We live in an era where almost everyone has near-instant access to a high-definition camera. The ubiquity of cell phone video is a windfall for investigators and prosecutors and is playing an ever-increasing role in both civil and criminal court cases.
Altercations, including police Use of Force events and various other criminal activities, are now commonly captured as evidence for a multitude of reasons:
- Some people simply want to ensure justice is done and believe a video recording will help.
- Some people dream of posting the next viral video and receiving their 15 minutes of fame.
- Some people were simply in the right place at the right time, and since their phones were already out, they just hit the record button.
When the captured images involve criminal activity, those videos can lead to both positive and negative outcomes for the community; and law enforcement is expected to respond to every recorded event.
In serious cases, once the scene is secured and the investigators start their assessment, the first goal is often to find all the witnesses. The perception among most police is that there is usually no better witness than video. Recent concerns about data tampering, editing, and deep fakes, however, has caused many legal practitioners to ask the question “Is that cell phone video admissible in court”?
Like most legal matters, the answer to the question is “it depends”.
There is no definitive answer as to whether cell phone video, or any evidence for that matter, is admissible in court. There are some basic rules that you can use to enhance your position, but in the end, the decision is ultimately made by the judge.
Here are a few things the judge will consider when determining the admissibility of cell phone video evidence when the visual evidence is challenged.
Cell phone video admissibility in court: Considerations
1) Is it relevant to the case?
In general, for evidence to be allowed into court, the judge must consider it relevant. Relevancy can have a wide berth, however. The fact that we as a society record billions of hours of video every day, often leaves most investigators and attorneys overwhelmed when it comes to video recordings that may not get to the heart of the issue at hand.
2) What are the local laws surrounding two-party consent?
Video recordings often also contain an audio component, especially with cell phone recordings. In public spaces, audio is often protected as ‘private communication’, unlike the video component, which is protected under the premise that any activity that occurs in a public place cannot be held out to be private. For this reason, video captured in public areas is not subject to the two-party consent laws, but the audio often is.
The next challenge you may have to address is whether the law in your jurisdiction requires two-party consent. Every locale is different, which is why it is important to confer with your attorney or prosecutor to confirm any rules around two-party consent.
For audio recordings in Canada, you would typically be covered under Section 184 of the Criminal Code which states that recording private conversations is legal, as long as one of the parties involved in the call consents to the recording. In the United States, however, each state has its own laws governing one-party versus two-party recordings.
Depending on the situation of the recording, this may impact your legal authority to present the audio portion of a video recording as evidence.
3) Is it authentic and unedited?
This leads us to the next potential legal challenge to admissibility. Social media videos and crowd-sourced images easily go viral and quickly spread, catapulted by sophisticated social media algorithms.
These videos can undergo much more scrutiny if their admissibility is challenged. When submitting video generated by a cell phone, the proponent of the evidence must be able to authenticate the images, and they may have to validate the integrity of the complete data file.
Authentication often requires having the person who recorded the video testify that it is authentic and unedited. In some cases, an eyewitness to the depicted events can be used as the authentication witness, even when the source of the video is unknown.
4) When did the recording take place?
When it comes to cell phone “crowd source” videos, most people start recording when an event has already started. Visual evidence that captures only part of the event is incomplete and the absence of a complete record of the activity may be successfully argued as prejudicial evidence that could potentially mislead the trier of fact.
As an example, let’s say that person A punched Person B, and person C sees this and then starts recording the video from his cell phone. The video goes viral on social media and shows Person B throwing the first punch. This video would be very misleading if presented without balancing evidence that told the complete story with equal weight that the images might carry.
5) Are there factors that change the perception of the video?
Most people tend to believe that ‘video is the silent witness that speaks for itself’, but that antiquated adage is dangerous, based on a deep lack of understanding about video compression and its technical pitfalls, and is simply not the case.
In addition, technical effects of lighting, image timing, predictive compression, lens distortion, dropped images, and even bias, contribute to error and influence the ultimate question of admissibility.
Is other video admissible in court?
