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Appellate Standard of Review: Video Recording

State v. Jeffrey D. Walli, 2011 WI App 86 (recommended for publication); for Walli: Chad A. Lanning; case activity

Trial court factual findings made from a combination of live testimony and video evidence are reviewed deferentially, under the “clearly erroneous” standard of review; the court rejects de novo review of the video recording. Here, it is a police squad video of a traffic stop, with the officer testifying (and the trial court finding) that Walli in fact crossed the center line, while Walli argues on appeal that the video shows he didn’t.

¶14      Here, whether Walli crossed the center line was disputed.  While the officer testified that the video was a fair and accurate representation, he also testified that he witnessed Walli crossing the center line.  The parties disagreed as to what the video in fact showed.  Where the underlying facts are in dispute, the trial court resolves that dispute by exercising its fact-finding function, and its findings are subject to the clearly erroneous standard of review. …

¶15      In surveying decisions from other states, we find those applying the clearly erroneous standard of review to similar circumstances to be more convincing than those that adopt the de novo standard of review suggested by Walli. …

¶17      We therefore decide that when evidence in the record consists of disputed testimony and a video recording, we will apply the clearly erroneous standard of review when we are reviewing the trial court’s findings of fact based on that recording.

The court’s reference to “disputed testimony” isn’t inadvertent: the holding is explictly limited to that situation, with the court leaving unresolved “the scenario … where the video recording is the only evidence of the alleged criminal conduct,” ¶15 n. 5. Keep in mind the “established Wisconsin law that, when the evidence to be considered is documentary, a reviewing court is not bound by any inferences that may have been drawn by the factfinder and, therefore, need not afford a trial court’s findings any special deference,” State ex rel. Sieloff v. Golz, 80 Wis. 2d 225, 241, 258 N.W.2d 700 (1977). Is a video recording a form of “documentary” evidence, so as to to come within this rule? You’d think so.

Anti-climactic: the court reviews the video and determines that the finding Walli crossed the centerline wasn’t clearly erroneous, ¶18.

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