Court of Appeals panel hears arguments over body-worn camera evidence and alleged privacy violation

On June 15, 2026, a three-judge panel of the Court of Appeals Division 3 heard oral argument in the appeal of Jessica Smalley over whether a body-worn camera video admitted at trial violated the state privacy statute and unfairly prejudiced the jury. "The video itself was inadmissible," defense counsel Moses Okeo told the panel, saying the recording showed Smalley handcuffed while an officer accused her of lying.

The issue is whether the trial court’s midtrial change in allowing the video — after it had been excluded under the privacy statute — requires reversal. Okeo argued the statute demands strict compliance and that the visual depiction of Smalley shackled and questioned could not be undone by a limiting instruction in a trial where credibility was the central issue. "A limiting instruction would not be enough to undo the harm of seeing my client behind a police car," Okeo said.

Senior deputy prosecuting attorney Joseph Jackson for Thurston County disputed that the defense’s questioning was merely refreshing recollection and said the defense’s line of questioning implied the state had intentionally omitted material from the recorded encounter. Jackson argued that implication opened the door to admitting the recording and urged the court to consider harmless-error review if the admission was erroneous. "It wasn't a refreshing recollection of the witness," Jackson said, asserting the manner of questioning suggested the prosecution had left out parts of the encounter.

The panel probed both sides on technical and legal distinctions. One panel member asked whether prejudice flowed from what was said in the video or from the format and image itself, noting that defense counsel conceded the words the officer and witness spoke were admissible. Counsel for Smalley responded that the visual — seeing her handcuffed and being accused — had a credibility impact that words alone would not have achieved. The panel also questioned whether a transcript that accompanied the played video was admitted as an exhibit or returned to the jury during deliberations; counsel said the transcript was not an admitted exhibit but acknowledged it had been handed to the jury after the video was played and that it would be objectionable if the transcript went back during deliberations.

The state raised statutory and case-law distinctions about body-worn camera footage versus in-car camera recordings, citing subsection differences and arguing that substantial-compliance principles might bear on whether suppression was required. Jackson also flagged double-jeopardy questions and statutory overlap claims tied to assault and harassment counts, saying some precedents support affirming convictions or remanding for limited remedies rather than wholesale reversal.

Both sides urged the panel to apply controlling precedent. Defense counsel relied on cases holding privacy-act violations presumptively prejudicial unless the state proves no material effect; the state pointed to cases and harmless-error standards that could allow affirmance even if admission was erroneous. The argument concluded after each side answered judges’ questions and the panel said it would issue an opinion at a later date. "The case will be submitted to the panel and an opinion will be issued at a further date," Judge Tracy Staub said before recessing.

The court did not rule from the bench. The panel took the case under advisement and announced a recess; a written opinion will be issued in due course.