Push pause before relying on video evidence

Chaz Ball

Chaz Ball

Evidence in the form of video recordings is more prevalent now than ever before. And with the influx of increased technology, reduced cost, and increased access to the type of equipment necessary to render video, that trend will surely continue.

Video evidence ranges from traffic cameras to CCTV cameras to body-worn cameras and drones in the public sector to cellphone cameras and security cameras in the private sector. More and more often discovery and trial will include some sort of video evidence depicting at least part of the occurrence at issue. And while an attorney has to prepared for video, he or she also must be aware of video evidence’s potential limitations.

Video evidence can be an extremely helpful and useful tool in presentation of a case to a judge or jury. It provides a concrete record, conclusiveness, and definiteness. The clear nature of it is the difference between the professional football career of Ray Rice ending abruptly and that of Greg Hardy continuing, despite the more egregious allegations and apparent lack of remorse of the latter.  That type of record has such a profound effect that the Supreme Court held that, in the context of a motion for summary judgment, a trial court should “view the facts in the light depicted by the videotape,” even when a parties account directly contradicts that record.

People, judges and juries included, are primarily visual learners but a trial does not often provide a great medium that. It’s one of the reasons storytelling is so essential for trial. Stories allow the trier of fact to visualize. And through visualization, the trier of fact is better able to remember and understand the events presented at trial. Videos, then, cut through the need for illustrative storytelling by witnesses and attorneys, which makes them a great resource. Still, an attorney has to be careful not to allow the trier of fact to over rely on the video evidence.

In many ways, video evidence can have the same impact as scientific evidence, in that a jury may be more inclined see that type of evidence as solely important or dispositive. In the same way that a jury may be impacted by the “CSI Effect” for DNA or other scientific evidence, a jury may narrow its focus to see the video — especially when it captures the central events of a case — as the singular evidence of import in the case, to the exclusion of the other testimony or documents. The jury, in viewing the video, then could become in essence 12 eye-witnesses, with each displaying all the flaws inherent in eye-witness testimony.

Videos, like eye-witnesses, only capture a certain angle of an incident, often not displaying exactly what was seen or known to the people at the scene. Videos are limited in time and may not depict what led up incidents. And people naturally fill in that which is not known or seen by what makes sense to them as a result of their worldview. So 12 jurors with 12 different perspectives of video evidence can lead to not only 12 interpretations of what the evidence means or how it should be weighed, but also 12 versions of what the evidence is.

Video evidence is here to stay, but it is imperative to assure that the trier of facts understands that it is merely part of the record, and not the record.

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