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Video Evidence

No matter how good it is, video evidence is inadmissible if it cannot be shown to be relevant to the case at hand.

Someone holding phone up to take a video

No matter how good it is, video evidence is inadmissible if it cannot be shown to be relevant to the case at hand. “For instance, showing video of a hammer with dried blood and hair on it is not relevant unless it can be linked to the murder,” says Elliott Goldstein. He is a Woodbridge, Ont., lawyer; an acknowledged video evidence expert who lectures at the Ontario Police College, and the author of the two-volume book, Visual Evidence: A Practitioner’s Manual. “However, showing video of this hammer and the skull of the deceased, and being able to illustrate that the hammer head fits into the damaged skull of the deceased, is relevant.”

The rule of thumb: Do not let the quality and any apparent/imagined implications of the video cloud your judgment. For this evidence to be allowed in court, “it must be shown that the video evidence is relevant,” says Alberta Crown prosecutor Jonathan W. Hak, Q.C.

Unquestioned authenticity

We live in an age where recorded video can be edited to rearrange the chronology of events depicted, distort the passage of time, and show events out of sequence and context. The digital recording process, which usually involves ‘compressing’ video data to save hard drive space, can lead to data loss and affect image quality. If the chain of custody of the video evidence is not proven (e.g., because of inadequate documentation) the video evidence can be ‘thrown out of court’.

“In the old days, video images were recorded on videotapes,” Goldstein says. “When it came to submitting them as evidence, there was no problem: You just took the original tape into court and played it for the judge and jury. But today most [surveillance] video is recorded on hard disk drives, which are routinely wiped as new data comes in. This means that the video evidence has to be downloaded onto a DVD or digital tape, requiring very careful procedures, witnessing, and documentation to prove that you have an unedited ‘exact duplicate copy’ of the original.”

Hak echos Goldstein’s concerns: “The party tendering video evidence must establish how the video was recorded, what impact the recording process had on the captured video, whether the exporting of the video evidence has further comprised the reliability of the images and whether all relevant video has been obtained of the incident in question.” As a result, “video evidence must be authenticated in order to gain admissibility in court. Authentication can be accomplished by witnesses familiar with the video content — for example, the person who captured the video images — or technically, showing that the images have not be altered in any improper way. This is a requirement of both the Canada Evidence Act and common law.”

Probative vs. prejudicial

Gene Henderson is a long-time crime scene videographer with the Texas Department of Public Safety. He documented the Branch Davidian compound in Waco where 76 people died, including 20 children and two pregnant women. Even in this horrific carnage, Henderson shot his video in a methodical, factual and non-sensational manner. “I am not trying to make an impact with my footage, save the actual impact of what is being shot,” he explains.

There’s a very good reason why Henderson and other crime scene shooters resist the temptation to shock their viewers: They know that if their video is too upsetting to the viewer, it could be ruled as prejudicial by the judge, and not allowed as evidence.

“The key is striking the balance between probative value and prejudicial effect,” says Goldstein. “If the video is too gruesome, even if it accurately portrays the crime scene, it can be excluded by the trial judge on the grounds of being overly prejudicial. The reason is that the graphic nature of the video affects the jurors’ emotions, ‘arouses the sympathy and passions of the jury,’ and biases their impressions, which is precisely what the trial judge is trying to avoid.”

On the other hand, some crime scenes are unavoidably gory by nature. As a result, they cannot be ‘cleaned up’ to spare the jury’s feelings for fear of compromising the evidence. So how do you strike the balance; either in the Crown or defence roles? “An over-riding test for admissibility provides that the probative value of the evidence must outweigh the prejudicial effect,” replies Hak. “‘Prejudice’ in this context means evidence that may operate unfairly against the defendant or that may be used incorrectly by the trier of fact. Video evidence that is graphic in nature is not excluded for that reason alone. It depends on the issues in the case and the purpose for which the video evidence is tendered.”

Image enhancement pros and cons

Police call it ‘The CSI Effect’: It’s the expectation on the part of some judges and juries that fuzzy video evidence can be infinitely resolved down to the smallest detail; just like the Hollywood detectives’ (as Goldstein calls them) do on TV’s CSI: Crime Scene Investigation.

In real life, this doesn’t happen. It is possible to enhance the brightness, contrast, and colour of a video image to bring out more detail by using computer programs such as Ocean Systems’ dTective. dTective can also clarify an image by removing video noise and graininess, revealing details hidden beneath. But that’s about it.

The key is striking the balance between probative value and prejudicial effect.

— Elliott Goldstein, lawyer and author —

However such “enhancement” comes with a risk: The more you enhance video, the more the admissibility of your final product can be challenged in court on the ground that the image has been altered and is no longer accurate or fair.

“I see this as a before-and-after situation,” Goldstein notes. “You need to bring both the original unenhanced (source) video — the before — and the enhanced (altered) version — the after — to court, so that the judge and jury can see what you’ve done and hear you explain why you did it. This may forestall an objection from opposing counsel.”

Goldstein adds, “any defensible procedure for documenting and preserving digital video evidence must answer with these questions:

  1. Who captured the image and when?
  2. Who had access to the image between the time it was captured and the time it was introduced into court?
  3. Has the original image been altered in any way since it was captured?
  4. Who enhanced the image, when and why?
  5. What was done to enhance the image and is it repeatable?
  6. Has the enhanced image been altered in any way since it was first enhanced?

Expert video witnesses

It is not sufficient to take video evidence into court, hit ‘play’ and assume that the jury will fully understand what they are seeing. To ensure that they do, you need to have the video explained to them by one or more qualified expert witnesses.

The reason: “Relying on video evidence without expert interpretation risks failure to reach the correct conclusions based on the evidence or worse, reaching the wrong conclusions,” says Hak. “Expert analysis and interpretation will assist in understanding the impact of such technical and practical issues as multiple camera views, frame rated, aspect ratios, compression, the tracking of people, vehicles and objects, and the alignment of audio to video images.”

“The Supreme Court of Canada, in R. v. Nikolovski, recognized and endorsed the analysis of video evidence at the image by image level, clearly accepting that merely playing surveillance video evidence will not maximize the value of such evidence,” he adds. “A properly trained and qualified expert will have spent many hours examining the video evidence and can assist the trier of fact in appreciating not only the overall events that are depicted but the fine details that are often otherwise overlooked or misunderstood.”

The bottom line

Video evidence is a lot like nitroglycerin: Properly handled, it can demolish an opposing counsel’s case. Carelessly managed, it can blow up in your face.

For this reason, those offering video evidence need to use it with the greatest of care. Meanwhile, those trying to oppose such evidence should be meticulous in their attack, because there are ways that such evidence can be legitimately challenged as irrelevant, inaccurate, unfair, unauthenticated, and prejudicial, and thereby excluded from evidence.