In United States v. Simmons, No. 22-12148 (11th Cir. Dec. 6, 2024), the Eleventh Circuit affirms a drug and firearm possession conviction, holding that the district court did not err by preventing the defense lawyer from showing excerpts from a video exhibit in closing arguments that were not previously shown to the jury.
“During its case-in-chief, the government called Corporal Hunter to the stand. He was asked to identify the government’s Exhibit 11, which he recognized as a body camera video from one of the police officers who had arrived on the scene before he did. Simmons objected to the admission of the exhibit because Hunter could not authenticate the first part of the video, which was recorded before he arrived. The government responded that it only intended to play clips from after Hunter had arrived on the scene.”
Then, “[t]he government … played a twenty-seven-second clip to show the scene of [an auto] accident, with Simmons seated on the ground on the passenger side of the damaged Cadillac. No other part of Exhibit 11 was played during the presentation of evidence—by either side.”
During closing argument, defense counsel announced a plan to show other, unscreened clips from Exhibit 11 (which, in its entirety, ran 90 minutes). The district court quashed the video presentation, though, holding that “Simmons could not expand the evidence during closing by calling the jury’s attention to video clips that had not been presented during the evidence phase of the trial.”
The Eleventh Circuit affirms. The panel acknowledges at the outset that what the defense lawyer proposed to do was not covered or prevented by any specific rule. It holds, though, that it was within the district court’s inherent authority to prevent showing the clips.
“Had it allowed this last-minute maneuver, the new video clips would have come in with no explanation from any witness and no opportunity for a government witness to testify about them—even though the defendant himself had argued they were not authenticated. Under these circumstances, the district court did not abuse its broad discretion to control the scope of closing arguments.”
The panel notes, in support of the district court’s decision, that “Simmons had every opportunity to publish those parts of Exhibit 11 to the jury during the presentation of evidence, but chose not to do so. As the district court explained, the government’s decision to play only a brief segment of the exhibit during its case-in-chief in no way limited Simmons’s ability to play the entire video before the jury earlier in the trial.”
“What’s more, no witness ever authenticated the opening of that footage . . . . And at least part of the video that Simmons tried to play was from the part of the tape that he had argued could not be authenticated by Hunter. We can understand why the court did not want to walk into that authentication problem during closing arguments.”
“Similarly, allowing Simmons to play these clips for the first time during closing would have offered no opportunity for the government to examine a witness about the video, or show further excerpts that would put it in proper context . . . . [I]f a video is shown for the first time during closing argument, there is no witness to examine or cross-examine and no way for opposing counsel to challenge the other side’s explanation.”
The familiar rule of completeness did not apply, according to the panel, because the proposed links did not “complete” the 27-second clip shown at trial.
Finally, that the entire 90-minute video was in evidence “does not move the needle . . . .The district court was operating well within its discretion here when it concluded that Simmons was trying to introduce new evidence rather than summarize and argue from evidence the jury had already heard.”
“In sum, the district court did not abuse its discretion by preventing Simmons’s counsel from showing previously unpublished video evidence during his closing argument. Though there is no explicit rule about such matters,” it was within the judge’s “inherent powers . . . to achieve the orderly and expeditious disposition of [the case].”
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