The Dos and Don’ts for Making Video Evidence Admissible in Court

Work Tips
2022-03-01

If you’re looking to get someone convicted of a crime you know they’re guilty of, it’s imperative to follow the protocol. Those who find themselves presenting digital evidence in court are up against a lot of pressure and it’s easy to get caught up in the pitfalls, some of which could render the evidence inadmissible and thus cost you the case.

Thanks to the advancement of technology, many CCTV can now capture detailed footage without costing an arm and a leg. Therefore, video evidence has risen in prevalence and numerous court proceedings rely on it to determine the outcome of a case.

But with different providers comes the challenge of specific file formats, preserving the authenticity of the recorded footage, and a myriad of other hurdles you’d best get acquainted with in advance.


FACT: Video evidence is estimated to play a role in 80% of crimes. (Source: bja.ojp.gov)

In today’s post, we’re going to impress you about the key differences between admissible and inadmissible audience and lay out the best practices for making sure you don’t get tangled up in any unpleasant surprises in court.

4 basic types of admissible evidence

For evidence to be considered admissible in court, it needs to establish a fact and be relevant to the case. The basic types are as follows:

  • Demonstrative: Establishes a fact. For example, video evidence may display footage of a person breaking into a vehicle. It demonstrates a crime has taken place as well as the circumstances surrounding it.
  • Testimonial: A witness may be summoned to the court to recap the events of a crime that has taken place.
  • Documentary: Any type of document that is relevant to the case. For example, this may be a contract of employment.
  • Real: An object relevant to the case. Examples: shards of glass, a murder weapon, etc.

Video evidence falls into the demonstrative category because it accurately retells the story of what happened, step by step, picturing every relevant detail. It is used to establish a fact.

Evidence may be ruled inadmissible if it's:

  • Hearsay: If a witness retells the story of what someone said outside of court, their words may be difficult to prove. Although hearsay is generally inadmissible in court, there are a couple of notable exceptions to the rule.
  • Unfairly prejudicial: Inducing a jury’s outrage by presenting gruesome video footage that adds little to nothing substantial to the case is often excluded.
  • Wastes time: A fact does not need to be established multiple times. If the evidence fails to bring anything new to the table, it can be seen as a time-waster.
  • Expert testimony: While an expected testimony can be admissible, in case the witness fails to present the qualifications necessary, it can be ruled out as evidence.
  • Privileges: If testifying would make the witness break an oath (for example, a doctor or a priest being asked to reveal something shameful or confidential about an individual that was entrusted to them), the evidence may be ruled out. This, however, is a complicated area of the law; under certain circumstances, a right not to testify can be waived.
  • Character evidence: In case a litigator attempts to establish that the defendant has certain character traits and that the defendant has acted accordingly to these traits, this kind of evidence can be considered inadmissible.
  • Misleading: Evidence may be ruled out when it attempts to draw a false correlation or tries to build a case that’s based on assumption. For instance, the defendant may belong to an ethnic minority, but that alone does not necessarily make them prone to violence.

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Hearsay and speculation are NOT enough to get someone convicted of a crime. We need concrete evidence of an eye-witness.

What makes the difference between video evidence that is admissible in court and the one that isn't?

Admissible evidence is the only kind of evidence that can be taken into the equation when determining the outcome of a case. After all, the goal is to bring the truth into the light and to do so, we need facts, not assumptions or unverified information.

The mantra is to prove something beyond a reasonable doubt; as such, the evidence presented needs to meet certain criteria and standards. Otherwise, it can be deemed inadmissible and is effectively ruled out of the equation.

If evidence is considered inadmissible, what are the consequences?

This simply means that the evidence presented cannot be used in court. Inadmissible evidence cannot be used to prove or disprove a fact and is essentially irrelevant to the case.

Hence, a digital video forensic analyst must pay close attention to the protocol and follow it diligently. For a criminal trial to result in a conviction, it is essential for law enforcement personnel to closely collaborate with the prosecution.

Is video evidence enough to convict the defendant?

As long as the evidence is admissible in court and provides incriminating proof, the answer is generally “yes”. However, it must provide answers to several questions, including the identity of the person on the tape and what crime has been committed.

