State v. Gilmore

Police suspected David Lee Gilmore of dealing drugs and sent a confidential informant, wearing a hidden camera, to buy methamphetamine from him. The informant handed over the recording and the drugs, but later died by suicide while incarcerated, so he could never testify or be cross-examined at trial. The State wanted to show the jury the silent video of the exchange, but a Floyd County trial court and then the Court of Appeals of Georgia said the informant's movements on camera amounted to a 'testimonial statement' accusing Gilmore of selling drugs, so playing the video would violate Gilmore's right to confront witnesses against him. The Supreme Court of Georgia disagreed. It held that simply handing over money and taking a bag of drugs was not conduct the informant intended as an assertion, so it was not a 'statement' at all, and therefore the Confrontation Clause never applied to bar the video.

The court held that nonverbal conduct only counts as a 'statement' under the Confrontation Clause if the person intended it as an assertion, and a confidential informant simply handing over money and receiving drugs on camera was not intended as an assertion, so it was not a testimonial statement the Clause could bar.

The ruling lets Georgia prosecutors use silent surveillance footage of controlled drug buys even when the informant who appears in it has died or is otherwise unavailable to testify, which affects how drug cases are built and defended across the state.

Reversed and remanded

1. The Confrontation Clause, from the Sixth Amendment, blocks the use of testimonial out-of-court statements from someone unavailable to testify unless the defendant already had a chance to cross-examine them; for it to apply, the evidence must first qualify as a 'statement.'
2. Under Georgia's evidence rules (Rule 801), a 'statement' includes nonverbal conduct only if the person intended that conduct as an assertion, similar to a witness pointing at a suspect in a lineup or nodding yes to a question.
3. Applying that test, the court found that a confidential informant handing over cash and receiving a bag of drugs on camera was not conduct meant to assert anything like 'you are a drug dealer'; it was simply the physical act of a transaction.
4. The court distinguished a federal case involving a doctor who filmed himself demonstrating a medical procedure for the FBI, explaining that case turned on the doctor's intent to demonstrate proper technique, not on the fact that law enforcement requested the video.
5. The court also rejected the argument that the video was 'implied hearsay,' reasoning that because officers directed the informant specifically to buy drugs from Gilmore and the transaction itself was captured on camera, the video did not imply any separate statement the informant made to police.
6. Because the informant's conduct never rose to the level of a statement, it could not be a testimonial statement, so the Confrontation Clause did not bar the video's admission.

• Confrontation Clause
• confidential informant
• controlled drug buy
• video evidence
• methamphetamine charges