The video evidence you have can seem like the smoking gun that will sway the jury and win your case.
After all, how can the court argue with what’s actually on camera?
Before you start to celebrate, take a brief step back and remember that things aren’t always what they seem. That’s true of life in general and in the case of video evidence being presented in court.
Is the video relevant and reliable?
To be admissible in court, all evidence must meet 2 basic standards. It must be relevant to the case at hand and it must be considered reliable. To be relevant, your video doesn’t have to catch the person in the act. But it must at least prove some point that would contribute to your overall case—for example, proving that the person was at the scene.
Reliability can be challenging in video cases. First off, it must have been lawfully obtained and from a credible source. Furthermore, it must be established in court that the video was not tampered with. Lawyers will usually work with expert witnesses to prove authenticity and may also call in the person who shot the video to testify.
Cellphone video has become extremely common, but these videos are also more likely to have reliability issues. The quality of the video may be shaky. Proving where the person was when they took the video can be more difficult and establishing what time the video was shot may also be tricky.
Additional requirements
Aside from the reliability of the video, there are other factors that must be considered when presenting a video in court.
- Chain of custody. Videos can be easily manipulated. If the jury is not aware of this, be assured the opposing attorney will make them aware. That means a reliable chain of custody on your video is imperative. It must be clearly documented who handled the video and those people need to be reliable themselves. Otherwise, the jury may be persuaded that tampering might be involved. Even a little bit of doubt ruins your smoking gun.
- Original recording. It’s permissible to use copies of a video in court. It may even be necessary, as enhancements (not alterations) may be needed to show the jury clearly what you want them to see—e.g.. enlarging a certain portion of the footage. But you still need to have the original copy on hand and if any enhancements were necessary, written explanations as to why and what was done will be important.
- Redaction. Privacy laws require that personally identifiable information—like faces and license plates—be scrubbed from the footage. That means you’ll need a forensic expert to scrub the video in a way that preserves the vital evidence while adhering to privacy law.
If your video is as compelling as you think, be aware that the opposing legal team will do everything in their power to either prevent it from ever being shown in court or being perceived as reliable by the jury. That’s why following proper protocols for video evidence is an absolute must in today’s digital environment.