 U.S. 409, 414
(1985)).
Before determining whether an out-of-court statement is testimonial, we must first
determine whether a statement has been offered to establish or prove some fact. Under the
Virginia Rules of Evidence, hearsay is a “statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
Va. R. Evid. 2:801(c). A statement is either “(1) an oral or written assertion or (2) nonverbal
conduct of a person, if it is intended as an assertion.” Va. R. Evid. 2:801(a). Thus, to constitute
7 hearsay, which is necessary to implicate the Confrontation Clause, there must be a verbal or
nonverbal assertion of fact.
Baez argues that an officer who records themselves while engaging in a search is
inherently making an assertion for the purpose of litigation. She suggests that body-worn camera
footage is distinct from videos created by other sources, like surveillance cameras, because the
body-worn camera is completely within the control of the recording officer. Given the “editorial
ability of the recording officer to create their own narrative”—choosing when, how, and what to
record—she argues that the video itself should qualify as hearsay. The assertion represented by
the existence of the video, according to Baez, is that Officer File appropriately searched Baez
and that Baez possessed cocaine.
In arguing as much, however, Baez necessarily relies on the content depicted in the
recording to give the video intrinsic assertive significance. Even types of evidence that are
plainly assertive by nature, such as affidavits, have been classified as such based on the content
within the medium, not the medium itself. See Melendez-Diaz v. Massachusetts, 557 U.S. 305,
310 (2009) (holding that certificates of analysis are “quite plainly affidavits,” which “fall within
the ‘core class of testimonial statements’ covered by the Confrontation Clause because they are
“incontrovertibly a ‘solemn declaration or affirmation made for the purpose of establishing or
proving some fact.’” (quoting Crawford, 541 U.S. at 51)); see also Aguilar v. Commonwealth,
280 Va. 322, 333-37 (2010) (applying the holding of Melendez-Diaz by reviewing whether
certificates of analysis “contain” testimonial statements). Put simply, a video recorded on a
body-worn camera is not inherently a testimonial statement that automatically implicates the
Confrontation Clause, even if created by law enforcement while engaging in their official duties.
Rather, the incidents depicted in the video dictate whether it contains any testimonial statements
8 that are a “solemn declaration or affirmation made for the purpose of establishing or proving
some fact.” See Melendez-Diaz, 557 U.S. at 310; Crawford, 541 U.S. at 51.
Turning to the contents of the video at issue, the trial court and the Court of Appeals
correctly reasoned that nothing depicted in the video’s contents was intended to be an assertion
of some fact that qualifies as a statement for purposes of the hearsay definition. As observed by
the Court of Appeals in its reliance on Bennett, “unless the video contains conduct that ‘is
intended by the actor as an assertion,’ the contents of the video simply are not hearsay.” Baez,
79 Va. App. at 111 (quoting Bennett, 69 Va. App. at 488); see also Stevenson v. Commonwealth,
218 Va. 462, 465 (1977) (to be hearsay, a person’s nonverbal conduct must be “intended by him
as an assertion and offered in evidence to prove the truth of the matter asserted”).
Understandably, not all nonverbal conduct will rise to this level. See Charles E. Friend & Kent
Sinclair, The Law of Evidence in Virginia §§ 15-1[a], 15-7, at 898, 942 (7th ed. 2012)
(differentiating between communicative behavior such as pointing a finger and
noncommunicative behavior such as walking down the sidewalk). Assertive intent is necessary
for nonverbal conduct to qualify as a statement under our definition of hearsay. See Stevenson,
218 Va. at 465.
Baez argues that Officer File’s actions constitute intentional communicative assertions:
upon finding the folded piece of paper, Officer File “pointedly” stepped back and held up the
item toward her camera, “purposefully memorializ[ing]” that she searched Baez and found her in
possession of drugs. However, this interpretation of Officer File’s actions speculatively assigns
meaning to her otherwise matter-of-course behavior. Viewing the evidence in the light most
favorable to the Commonwealth, see Logan, 299 Va. at 745, the video simply depicts a law
enforcement officer’s routine practice of a search incident to arrest. After locating an item in
9 Baez’s pocket, Officer File turns to hold the folded paper under another officer’s flashlight,
ostensibly to better view the paper and its contents considering the late hour of the arrest.
Having apparently determined that the substance is likely contraband, Officer File places the
paper and the substance in an evidence bag so that she can continue her search.
