Supreme Court of Delaware Rules Trial Judge Must Preview Prosecutor’s Video Before Overruling Defense Objection to its Admission

Assume that the prosecution plans to introduce a video at a defendant’s trial. If the defense objects and the prosecution makes a proffer regarding what the video will depict, can the judge rely on that proffer in allowing the prosecutor to show the jury the video? Or should there be a per se rule that the judge must watch the video before it’s displayed to the jury? That was the question of first impression addressed by the Supreme Court of Delaware in its recent opinion in Ford v. State, 2025 WL 1257476 (Del. 2025).

In Ford, 

Tyler Ford raced his friend toward a busy intersection, drove through a red light, and killed an innocent driver who entered the intersection with a green light. A jury convicted Ford of second-degree murder and related traffic offenses.

On appeal, Ford made claims regarding the admission of a video that captured the collision, with the Supreme Court of Delaware beginning by noting the following:

Ford’s final two claims on appeal relate to the video of the collision captured by the DART bus. He contends that the portion of the video that showed Milton’s car in flames created unfair prejudice under Rule 403. He also avers that the Superior Court erred when it did not view the video before showing it to the jury and when it allowed the video to be marked as a State exhibit, which made it available to the jury during deliberations. The State responds that the video was admissible in its entirety because it accurately portrayed the scene and corroborated much of the eyewitnesses’ testimony. The State also asserts that the Superior Court was not required to view the video before allowing it to be played to the jury at trial and that the video was properly admitted as a State exhibit.

The record is unclear as to whether the trial judge viewed the video before he ruled on its admissibility.90 The State argues—without citation—that the Superior Court was not required to preview the video and that defense counsel did not raise a Rule 403 objection at trial. Although Ford’s counsel did not specifically cite Rule 403 at trial, he argued that the video was “not material” and “unduly prejudicial” because Milton’s cause of death was blunt force trauma and “[s]howing the flames reaching up 20 feet into the air is simply unduly prejudicial, and incites emotions.” The trial court then elicited a proffer from the prosecutor, who represented that the video accurately depicted the scene from the bus driver’s point of view and would be used by the reconstruction expert to show “gouge marks.”

The court then resolved the issue as follows:

The State’s unsupported contention that the Superior Court is not required to preview a challenged video before showing it to the jury is unconvincing. Some jurisdictions characterize a failure to preview a challenged video as a per se abuse of discretion because it deprives the trial court of the ability to validly perform the necessary balancing test. Other jurisdictions eschew a per se rule but deem it “best practices” or a “general rule” for a judge to review a challenged video before admitting it. We have found no caselaw that supports the State’s sweeping contention that a judge is never required to view a video challenged under Rule 403 before playing it to the jury.

The trial judge arguably abused his discretion to the extent that he failed to watch the two-minute video before ruling on Ford’s objection. Accepting a good-faith proffer from the State is to some degree understandable during a fast-moving trial, but a review of the short video would have called the proffer here into question. First, the “gouge marks” were exhibited in a separate photograph, so there was no need to show the video for that purpose. Second, the “gouge marks” were barely visible—if at all—on the video.

That said, the court deemed any error “was harmless because the court almost certainly would have admitted it in any event.”

-CM