At the same time, the video forensics examination must rule out the possibility that the footage in question has been tampered with. In addition, it must not be altered with forensic video enhancement that utilizes AI technology, lest it runs the risk of being deemed inadmissible.

Making video evidence in court admissible: The dos and don'ts

Now that we’ve established the basic criteria, let’s go over the dos and don’ts of how to prepare and present video evidence in court:

DO: Prepare your material in advance

Never enter the courtroom unprepared! After doing all the hard work of CCTV investigation and video retrieval, you don’t want to get caught up in a technicality such as a playback incompatibility or a similar issue. Instead, think ahead and imagine anything that could potentially thwart your plans and think ahead.

The solution is to do your due diligence and simulate a live playback session at least a couple of days prior to the big day, so you can get familiar with the technical side of things. You can also rehearse at home or at the office and go through the exact steps you’d take when the court hearing is scheduled. Be advised that footage obtained from CCTV cameras is often saved in weird formats only specific software can open, so don’t assume it will just play on any computer.

To be extra sure you’ve got every situation covered, see if your forensic video enhancement software allows you to export the video footage to other formats that are easy to open on most computers and smart devices without installing additional codecs or specialized software. If you’re looking for a recommendation, know that VIP 2.0 allows you to do exactly that thanks to its Ultra transcoder and player feature. In addition, it also comes with many other features as well!

DON’T: Compromise the chain of custody

To be admissible in court, it’s important that a piece of evidence adheres to the chain of custody standards. In essence, this provides proof of its integrity and it’s imperative to document who was left in charge of looking after it at any given time. Otherwise, its credibility could come under question.

In fact, a chain of custody should be established both visually as well as digitally. A skilled digital video forensic analyst will extract data from the source device and make copies without altering the original file. Still, it’s important to document everyone who has ever come into contact with the evidence.

DO: Present original audio and video recordings

If at all possible, present original footage to the court, otherwise it can be misrepresented. Even something as seemingly innocent as digital compression can jeopardize the authenticity of the video. The objective is to make an accurate reconstruction of the events. A forensic expert needs to make sure that the footage is legitimate and authentic.

Even so, there are cases where forensic video enhancement must be used for the sake of clarification. However, bear in mind that these are risky waters and only an industry-grade all-encompassing video forensic software such as VIP 2.0 is suitable to avoid jeopardizing the authenticity of the footage (and potentially the entire case).

In other words, you need a comprehensive all-in-one digital forensic solution capable of handling complex tasks such as video recovery, retrieval, enhancement, analysis – all under one roof. This way, you won’t have to worry about compromising the integrity of the recording.

DON’T: Forget to bring the playback gear with you

Many modern courtrooms are equipped with computers, speakers, and other multimedia devices these days, but when the outcome of the case depends on it, you never want to leave things to chance. Even if they do have the IT gear, you could find out it’s outdated and thus unsuitable for presenting the evidence with the level of detail you need. Or, it could break down in the time of need.

At the very least, bring a laptop with you and a giant set of speakers. Maybe a projector if it’s important for everyone to zoom in on the details. You could also get in touch with the court’s IT staff and ask them what is available on-site. But even so, technical hiccups do happen, often at unprecedented times, so it never hurts to have a backup.

Projector-1920Modern projectors easily fit into the palm of your hand, so carrying one around is not that big a deal.

DO: Label the copies accordingly

Remember how we advised you to bring the original footage with you? While the point still stands, don’t assume that your work ends there. Since you never know who’s going to ask for a copy, make sure to have enough of them available to present on-demand.

Also, don’t forget to label them accordingly. Study up on the exact requirements in your local area and make sure the sticker contains the correct information. One issue you could encounter when trying to do this is that you find out the sticker has larger dimensions than the medium you’re trying to mark (e.g. a flash drive). In this case, the solution is to find a transparent plastic bag that’s big enough for you to fit the sticker on and place the storage medium inside.
Storage media comes in different shapes and sizes. If it’s too tiny to place a label on, place it inside a transparent plastic bag and put the sticker on top.

Conclusion

Preserving the integrity of video evidence in court is integral to your victory.

You can’t afford to let a criminal walk free due to a technicality, so you must do your absolute best to give them no breathing room and bring them to justice!

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