The Massachusetts SJC heard arguments in Commonwealth v. Rainey regarding the 4^th amendment implications of police officer bodycam footage. In this case, an officer responded to a call at the defendant’s house and had a bodycam recording the outside and what could be seen of the inside of their house without a warrant. The basis for the claim was both the 4th Amendment of the Constitution and Article 14 of the Massachusetts Declaration of Rights.

There were two arguments. The first argument was that it was error to rely on an illegal audio recording to determine that Mr. Rainey had committed a new crime, therefore violating his probation. Here, the illegal audio recording formed the entire basis of the judge’s revocation of Rainey’s probation and drove the result. The Massachusetts Wiretap Statute makes it a crime to “willfully commit an interception, attempt to commit an interception, or procure any other person to commit an interception or to attempt to commit an interception of any wire or oral communication.” An interception means “to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or personal communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication.”

In Commonwealth v. Yusuf, the SJC addressed privacy concerns of police body cameras recording the inside of people’s homes. This case mainly talked about video recording what was visible in plain view. The body cam was not obvious, and the officer even warned fellow officers that it was there since it wasn’t visible. The exceptions that would make this type of recording admissible are investigating organized crime or responding to a dangerous situation that is more than just an assault and battery. However, there is no exception for recording people in their private homes just because they sought the assistance of police.

The second argument was whether it was wrong to rely on statements that were made to the police over two hours after the incident. These statements were made two hours after the “exciting event” had passed, and the bodycam video did not corroborate the statements either. Hearsay statements (statements outside of court) can qualify as excited utterances if they are made while or immediately after perceiving an event. This allows them to be used in trial. However, here, the statements clearly were not excited utterances. “After two hours, the statements were a product of reflective thought, and lacked the spontaneity that creates the reliability factor underlying the acceptance of excited utterances in evidence.” Further, the injuries and video recording didn’t even match the statements made to police, making them more unreliable.

“In order to rely on hearsay evidence as the basis for a finding of a violation, the judge must find that the hearsay evidence is substantially reliable.” Massachusetts has a rule for using hearsay in probation violation cases called the “Substantially Reliable Test”.  It lists various factors that can indicate that a hearsay statement is reliable. The factors include the amount of factual detail, whether it was based on personal knowledge, corroboration by other evidence, if it was provided under reliable circumstances, and if it was provided by a witness that is disinterested, so one without a stake in the case. Therefore, if a hearsay statement meets most of these factors, it can be used as the sole evidence of a parole violation.