Judge Barry did not allow the prosecution or the defense to show the video during trial. They could talk about it. They could ask the officers involved, or other witnesses, about it. They could refer to it during their closing argument. But they could not pop it into the VCR or DVD player and hit play.
You see, Judge Barry, believed that the only proper time for the jury to see the video was during their deliberations. The six folks in the box weren't allowed to view the video within the context of the trial. They were expected to remember the points the defense made while cross-examining the officers involved.
In his first point of error, appellant contends the trial court's ruling forbidding the playing of exhibits during trial, and more broadly its policy on video evidence, constitutes an abuse of discretion, deprived him of the right to effective assistance of counsel under the Sixth Amendment and Article I, section 10 of the Texas Constitution, and deprived him of his right to present a defense and confront the witnesses against him in violation of the Sixth and Fourteenth Amendments. Appellant concedes the trial court has the discretion to set reasonable restrictions on how video evidence is published to the jury, but he contends a blanket policy prohibiting the use of such evidence during direct and cross-examination without regard to the individual facts and circumstances of a case is an abuse of discretion. Appellant contends the ruling excluding videotape evidence harmed him by eliminating his counsel's ability to present evidence in a manner that allows the jury to assimilate it as the trial progresses. He contends it is unreasonable to expect jurors to remember details developed during examination and cross-examination about recordings they have not seen or heard, and diminishes his ability to effectively cross-examine witnesses by removing the jurors' ability to actually see the impeachment evidence. In the event the jury does choose to examine the videotape during its deliberations, appellant contends the failure to present it contemporaneously with the testimony discussing it makes it more difficult for the jury to match up the video with the questions asked because the lawyers are unable to show the jury what is being referenced. Appellant contends his constitutional rights are violated by a ruling that deprives his counsel of the ability to show properly admitted evidence to the jury, explain its significance, use it to support opinions that appellant was not intoxicated, and to confront and impeach the State's witnesses to expose inconsistencies in the witnesses's testimony.But no longer.
In v. Packer v. State, No. 05-10-00552-CR (Tex.App.--Dallas, 2011), the Dallas Court of Appeals said that Judge Barry's policies violated Mr. Packer's Sixth and Fourteenth Amendment rights to present a defense and to confront the witnesses against him.
We agree with the parties that the trial court's ruling prohibiting the publication of the videotape evidence to the jury in a timely manner, a decision preordained by the trial court's policy without reference to the facts and circumstances of this case, was arbitrary and constitutes an abuse of the trial court's discretionThat such a policy was allowed to be carried out is a travesty. So much so that the state submitted a letter brief acknowledging that the policy violated Mr. Packer's right to an open trial.
Of course, so as not to lean too far in guaranteeing a defendant's right to a fair trial, the court decided not to publish the opinion - meaning it is not to be cited to as authority in subsequent cases.
