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A Better Partnership
January 29, 2018

MSC: Should appellate courts review the tape?

The Michigan Supreme Court granted to leave to appeal in People v Kavanaugh, No. 156408, to consider whether appellate courts should review and rely on video tape evidence when it is provided as part of the record on appeal, and if they do, what level of deference should still be accorded to the trial court’s factual findings as they relate to the video evidence.
In Kavanaugh, the defendant was pulled over for alleged minor driving violations, but the officer ultimately told the defendant that he was going to let him off with a warning.  After letting the defendant off with a warning, the officer asked for consent to search the vehicle, which was denied.  The officer then instructed the defendant to wait for a canine unit to arrive.  Ultimately, the canine alerted to the defendant’s trunk where marijuana was discovered.
The entire stop was recorded on the officer’s dash cam and was available at trial, where the defendant was ultimately convicted of possession with intent to deliver marijuana.  The defendant appealed, arguing that the officer lacked lawful grounds to detain him once he had been told that the traffic stop would conclude with a warning.
The Court of Appeals considered this issue and ultimately agreed with the defendant, holding that the detention following the warning was unlawful under Rodriguez v United States, 135 S Ct 1609 (2015).  But what was notable about the Court of Appeals’ analysis was the extent to which the court relied on the video tape of the issue.  The appellate court discussed the video in detail and made its own conclusions based on the video.  At one point, in a lengthy footnote, the court extolled the virtue of the ability to review video tape evidence on appeal, observing that “[r]ather than relying on varied recollections and attempts to assess credibility, the court can, in large measure, hear and see the relevant facts for itself.”  (Footnote 9.)
The Michigan Supreme Court will consider whether this is appropriate.  The Court granted leave to address three questions:
  1. what deference should be accorded to the trial court’s factual findings where a recording of events under consideration is available to an appellate court;
  2. what evidence may be considered in determining whether there was clear error in the trial court’s factual findings; and
  3. what standard of review is to be applied under such circumstances?

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