Cell phone video is not the only source for visual evidence that finds its way into a courtroom. Attorneys may submit video evidence from a myriad of sources, including:
- Police body worn cameras (BWC)
- Public video surveillance (CCTV, ATM, etc.)
- Traffic cameras
- Home security systems
- Dash cameras (in-car video)
- Doorbell cameras (Ring, Nest, etc.)
- Drone camera
- Social media video
Each camera and each camera angle can provide potentially competing testimony of the evidence. Cell phone cameras can produce sharp HD images, but they can only produce a single perspective of the depicted activity. Security cameras mounted on a building or light pole may be able to capture a larger area, but they may not have adequate resolution, and no amount of zooming is going to improve the image accuracy.
Regardless of the type of camera, each source of video evidence that is challenged will be considered by a judge to determine its admissibility. The previously labeled ‘Silent Witness’ will need a human voice to give it relevance, perspective, and weight.
What tools are available for investigating cell phone video evidence?
Investigators and attorneys should be mindful to interrogate all video evidence, including video from cell phones, before assuming it is fit for court.
Eyewitnesses are always interviewed or interrogated by investigators to ensure they are not biased by the events or the parties involved. Investigators want to know as much about the witness as possible. They want to know the witness’ name, address, phone number, birthdate. They will want to know where the witness was standing and what the witness saw, and they need to assess whether the eyewitness is truthful and was capable of seeing what they purported to witness. The same due diligence applies to video evidence.
Investigators and prosecutors need to know if the video evidence is fit for the purpose for which they want to use it.
In the quest for video interrogation, there are several types of tools to consider:
1) How do you retrieve cell phone evidence?
The most common source of cell phone evidence is, of course, social media. People love to post their videos online, and this public space often provides opportunities for investigator.
However, investigators must consider that the person who uploaded the visual evidence may have edited the video to highlight the main event. Investigators should attempt to recover the original video data, either from the person who recorded the video, or by other authentication means.
The easiest way to capture recorded cell phone videos is to leverage something like Axon Citizen, which allows officers to send sharing requests directly to another smartphone. The person who recorded the video receives a link where they can directly load their recording into Axon Evidence, ensuring the original file is saved and tracked from capture to courtroom.
While recovering the original data can often be done via a simple request or by a search warrant, acquisition may also require technical competence, precision, and physical connection to the device. Direct access to most cell phones can be accomplished via specialized tools from companies such as Cellebrite, who produce a family of sophisticated technologies dedicated to the acquisition and analysis of cell phone data.
2) How do you retrieve the video evidence from a security system?
Products such as DME’s DVR Examiner allow investigators and analysts to access a DVR Hard Drive directly and bypass many system passwords to recover data from both active and non-functioning systems.
3) How will you organize and store the evidence?
If you recover multiple video files from multiple sources, it is important to store them in a central database. This can be quite challenging as both security systems and mobile devices are capturing at a higher resolution than ever before. While capturing more detailed images helps with picture quality, the size of the files can become massive.
Storage, file management, and proper audit trails can be a nightmare without a solid evidence management system such as Axon Evidence.
4) How will you view and authenticate the evidence?
While most cell phone videos are recorded in standard formats, not all video encoders are equal.
The vast majority of DVRs produce images that only play back with specialized proprietary players. DVR manufactures often obfuscate access to their visual data in order to force the end user to invest in their proprietary solution for playback. Since there are literally thousands of DVRs in use in public and private venues, police investigators cannot possibly maintain individual equipment from every manufacture to cover every eventuality.
Axon Investigate is a best of breed tool designed specifically for police investigators who want instant and accurate access to their video evidence, without the need to install proprietary software into their departmental IT infrastructure.
Axon Investigate provides a simple drag, drop and play interface, giving investigators and attorneys the immediate capability to review video accurately, with lossless frame reproduction. The technology walks the user through a simplified interrogation process, answering most of the questions needed to prove authentication.
Additionally, video evidence can be divided into relevant subclips, still images can be accurately extracted with a single button push, visual case notes can be produced and tagged to specific images or clip, and multiple video sources can be synchronized into a single exhibit, producing compelling exhibits.
5) What if you have video files from multiple recording devices like proprietary security systems?
