WHY VIDEO EVIDENCE IS REJECTED BY THE COURTS

By Ronald A. Peer

Let’s say you’re a personal injury attorney working with a videographer to develop a video documentary that portrays how your client’s life has changed as a result of being injured.  Such video evidence is usually called a “Day-in-the-Life” or “Slice-of-Life” documentary, and focuses on the client’s “activities of daily living” (getting out of bed, eating, bathing, walking, try to do the simple things he used to do).  Often the plaintiff’s life has been permanently and irrevocably altered and it is the goal of the video to show how exactly what your client’s new life is like as a result of “the accident.” 

Restitution for damages can involve a great deal of money and, because of these high stakes, you want to be assured that your video will be accepted into evidence and win your case.  Therefore high standards must be maintained when shooting and editing the documentary.  Consider the reasons why the video may NOT be admissible in court:

1)     Poor audio and video, resulting in unintelligible evidence.  Most likely the videographer was a novice and did not use proper equipment and techniques (i.e., microphones, lighting, lens exposure, camera placement, etc.). 

 2)     The video images, as a whole, do not fairly depict what they are purported to represent, giving the opposing attorney an opportunity and valid reason to object to the evidence.

  3)     The video contains extraneous prejudicial matter that causes undue bias in favor of the plaintiff.

  4)     The images are gruesome and shocking, resulting in overkill.   These type of images appeal to “the emotions of jury” and are often ruled as prejudicial by the judge.  Avoid “blood and guts” excess.  Remember, honesty and accuracy are the keys.  

  5)     The images have been shot in a manner that skews, biases, or otherwise distorts the image.  Once again this is prejudicial and results in inadmissibility.

  6)     The video image lacks the necessary reference points or measurement indicators to clarify the scene.  In other words, the video is confusing and potentially prejudicial.

  7)     The evidence has been selectively edited, “staged” or otherwise modified.  There should not be any “scripted” narration.  The video should not appear to be a highly-polished “Hollywood” production, resulting in lack of believability and credibility. 

  8)     There has been a significant lapse of time and change of scenery between the time of the incident and the shooting of the video.  Events and circumstances no longer correspond.

  9)     Changes in lighting, sun position, haze, smog or cloud cover have affected the video, resulting in inconsistencies, causing it to be thrown out.

  10)Captions, extraneous text images, and background music are unsuitable and improper -- constituting inadmissible hearsay.

Ultimately, in regard to your case, the court has the final say as to what is admissible or inadmissible.   But following these guidelines with your videographer improves the odds that you will reap a victory in the courtroom. 

Ronald A. Peer is the owner of Peerless Communications Legal Video Services, based in Phoenix, Arizona.  As a videographer, he adheres to the legal deposition guidelines offered by the American Guild of Court Videographers and National Court Reporters Association.

Mr. Peer can be reached at http://www.peerlesslegalvideo.com or 602-920-3296.