Background
Lisa Marie Lewis was convicted of felony driving under the influence after a Montana Highway Patrol trooper saw her make a wide turn, enter the wrong lane, and strike a curb. The ensuing stop and DUI investigation were captured by the trooper’s dash camera and body microphone. At trial, the State relied on the trooper’s observations, Lewis’s performance on field sobriety tests, and toxicology evidence showing several prescription drugs in her blood.
Lewis testified that she had taken prescribed medications but maintained that her knee replacements, dentures, chronic pain, and other medical conditions explained her speech, balance, and inability to perform the sobriety tests. During deliberations, jurors asked whether a separate sobriety test existed for disabled people and whether the State had to prove beyond a reasonable doubt that drugs, rather than another cause, produced her impairment. They also asked to rewatch the dash-cam recording.
Over Lewis’s objection, the District Court allowed the jury to watch the entire recording in another courtroom, without judicial supervision or an inquiry into which portion the jurors wanted to review. The jury returned a guilty verdict shortly afterward. Lewis appealed.
The Court’s Holding
The Montana Supreme Court reversed and remanded for a new trial. It held that the District Court abused its discretion by allowing the jury unrestricted and unsupervised access to the entire dash-cam recording. Because the recording contained the trooper’s questions, instructions, and commentary as well as Lewis’s verbal responses and communicative conduct, it was testimonial evidence subject to Montana’s restrictions on replaying testimony during deliberations.
The court explained that when jurors request testimonial material, the trial court must determine the specific evidence sought and the reason for the request, consult the parties, identify the portion responsive to the jurors’ concern, and weigh its probative value against the danger that jurors will give it undue emphasis. The District Court did none of those things and instead replayed the complete recording without supervision.
The error was not harmless because the State failed to establish that there was no reasonable possibility the replay contributed to the conviction. The jurors’ questions showed that they were struggling with the central dispute—whether Lewis’s behavior resulted from drug impairment or her disabilities and medical conditions—and they reached a guilty verdict shortly after watching the video. The court rejected the State’s argument that the recording was merely cumulative, reasoning that replaying testimonial evidence can give it disproportionate weight compared with live testimony jurors must recall from memory.
Key Takeaways
- A deliberating jury may not receive unrestricted, unsupervised access to testimonial audio or video evidence merely because the material was admitted and played at trial.
- Before replaying testimonial material, a Montana trial court must clarify the jury’s request, consult counsel, identify responsive portions, and assess the risk of undue emphasis.
- The State did not prove harmlessness where the jury was considering a close factual dispute, replayed the entire testimonial recording, and returned a guilty verdict soon afterward.
Why It Matters
The decision reinforces safeguards intended to prevent recorded testimony from gaining an unfair advantage during deliberations. Even when a recording contains visual, non-testimonial evidence or duplicates evidence presented at trial, a court must carefully control juror access to its testimonial portions.
The ruling produced a dissent from Chief Justice Cory J. Swanson, joined by Justice James Jeremiah Shea, which agreed that the procedure was erroneous but viewed the error as harmless because the testimonial portions were cumulative and the recording’s unique visual depiction of Lewis’s movements was non-testimonial. The majority issued the case as a noncitable memorandum opinion that does not serve as precedent.