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  • November 10, 2022

    Admission of Statements from Bodycam Footage Did Not Violate Confrontation Clause

    The admission of statements made by an accomplice in police bodycam footage did not violate the defendant’s Sixth Amendment right to confront witnesses against him because the statements described an ongoing criminal situation, the U.S. Court of Appeals for the Seventh Circuit has ruled.

    Jeff M. Brown

    Closeup Of A  Camera Mounted To A  Police Officer’s Uniform, Just Below The Collar

    Nov. 10, 2022 – The admission of statements made by an accomplice in police bodycam footage did not violate the defendant’s Sixth Amendment right to confront witnesses against him because the statements described an ongoing criminal situation, the U.S. Court of Appeals for the Seventh Circuit has ruled.

    In U.S. v. Graham, No. 19-2373 (Aug. 29, 2022), the Seventh Circuit Court of Appeals also held that even if the statements were considered testimonial, implicating the Confrontation Clause, their admission constituted harmless error. 

    Argument in Motel Parking Lot

    In May 2016, Erin F. Graham, Jr. and Patience Moore had a violent argument in a room at the Red Roof Inn in Grand Chute.  A third person in the room, a woman named Cinderria, later testified the argument began when Moore tried to awaken Graham.

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    Graham and Moore took their argument out into the parking lot, where Moore began throwing rocks at Graham. Someone who witnessed the argument called the police.

    When the police arrived, they tried to arrest Moore but she resisted. The police called for backup. Police bodycams captured the parking lot encounter between Moore and the police.

    In one segment of the bodycam footage, Moore said that Graham had kidnapped her in New York and pressed her into prostitution; she also said that Graham had a prostitute in the hotel room.  

    In a second segment of the bodycam footage, which recorded a police officer talking to Graham near the motel room, Cinderria appears briefly in the background, and in the background Moore can be heard yelling.

    Sex Trafficking Indictment

    About one year later, a federal grand jury indicted Graham for conspiracy to commit sex trafficking and six related crimes. Moore pleaded guilty to sex trafficking crimes before Graham’s trial began.

    During Graham’s trial in the U.S. District Court for the Western District of Wisconsin, the government played the bodycam footage while one of the police officers testified.

    When the government played the second segment of bodycam footage, the police officer testified that when Moore was yelling in the background she was yelling about being prostituted by Graham.

    The government had listed Moore as a witness but hadn’t called her to testify yet. When the government announced that it wouldn’t call Moore as a witness, Graham’s lawyer moved for mistrial.

    Confrontation Clause Issue

    Graham’s lawyer argued that if the government didn’t call Moore, Graham would lose out on his right under the Confrontation Clause of the Sixth Amendment to confront Moore about the statements she made in the bodycam footage.

    The district court agreed with Graham’s lawyer but concluded that it could remedy any prejudicial effect the bodycam footage may have had by instructing the jury to disregard Moore’s statements.

    During the trial, four women other than Moore, including Cinderria, testified for the government. Each testified that Graham had used drugs, violence, and mental coercion to force them to have sex with paying customers. 

    Graham didn’t deny that he’d engaged in a sex trafficking operation. Rather, he claimed that he hadn’t forced or coerced the four women into engaging in sex acts for money.

    The jury convicted Graham on all seven counts and the judge sentenced him to 25 years in prison. Graham appealed.

    Statements Were Not Testimonial

    Writing for a three-judge panel, Chief Judge Diane Sykes explained that the Confrontation Clause prohibits the admission of out-of-court statements of a non-testifying witness when those statements are testimonial.

    Sykes noted that testimonial statements are rendered inadmissible by the Confrontation Clause only if they are offered to prove the truth of the matter asserted therein.

    Judge Sykes reasoned that Moore’s statements were not testimonial.

    “Moore’s statements to the police were made spontaneously and under circumstances objectively indicating that the officer’s primary purpose was to resolve the ongoing emergency of a fight in progress and sex trafficking occurring at the motel,” Sykes wrote.

    “Moore identified a dangerous individual and described the crime as it was actually happening … The primary purpose of this police encounter was to enable the officers to respond to unfolding events—i.e., to report ongoing sex trafficking at the motel, rescue the victim, and apprehend the perpetrator.”

    Graham argued that under Hammon v. Indiana, 547 U.S. 1213 (2006), Moore’s statements were testimonial. In Hammon, the court held that a domestic abuse victim’s statements to police officers after the police had separated the victim from the abuser were testimonial.​

    Hammon was distinguishable, Judge Sykes wrote, because “the Hammon victim described a past assault, whereas Moore described a present, ongoing criminal act.”

    “Police had not yet neutralized Graham at the time Moore made her statements,” Sykes wrote. “Indeed, Graham and his victim Cinderria remained in the motel room, and Graham continued to traffic her for another year. Moore’s statements were non-testimonial hearsay, so their admission at trial did not violate Graham’s Sixth Amendment confrontation right.”

    Harmless Error  

    Judge Sykes also reasoned that even if Moore’s statements were testimonial, their admission against Graham constituted harmless error, given the strength of the government’s case.

    “By his own testimony, Graham admitted that he prostituted multiple women … Moore’s outbursts as recorded in the bodycam videos simply confirmed what Graham conceded,” Sykes wrote.

    “Cinderria and the other victims testified that Graham used physical force, including choking, hair-pulling, pushing, punching, and forced restraint. They also testified about Graham’s coercive tactics, like withholding money and using illegal drugs as a means of control.”

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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