State v. Gilmore, 312 Ga. 289

In July 2018 a confidential informant (CI) conducted a law‑enforcement‑controlled buy of suspected methamphetamine from David Gilmore; the CI wore a camera on his key ring and returned the camera and the suspected drugs to officers.
The camera recorded the transaction; the recording includes audio but the trial court found the audio largely indiscernible and this appeal concerns only the video (presumptively mute) depiction of the CI handing money and receiving a bag from Gilmore.
The CI later died and was unavailable to testify at Gilmore’s criminal trial on drug charges.
The State moved to admit the video; Gilmore argued admission would violate his Sixth Amendment Confrontation Clause rights because the CI’s out‑of‑court (including nonverbal) conduct was testimonial.
The trial court excluded the video as testimonial; the Court of Appeals affirmed. The Supreme Court of Georgia granted certiorari and reversed, holding the CI’s nonverbal conduct on the video was not a “statement” and therefore not testimonial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the CI’s nonverbal conduct in the muted video is a “statement” for Confrontation Clause purposes	State: video is admissible; conduct is not testimonial or is authenticable despite CI’s unavailability	Gilmore: CI intended to assert that Gilmore was selling drugs; nonverbal conduct = testimonial statement, inadmissible without cross‑examination	Court: nonverbal conduct was not intended as an assertion and therefore not a “statement”; not testimonial; admission not barred by Confrontation Clause
Whether the recording constitutes implied hearsay/testimonial implication of statements the CI made to police	State: no implication that CI made testimonial statements to law enforcement; video depicts only the transaction	Gilmore: video implies the CI’s accusation or testimonial assertion that Gilmore sold drugs	Court: rejected implied‑hearsay theory on these facts; recording does not imply the CI made testimonial statements to officers

Crawford v. Washington, 541 U.S. 36 (2004) (establishes that testimonial out‑of‑court statements are inadmissible absent declarant unavailability and prior cross‑examination)
Lilly v. Virginia, 527 U.S. 116 (1999) (de novo review appropriate for mixed, fact‑intensive Confrontation Clause questions)
Giles v. California, 554 U.S. 353 (2008) (discusses relationship between Confrontation Clause and hearsay)
State v. Gilmore, 355 Ga. App. 536 (2020) (Court of Appeals decision excluding the video as testimonial)
State v. Orr, 305 Ga. 729 (2019) (nonverbal conduct is a “statement” only if intended as an assertion)
United States v. Lamons, 532 F.3d 1251 (11th Cir. 2008) (interprets Rule 801 to include nonverbal conduct intended as assertion)
United States v. Martinez, 588 F.3d 301 (6th Cir. 2009) (videoed conduct intended to demonstrate a procedure held to be a nonverbal statement)
United States v. Gomez, 617 F.3d 88 (2d Cir. 2010) (distinguishes testimonial implications when government agents set up communications)
United States v. Wallace, 753 F.3d 671 (7th Cir. 2014) (mute video of a drug handoff did not constitute a nonverbal statement)
Park v. Huff, 493 F.2d 923 (5th Cir. 1974) (articulates concept of implied hearsay)
Lowe v. State, 97 Ga. 792 (1896) (old Georgia decision on hearsay/implied statements)