Whether a DVD recording containing testimonial evidence of the accusers, admitted as an exhibit, but never played during the trial, may be viewed by the jury during deliberations outside the presence of the defense or the judge?

QUESTIONS PRESENTED After a first trial resulted in a hung jury, Petitioner was retried and ultimately convicted of sexual assault. Suspecting foul play during trial, defense hired an investigator and learned that during deliberations, the jury had viewed video-recorded interviews of the alleged victims that were never shown during trial. The jury viewing these videos was not captured on the record. Petitioner has never viewed or heard the testimony recorded on these videos. During hearings on a Tennessee post-conviction petition, the trial judge refused to permit the jury foreman to testify about the jury viewing the videos, even as an offer-of-proof. Petitioner ultimately obtained a sworn affidavit confirming the viewing from the foreman, and filed a petition for coram nobis in Tennessee and a petition of Habeas Corpus in USDC Middle Tenn. In its denial, the district court repeated the state court conclusion that the videos were erroneously entered as exhibits, but held the error harmless, and satisfied the requirements of the Confrontation Clause. These proceedings give rise to the following Questions: 1. Whether a DVD recording containing testimonial evidence of the accusers, admitted as an exhibit, but never played during the trial, may be viewed by the jury during deliberations outside the presence of the defense or the judge? 2. Whether a criminal defendant’s right to confront the evidence against him is violated when his jury is allowed to consider video-recorded testimony during deliberations which was never played during the trial and the defendant was never afforded an opportunity to observe or hear himself? ii LIST OF PROCEEDINGS Federal Courts: Timothy Guilfoy v. Michael Parris, Warden, No. 3:18cev-01371, Middle District of Tennessee N ashville Division (judgment March 22, 2023) (unpublished) (federal habeas petition) (App.9a) Timothy Guilfoy v. Sharon N Rose, Warden, No. 235348, Sixth Circuit Court of Appeals (judgment December 18, 2023) (unpublished) (Denial of COA) (App.1a) (panel rehearing denial) (App.201a) Timothy Guilfoy v. Sharon N Rose, Warden, No. 235348, Sixth Circuit Court of Appeals (judgment February 23, 2024) (unpublished) (En Banc denial) (App.2038a) State Courts: State v. Guilfoy, Docket No. 2011-A-7 79, (Criminal Court for Davidson County, Tennessee, Division V) (Jury Trial) (Date of Conviction October 28, 2011) State v. Guilfoy, No. 2013 WL 1965996 (Tenn. Crim. App., Denied May 18, 2013) (State Direct Appeal) (App.136a) State v. Guilfoy, No. M2012-00600-SC-R1 1-CD, (Tenn. Supreme Court, Denied November 5, 2013) (Petition for review of petitioner’s denial on State Direct Appeal) (App.135a) Guilfoy v. State, Docket No. 201 1-A-779, (Criminal Court for Davidson County, Tennessee, Division V) (Post-conviction petition) (Denied August 13, 2014) ill Guilfoy v. State, No. 2015 WL 4880182 (Tenn. Crim. App., Denied Aug. 14, 2015) (appeal of post-conviction petition denial) (App.96a) Guilfoy v. State, No. (Tenn. Crim. App., Denied Sept. 25, 2015) (rehearing denied) (App.198a) (Petition for review of petitioner’s denial on Post-Conviction Appeal) (App.218a) Guilfoy v. State, Docket No. 2011-A-779, (Criminal Court for Davidson County, Tennessee, Division V) (Error Coram Nobis petition) (Denied June 3, 2017) State v. Guilfoy, No. 2018 WL 3459735 (Tenn. Crim. App., Denied July 17, 2018) (Appeal of Error Coram Nobis petition denial) (App.88a) (Motion for rehearing of Error Coram Nobis appeal denial) (App.85a) State v. Guilfoy, No. (Tenn. Supreme Court, Denied November 14, 2018) (Petition for review of petitioner’s denial of Error Coram Nobis appeal denial) (App.84a)