The video objectively supports the trial court’s determination that Officer File’s actions
were not intended as an assertion, and therefore they were not hearsay implicating the
Confrontation Clause. The Court of Appeals, then, did not err in concluding that the trial court
correctly determined that the Confrontation Clause did not prevent admission of the video.
Because we agree that the video does not contain hearsay, we need not address whether the
contents are testimonial. 5
B. ADMISSIBILITY OF THE BODY-WORN CAMERA FOOTAGE
Notwithstanding this determination, Baez contends that the video was nonetheless
inadmissible. The admissibility of photographic and video evidence rests within the sound
discretion of the trial court. See Stamper v. Commonwealth, 220 Va. 260, 270 (1979); see also
Goins v. Commonwealth, 251 Va. 442, 459 (1996). In this context, “we do not substitute our
judgment for that of the trial court. Rather, we consider only whether the record fairly supports
the trial court’s action.” Kenner v. Commonwealth, 299 Va. 414, 423 (2021) (quoting Carter v.
Commonwealth, 293 Va. 537, 543 (2017)). “[M]atters regarding the admissibility of evidence,
5 “The doctrine of judicial restraint dictates that we decide cases ‘on the best and narrowest grounds available.’” Commonwealth v. Swann, 290 Va. 194, 196 (2015) (quoting McGhee v. Commonwealth, 280 Va. 620, 626 n.4 (2010)). “A fundamental and longstanding precept of this doctrine is that ‘unnecessary adjudication of a constitutional issue’ should be avoided.” Id. (quoting Bell v. Commonwealth, 264 Va. 172, 203 (2002)). As discussed above, a statement must be both hearsay and testimonial to implicate the Confrontation Clause. See Smith, 602 U.S. at 800. The conclusion that the video does not contain hearsay is therefore dispositive of this issue as the “best and narrowest grounds available,” and we decline to consider whether the video’s contents were testimonial.
10 including underlying factual issues, are solely within the province of a trial court.” Bloom v.
Commonwealth, 262 Va. 814, 821 (2001).
Ordinarily, the admissibility of video footage is governed by the same rules which apply
to the admission of photographs. See Tirado v. Commonwealth, 296 Va. 15, 26 (2018); Stamper,
220 Va. at 271. Photographs and videos are “generally admitted into evidence for two purposes:
to illustrate a witness’ testimony, and as an ‘independent silent witness’ of matters revealed by
the photograph [or video].” Bailey v. Commonwealth, 259 Va. 723, 738 (2000) (quoting
Ferguson v. Commonwealth, 212 Va. 745, 746 (1972)).
“A photograph [or video] which is verified by the testimony of a witness as fairly
representing what that witness has observed is admissible in evidence and . . . it need not be
proved by the [individual] who made it.” Tirado, 296 Va. at 26-27 (quoting Bailey, 259 Va. at
738); see also Ferguson, 212 Va. at 746 (noting the Court’s long-established recognition of this
theory of admissibility). As a silent witness, or a witness that “speaks for itself,” video or
photograph evidence is admissible when “[g]iven an adequate foundation assuring the accuracy
of the process producing it.” Ferguson, 212 Va. at 746 (adopting the “independent silent
witness” theory of admissibility). The Court in Ferguson accepted that “later advancements in
the art of photography” and an “increasing awareness of the manifold evidentiary uses of the
products of the art” justified recognizing that photographs could serve as an independent witness.
Id. (quotation omitted). A similar rationale applies to videos.
Baez argues that Officer Massie’s testimony was not sufficient to satisfy either theory of
admissibility. First, she asserts that Officer Massie is incapable of testifying that the video
accurately represents what happened because he did not witness the relevant portions of the
search, namely the moment when Officer File found the cocaine in Baez’s pocket, and because
11 his testimony about the time of the stop and arrest did not match the time stamp on the video.
Second, Baez asserts that Officer Massie did not create the video and could not adequately testify
to the process for creating it in order to satisfy the silent witness rule.
As noted by the Court of Appeals, authentication is a threshold issue, the express purpose
of which is to establish “that the thing in question is what its proponent claims.” Va. R. Evid.
2:901. Focusing the authentication inquiry on one discrete moment is too narrow to bear on the
genuineness of the video as a whole, especially so because “no human is capable of swearing
that he personally perceived what a photograph [or video] purports to portray.” Ferguson, 212
Va. at 746.
