Can a defendant's police interview video go to the jury room during deliberations? State v. Bermejo Explained

In State v. Bermejo, the Utah Court of Appeals addressed whether a jury should have access to a defendant’s recorded police interview during deliberations, ultimately clarifying an important distinction in the application of Utah Rule of Criminal Procedure 17.

Background and Facts

Oscar Bermejo was convicted of aggravated assault and felony discharge of a firearm following a gang-related drive-by shooting that injured a nine-year-old victim. During his police interview the day after the shooting, Bermejo denied being in Salt Lake City and claimed his car had been stolen. At trial, however, he testified that he had lied to police and that senior gang members had taken his car to commit the shooting. After closing arguments, the district court allowed the jury to take the video recording of Bermejo’s police interview into deliberations.

Key Legal Issues

The central issue was whether a defendant’s recorded police interview constitutes testimonial evidence that should be excluded from jury deliberations under Rule 17 of the Utah Rules of Criminal Procedure. Bermejo argued the video was similar to the child victim interview in State v. Cruz, which the court had deemed testimonial and inappropriate for jury room access.

Court’s Analysis and Holding

The court distinguished Bermejo’s case from Cruz, noting a crucial difference: Cruz involved a recorded interview of a witness, while this case involved a recorded interview of a defendant. The court explained that a defendant’s out-of-court statements offered against that defendant “have never been considered primarily testimonial in nature.” Instead, such recordings serve as demonstrative evidence of conduct contradictory to the defendant’s trial position, functioning more like admissions or prior inconsistent statements than testimony.

The court adopted reasoning from Carter v. People, emphasizing that defendant’s recorded statements have “probative force simply as non-verbal or non-narrative conduct” and do not implicate the same concerns about undue emphasis that apply to testimonial evidence. The video was introduced as both an admission and a prior inconsistent statement, not as testimony to be weighed for truthfulness.

Practice Implications

This decision provides important guidance for Utah practitioners regarding jury access to recorded evidence during deliberations. The key distinction is between testimonial evidence (witness statements offered for their truth) and non-testimonial evidence (defendant’s own contradictory statements). Defense attorneys should focus objections on truly testimonial recordings rather than defendant admissions or inconsistent statements. Prosecutors can feel more confident that properly introduced defendant interview recordings will be available to juries during deliberations, enhancing the impact of admissions and inconsistencies.