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WHAT IS THE CORRECT STANDARD OF REVIEW IN A CASE INVOLVING A VIDEO?

Posted by Ben Sessions | Sep 17, 2016 | 0 Comments

What is the correct standard of review in a case involving a video?

The State argues that we should conduct a de novo review of the facts because the interviews with Chulpayev were recorded. De novo review would be appropriate if the “ ‘controlling facts' ” were undisputed because they were all discernable from the recordings. Vergara, 283 Ga. at 178, 657 S.E.2d 863 (citation omitted). Here, however, the legally controlling facts are in large part what occurred during the interactions between Chulpayev and Agent Jackson outside the interviews. These interactions were proved by testimony and other evidence, the credibility and weight of which the trial court as fact-finder was entitled to determine. On appeal, we must accept those factual determinations unless they were clearly erroneous, although we independently review the court's application of the law to the facts. See Brown, 293 Ga. at 803, 750 S.E.2d 148. See also Hughes v. State, Case No. S14G0622, 296 Ga. 744, 746, 770 S.E.2d 636, 639, 2015 WL 1135824, *2 (2015) (explaining that the de novo review applied in Vergara is appropriate only “to the extent that material facts definitively can be ascertained exclusively by reference to evidence that is uncontradicted and presents no questions of credibility”). Particularly in the absence of any contrary testimony from Agent Jackson, the trial court's findings as to the promises the agent made to Chulpayev are not clearly erroneous.

State v. Chulpayev, 296 Ga. 764, 772, 770 S.E.2d 808, 816 (2015).

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Ben Sessions

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