Most investigations are not limited to cell phone video. Criminal cases often involve video from a variety of sources that can all be used to validate and authenticate the others.
Having a single software solution that allows investigators to interrogate the video evidence, regardless of source or the proprietary nature of the data, is critical to a successful and timely investigation. Software, such as Axon Investigate, which plays thousands of proprietary video formats, can propel an investigation forward, contributing to an effective, accurate and speedy outcome.
6) How will you present the video evidence in court?
Many courtrooms lack the proper setup for playing video evidence, with poorly maintained projectors and old projection screens being far too common. You will want to ensure that there is a good solution to display video evidence in court, otherwise the evidence could easily be missed or misinterpreted.
Always remember that your audience, today’s juror, owns and operates a cell phone and generally adopts the belief that your eyes do not lie.
After interrogating your video file and verifying that it is an accurate witness to the facts, accurate reproduction of the images is critical to the court record.
Can you trust cell phone video evidence?
If you asked the average person on the street if they trust video evidence, the resounding answer would be, “Yes!”
A survey of professional investigators has shown that the majority of experienced police investigators either agree or strongly agree that video is the “silent witness that speaks for itself.” This is akin to trusting every eyewitness, simply because they say so.
In reality, no video used as evidence should get the benefit of blind faith. Video evidence must be interrogated properly to evaluate its reliability, its credibility, the nature and effect of potential exhibits produced from the images, and ultimately the weight that it should be given.
Video evidence can be easily altered, either nefariously or unintentionally. Video can be purported to represent something it is not. Video evidence can be used to argue a position not fit for the purpose of the images.
Timing of force events, speed of vehicles, color of clothing, shape and size of suspects, and more can all be easily misinterpreted by the untrained advocate of the evidence and the unsophisticated consumer of visual exhibits in court.
Few Use of Force and Internal Affairs Investigators fully grasp what happens when a few frames are dropped in a video depicting an altercation between police and a suspect. An example of this occurred recently in Ottawa, Canada. Police Constable Daniel Montsion was charged with murder after investigators made critical errors in the initial recovery and misinterpretation of key video evidence of a violent altercation with a suspect.
Certified Forensic Video expert, Grant Fredericks, testified in this case at the Ontario Supreme Court. He used Axon Investigate during the trial to help the judge understand the frailties of the unreliable video evidence.
Despite the judge’s ruling that the video was not fit for the purpose of determining force, the critical argument held by the prosecutor, the news media continued to argue the prosecutor’s case, even after acquittal.
Fredericks posted an article about the recent court decision to help explain why the media interpretation was wrong:
“This week’s ‘Not Guilty’ ruling in the murder trial of Ottawa Police Constable Daniel Montsion has provoked continued misuse of altered video by the Canadian media. The Prosecution’s video contained in the latest Craig Lord Global News reports was rejected by the trial judge last year. I testified for the Defense in this case, and demonstrated how the prosecutor’s video was processed inaccurately, giving the illusion of increased speed and force. The judge chose to use the accurate Axon Investigate exhibits created from the original proprietary PSF file. I demonstrated how to create accurate video evidence with Axon Investigate live in the court room. The Axon Investigate exhibits showed a stark difference to the appearance of force when compared to the prosecution’s biased exhibit that was created by screen capturing the video from the DVR player.”
Judges and lawyers do not always understand that the nuance of video evidence is often a complexity beyond their skill set, which is why police investigators need training and knowledge to accurately interrogate their own video evidence. Taking the extra time to properly prepare and present the video evidence the right way can be simple, but it is a critical part of conducting a video-centric investigation and a responsibility of every police officer relying on video evidence.
The Axon Investigate team is here to help empower investigators with intuitive tools, expert training, and comprehensive support to successfully advance a video-centric investigations. We strive to ensure every investigator can extract actionable intelligence from video evidence and quickly solve the technical challenges that are common in video files.
Disclaimer: The information contained in this post is for informational purposes only, and is not a statement of law. This information is not intended to provide legal advice and should not be interpreted such. Readers should always confer with an attorney to obtain legal advice and consult with local, state, and federal ordinances and laws in their applicable jurisdiction.
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