Exploring the legalities surrounding taped evidence
By Mark T. Baganz, Esq.
Legal columnist for The Police Marksman magazine
Many law enforcement squad cars have video cameras which produce audio and visual recording of stops made by an officer. These squad camera videotapes have made their way into the field and are now making their way into the courts. Yet the technological advances in the field of audio and visual recording are continuing to create new challenges for the courts and law enforcement agencies alike. Along these lines, a review of some of the present documented uses of video evidence includes the following:
Presently, video tapes are being used by appellate courts. Most recently the US Supreme Court Justices had the opportunity to review video evidence from a squad car which was involved in a high speed pursuit. The case is Scott v Harris, Supreme Court Docket No. 05-1631. This case involves the question of use-of-force. Oral argument was held before the Supreme Court and the case raises the issue of the use of a squad car to end a high-speed pursuit by making direct contact with the pursued vehicle. The Justices reviewed the video tapes in their analysis concerning an officer’s use of force.
Video tapes are also used at the trial court level. Some squad car videos have been used as courtroom evidence to assist in showing the justification for use of force by law enforcement officers. See, for example, Draper v. Reynolds 369 F. 3d 1270 (11th Cir. 2004) (the officer’s use of a Taser was a justifiable use of force under the circumstances).
Video tapes from surveillance cameras have been held to have probative value and therefore were admissible in the trial of the suspected robber. See United States v. Curtis 344 F. 3d 1057 (10th Cir. 2003).
It has been held that certain video tape evidence was direct evidence of a defendant’s involvement in a drug conspiracy and therefore was admissible into evidence at the defendant’s trial. See United States v. Jones 275 F. 3d 673 (8th Cir. 2001).
Video tape evidence has also been reviewed by the court for purposes of determining whether or not there was probable cause for the stop. See, for example, United States v. Muriel 418 F. 3d 720 (7th Cir. 2005).
In light of technological advancements, it has also been held that a digitally enhanced video (in which a video was enhanced by changing the format from analog to digital by a technician using commercially available software) was admissible into evidence at the trial of a defendant charged with arson. See United States v. Seifert 351 F. Supp. 2d 926 (D. Minn. 2005).
Many of the legal issues involving videotapes appear to be those types of questions normally involved with other evidentiary concerns. For example, Federal Rule of Evidence 1001 defines “photographs” to include video tapes. Accordingly, the evidentiary requirements of authentication and identification would have to be met to lay the proper foundation needed to actually get a particular video tape into evidence. See, for example, Federal Rules of Evidence 901 through 903.
Furthermore, the arguments for and against the admissibility of video tape evidence mirror those arguments involved in other areas of evidentiary concern such as challenges based upon arguments relevancy (see, for example, Federal Rules of Evidence 401 and 402) and unfair prejudice (see, for example, Federal Rule of Evidence 403).
Therefore, it seems that the use of video tape evidence, provided that the proper foundation is laid and the other rules of evidence are met, will continue to be admitted into evidence in the courtroom.
However, the question remains – what about the use of video tape evidence before the actual trial? Certainly it is important to prepare for testimony in court. Accordingly it would seem practical for an officer to review his video tape squad camera evidence in anticipation of testifying in court.
Under Federal Rule of Evidence 612 (Writing Used to Refresh Memory) it is interesting to note that the rule itself only contains the word “writing” and does not specifically include video tape or other such electronic visual or audio recording. However, some courts have held that despite the fact that the rule only uses the word “writing” the rule actually encompasses “anything” which a witness uses to refresh memory for purposes of testifying. See Kuklinski v. Rodriguez 203 Wis. 2d 324, 552 N. W. 2d 869 (Ct. App. 1996). Logically, it would seem that a video tape would be the type of material which a witness would be able to review for purposes of testifying in court. Here, too, the focus is on the actual evidentiary concern for trial purposes.
But are we missing the boat? Are we waiting too long to review the field evidence recorded by the video cameras before we even write our reports? Perhaps looking at squad cameras as extensions of the officers themselves would give a new perspective to law enforcement. In other words, conceivably squad cameras could be viewed as a real time, factual recording (“video notebook” if you will) of the circumstances which the officers confronted. Is not the video tape actually an extension of the officers’ own personal knowledge of the events surrounding the situation?
This silent eye-witness certainly is going to be used against the officer by defense counsel. There have even been suggestions by some that effective cross - examination of officers would include using the video and a counter to zero in on impeachment issues.
Officers are many times required to make field notes for the purpose of refreshing their memories when they finally get time to write their police reports. Those same officers are allowed to review their field notes for purposes of preparing their written and official reports.
We have equipped officers with the “video notebook.” Why would it not be feasible and proper for officers to review their “video notes” for purposes of preparing their written and official reports? After all, the video is recording the events of which the officer herself/himself actually has personal knowledge of. It is a “video writing or recording” of what the officer was actually confronted with.
This article has only scratched the surface of some of the legal issues and department policy considerations confronting officers, departments and municipalities when dealing with “video cameras.” The focus of this particular article has been to give a brief synopsis of not only the present evidentiary use of video tapes at trial but also of the potential possible future uses to which the videos could be used to enhance the accuracy of report writing and the establishment of the truth of what actually happened out on that street. Why should the impartial, video witness be excluded from assisting law enforcement officers in the performance of their duties?
Accordingly, in light of the myriad and complex issues involved in video cameras and their potential use and effect, perhaps it would be prudent to evaluate department policies and training in light of the actual standards, duties and obligations imposed by law.
What does your department policy require of officers when they are writing their reports? What are your department’s policies concerning the use of video tapes and the reviewing of those “video notes” when writing reports? Are officers entitled to review those video tapes? Are those video tapes only to be used to try a trip up an officer? Are those video tapes an extension of the officer’s eyes and ears? What steps has your department taken to train officers with respect to utilizing the squad cameras as investigative tools to enhance accuracy and actually capturing the events on camera?
These are just some issues which should be considered. There are others.
As a final observation, it should be noted that the very nature of video evidence involves the potential for serious, legal consequences. It is strongly recommended that officers consult their respective legal advisors and local municipal attorneys for guidance concerning these issues. They should be addressed at some point in time - preferably sooner than later.