51
CRIMINAL JUSTICE | FALL 2021
trial tactics
Published in Criminal Justice, Volume 36, Number 3, Fall 2021. © 2021 by the American Bar Association.
Reproduced with permission. All rights reserved.This information or any portion thereof may not be
copied or disseminated in any form or by any means or stored in an electronic database orretrieval
system without the express written consent of the American Bar Association.
STEPHEN A. SALTZBURG is the Wallace
and Beverley Woodbury University Professor at The
George Washington University Law School and is a
former chair of the Criminal Justice Section.
Although
every
jurisdiction
has rules of evi-
dence and rules
of procedure, it
is surprising how
some aspects
of trials are not
governed by rules
that apply the
same way in each
courtroom. One
such aspect is the
handling of exhibits. Judges have diverse prac-
tices as to which exhibits go to the jury when it
is deliberating. In some jurisdictions, all admitted
exhibits except those that might be dangerous
go to the jury. In other jurisdictions, just some
admitted exhibits go to the jury. And there are
many variations on how it is determined what to
send to the jury.
A recent case, State v. Bermejo, 476 P.3d 148
(Utah Ct. App. 2020), contains a useful discus-
sion of exhibits and summarizes the approach
taken in Utah courts. It is the subject of this
column.
The Facts Summarized
Oscar Bermejo was charged with and convicted
of, among other offenses, aggravated assault and
felony discharge of a firearm associated with a
drive-by gang-related shooting in Salt Lake City.
On the afternoon of December 28, 2016, neigh-
bors observed a black BMW slowly drive more
than once past the house belonging to a family
of known gang members, and one of the neigh-
bors noted the BMW’s license plate number.
In between the BMW’s trips past the house, an
SUV stopped in front of the house. The driver
left the SUV with one child while three other
children remained in the vehicle. While the SUV
was stopped in front of the house, the BMW
again passed and this time stopped. A person
exited the passenger side of the BMW, fired
gunshots toward the SUV, and got back in the
BMW before it drove away. One of the shots
struck a nine-year-old boy seated in the BMW
in the head. He was airlifted to a hospital for
surgery and survived.
The police investigated the shooting, and the
neighbor who had recorded the BMW’s license
plate gave it to the police. It matched a black
BMW registered to Bermejo. About an hour
after the shooting, a resident reported to police
that a black BMW had been abandoned near
his house. A detective examined cell phone
data, which indicated that approximately 25
minutes after the shooting, Bermejo’s phone
had been in the area of the abandoned BMW.
Police found Bermejo the next day and arrested
him.
At trial, the prosecution relied on the evi-
dence that Bermejo’s car was at the site of the
shooting, the cell phone data, and a history of
violent acts between a gang Bermejo belonged
to and the gang to which the residents of the
house belonged. The defense did not dispute
that Bermejo was a member of a gang or the
fact that his car was used in the shooting but as-
serted that two senior gang members took the
car for the shooting and left Bermejo to explain
how his car came to be involved in the shooting.
Bermejo was the only defense witness, and his
defense rested solely on the credibility of his
testimony about the senior gang members. The
jury convicted Bermejo on all counts.
The Issue on Appeal
Bermejo raised three issues on appeal, but the
one that is relevant here is that the trial judge
erred by allowing the jury to have access to a
video recording of his police interview during
deliberations. Utah Rule of Criminal Procedure
17 provided that
Upon retiring for deliberation, the jury
may take with them the instructions of
the court and all exhibits which have been
received as evidence, except exhibits that
should not, in the opinion of the court,
be in the possession of the jury, such
as exhibits of unusual size, weapons or
contraband.
There were four separate references to the
recorded police interview during the trial: (1)
The prosecution introduced the video during
the investigating officer’s testimony. During
the interview, Bermejo denied having been in
by STEPHEN A.
SALTZBURG
Video
Exhibits
in the Jury
Room