In terms of videos, it is not necessary that a witness observe or testify to every moment
depicted in the video. Rather, it is sufficient for a witness to affirm that the video accurately
represents what transpired based on the witness’s observations. See, e.g., Tirado, 296 Va. at 27
(upon testifying that the recording accurately depicted the interview, “[n]o more evidence was
needed to ‘support a finding that the thing in question’—here, the recording of the interview—‘is
what its proponent claims’ as required by Rule 2:901”); Goins, 251 Va. at 459 (highlighting
accuracy of the depiction as the key consideration); see also Clagett v. Commonwealth, 252 Va.
79, 87 (1996) (finding a photograph to be sufficiently authenticated by the officer’s testimony
identifying a distinctive keyring that had been taken from the defendant and photographed at the
same time as other evidence); Wilson v. Commonwealth, 29 Va. App. 236, 239 (1999) (a proper
foundation for video and still images was laid by the victim’s “personal, direct knowledge” of
the assault when testifying that the video “accurately showed the assault on him as it was
occurring”).
12 Here, Officer Massie testified to his personal, direct knowledge of the events surrounding
Baez’s stop and arrest. Officer Massie not only testified that he was present during that
timeframe, but he also identified himself in parts of the video. Though he did not see the
moment when Officer File removed the cocaine from Baez’s pocket, he testified that he did
observe them standing together as Officer File searched Baez. Significantly, he affirmed that the
video accurately depicted the events that took place during the course of Baez’s stop and arrest.
While Officer Massie did not create the video, our case law is clear that its accuracy can be
affirmed by someone other than the person who made it. See Tirado, 296 Va. at 26-27. Further,
when confronted about the difference of the date and time stamp, Officer Massie echoed his
earlier testimony regarding the date and time that he stopped and arrested Baez. 6 To the extent
he lacked an explanation for the difference, such gaps tend to go to the weight of the evidence in
question rather than its admissibility. See Aguilar, 280 Va. at 333. Officer Massie’s testimony
was therefore sufficient to support a finding that the “thing in question,” being Officer File’s
body-worn camera footage, “is what its proponent claims” as required by Rule 2:901, and the
video was adequately authenticated as an illustrative aid to his testimony.
Officer Massie additionally testified regarding the process of creating the videos recorded
by body-worn cameras. He explained that each individual officer can turn their body-worn
camera on or off, or mute the audio while recording. He described the process to upload videos
from the body-worn cameras as being automatic once a camera is placed on a charger, noting
that the officers have no interactive role in uploading or storing the videos. Officer Massie’s
descriptions of using the body-worn cameras, particularly the binary nature of control and the
6 The Commonwealth argued that the letter “z” following the date and time stamp indicated Zulu Time, which would be “four or five hours ahead” of the local time, depending on daylight saving time.
13 automated upload process, were sufficient in combination with the rest of his testimony to assure
the trial court of the “accuracy of the process producing” the video. See Ferguson, 212 Va. at
746. His testimony was therefore sufficient for the trial court to determine that the video had
been authenticated for use as an independent silent witness as well.
Though Bennett seemingly describes the two theories of admissibility as an either/or test,
see Bennett, 69 Va. App. at 487, we agree with the Court of Appeals that the intended reading is
that either theory may serve as an independent basis for authenticating a photograph or video.
Our case law does not necessarily preclude the possibility that photographic or video evidence
may function both as an illustrative aid to testimony and as an independent silent witness, so
long as the proper foundation is laid by sufficient evidence for each basis.
Baez urges that this conclusion begets a “slippery slope” wherein body-worn camera
footage will routinely be offered as a substitute for the live testimony of law enforcement in
criminal trials. We are confident that our well-settled evidentiary rules of admissibility are
sufficient safeguards against such a wholesale possibility. As reasoned by the Court of Appeals,
the authentication inquiry is merely one part of the admissibility determination. Other rules of
evidence may bear upon the ultimate admissibility of body-worn camera footage, depending
upon the purpose for which it is offered. As with the video in this case, objections to videos
from body-worn cameras offered into evidence will be examined on a case-by-case basis to
determine whether and for what purpose the video may be admitted. This level of individual
review ensures the trial court’s ability to consider whether a proponent has sufficiently
established not only that the video is what its proponent claims to be, but also that it is a relevant
and reliable piece of evidence.
14 III. CONCLUSION
For the reasons stated, we affirm the judgment of the Court of Appeals.
Affirmed.