Big Brother can help a case: Video in the courtroom

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Mary French had a gut feeling that something was wrong.

Her 78-year-old mother, Lois McCallister, had asked her why the employees at the nursing home where she lived were hurting her. Concerned, French reported the comments to the staff. But the next day, she was told that McCallister’s comments were fabricated – a product of her advancing dementia.

While her mother was clearly struggling with her memory, French and her siblings were steadfast in believing her. So French and her husband purchased a “nanny cam,” which they placed in McCallister’s room.

The videotape French retrieved “caught a horrific series of events,” according to her attorney, Drew Duffy, a partner at Saltz, Mongeluzzi, Barrett & Bendesky in Philadelphia. Three certified nurse assistants were caught on film physically assaulting McCallister, removing her shirt and mocking her, he said.

The videotape is now the key evidence in both the criminal proceedings against the nurse assistants as well as the civil suit French and her siblings have filed against the nursing home, Quadrangle Continuing Care Retirement Community in Pennsylvania.

The case is just one example of the rising use of video evidence in the courtroom.

With electronic surveillance at an all-time high and smartphones equipped with video cameras, video evidence is an increasingly common – and important – element of a case.

“This is a recent phenomenon over the last few years, but it is a major difference,” Duffy said. “In the first phase of our investigation of a case, we will focus on where [the event] happened to see what buildings or ATMs are nearby equipped with cameras to see if there is footage that we can get.”

Getting it in

As a general rule, videotape evidence is easy to admit at trial, said professor Paul F. Rothstein, who teaches evidence at Georgetown Law. All that is necessary is for a witness to testify that the video footage is an accurate representation of the relevant scene, he said.

The bigger problems come with the probative value of the footage itself, he said.

Opposing counsel can challenge the credibility of the person testifying about the accuracy of the video as well as the images themselves. For example, the video may contain shadows or the lighting might be poor; the angle of the footage might exclude relevant off-screen information or there may be a lack of a chain of custody that creates suspicions about editing or tampering.

One reason video testimony can be so valuable to a case is that it is “more reliable than eyewitness identification if there is a clear picture,” Rothstein said. Whereas an eyewitness can be frightened or nervous and is susceptible to suggestions about identification, a good video can make or break a case.

But valuable as it may be, video evidence is not perfect, cautioned Lisa Steele, a criminal defense attorney at Steele & Associates in Bolton, Mass.

“Identification from video turns out to be harder than it looks,” she said.

She referenced a case in Sweden where Anna Lindh, a foreign minister, was stabbed to death in a shopping mall in 2003, an incident that was caught on the mall’s security cameras. Looking to find the suspect, the police released still images from the tape only to have a man call in and tell the police he recognized the assailant from the pictures: it was his son.

“The police held the son for about a week but he had an alibi,” Steele said. “His own father screwed up an identification from video.”

Courts will let a jury compare a still image from a video of a bank robbery to a defendant sitting in the courtroom or his or her booking photo, Steele said. But defense attorneys should challenge such a comparison because only the defendant is present – there are no other faces or images to compare, she said.

Steele recommended that defense attorneys have an expert take the stand to explain to jurors the challenges of video comparisons and identification, as well as provide studies to the court to document the science behind it.

Video sources for use at trial

Homeland Security is one reason for the rise in video footage, Duffy said. He is representing the plaintiffs in a duck boat accident in the Philadelphia area where video is providing key evidence.

The duck boat – a tourist ride around the city on land and in the water – was anchored in a shipping lane due to a problem with the radiator cap. The boat was run over by a 300-foot barge attached to a tugboat, killing two tourists. The horrific accident was captured on videotape by cameras placed in the port so that Homeland Security could monitor the area, Duffy said.

Businesses and buildings routinely use video cameras to help keep an eye on their premises, and footage from ATM cameras can also come in handy for attorneys, Duffy said.

For example, he is representing a man who got in an altercation outside of a bar on Market Street in Philadelphia and ended up being shot six times. The entire incident was caught on video from nearby buildings, Duffy said, and will be pivotal at trial.

While the McCallister nursing home case is still in the initial stages of discovery, Duffy said he was not concerned about the admissibility of the video evidence or credibility challenges at trial.

A chain of custody was maintained – as soon as French viewed the footage, she took it to the police, who still have custody of the tape – and his client can authenticate it, Duffy said.

“If [the tape] is going to be admissible in criminal proceedings where defendants’ liberty is as stake, it will be admissible in a civil proceeding with a lesser standard,” he added.

In the meantime, McCallister is now living with her daughter, for whom the video provided “disappointing vindication,” Duffy said. “Every frame she was hoping to see nothing but excellent care and instead she saw anything but that. Unfortunately, the horrific images are the best evidence of what happened.”