A vhs tape, mpg file, or cash register receipt are the physical evidence. But for purposes of hearsay, the form doesn’t matter. It’s whether the physical evidence contains a “statement” that determines whether you even need to look at the hearsay rule in the first place. Crime scene photos: not hearsay (unless the photo is of a note saying “John did it.”). Just because the photo cannot be cross examined does not make it hearsay. You have to start with the definitions in the rule, and the starting place is whether there is a “statement.”
Here, video of the actual driving only displays nonverbal conduct. No statement, no need to look at Rules 802 and 803. Bodycam video of an eyewitness saying “he ran a red light,” on the other hand is hearsay, but not because of its medium. It’s not whether the physical evidence can be cross examined, but whether the veracity of the statement contained within that physical evidence can be challenged by cross examination.
If you attend a trial you will hear many more “foundation” objections than “calls for hearsay .” IMO they don’t spend enough time on foundation in Evidence class.
ETA: further thoughts, and the simplest answer: the definition of “statement” requires it be “a person’s” assertion or conduct. Since a paper, photo or video is not a person, it is not a declarant under Rule 801.
