The use of video evidence in litigated matters is commonly categorized as a type of impermeable or uncontested proof, deemed certain to overcome issues of liability and fault if permitted entry into evidence. Yet, in current times of ever increasing technological advancements, the evidentiary value of video evidence cannot be characterized as the type of unquestionable proof that litigators once relied on. Increasing amounts of available resources, extending primarily from technologies such as digital media, digital devices, and the internet, have led to widespread concern amongst parties involved in civil litigation regarding the potential for admittance of tainted evidence.

Nowadays, the vast majority of video evidence is created and stored digitally, thereby creating a scenario in which it is far too easy to alter, enhance, modify, improve, and even delete entire contents, or portions, of such evidence. Prior to digital media, video evidence was typically obtained through the use of VHS cassette tapes. This type of video storage, by its very nature, did not afford much opportunity for the alteration of its contents, due to the risk of destruction or the discovery of obvious signs of tampering. However, even VHS cassettes can be manipulated with current technologies, thereby further complicating evidentiary matters concerning video evidence.

A chief concern regarding the reliability of video evidence is that the manner in which such evidence is created or stored is beyond the general knowledge and understanding of laypersons. As such, it is not always immediately possible to detect the presence of video evidence tainting. Accordingly, the most obvious and perhaps most important aspect of the video analysis process involves establishing authenticity. Pursuant to Federal Rule of Evidence 901(a), “to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” A good rule of practice, therefore, might be to validate the authenticity of video evidence through the employment of a video authenticity analysis expert whenever such evidence has the potential to effect an outcome.

In the typical civil action, video evidence that is expected to be used at trial is exchanged amongst parties during the discovery process. It is not uncommon for an opposing party to provide such information in a format that prevents the viewer from gaining a full understanding or realistic perspective as to the video’s actual contents. This practice is analogous to that of an insurance adjuster providing opposing counsel with black and white print outs of damage to a motor vehicle following an auto accident. Through the use of a video enhancement expert, the video can be examined to determine if enhancement can provide a more accurate depiction. During the enhancement process, or in cases in which enhancement is impossible or inadequate, a video expert may investigate further to determine the source, format, or other properties concerning the creation or origin of the video.

The increasing presence and availability of technological resources have forever altered the manner in which video evidence-dependent matters are determined. If parties to litigation continue to accept video evidence as realistic portrayals of accurate evidence, then perhaps, so will the jury members that determine these matters. With the ever increasing presence of technological advancements, it seems that video evidence will remain a problematic concern for civil practitioners and the parties which they represent. Consequently, absent the presence of video expert support services to confirm authenticity and reliability of video evidence utilized in civil matters, the litigants to these matters may find themselves swimming in sea of inadmissible evidence.

By: Alicia McKnight, J.D.