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Cell Phone Videos and the Courts: 5 Considerations to Preserve Your Amazing Footage

Cell phone video can be invaluable in court

The following article was submitted by Isaacs & Isaacs Law Firm:

So it was your day to witness some extraordinary event. You had your mobile device on you, you managed to think clearly enough to press record, and there it is, stored on your cell phone – video footage of some wrongdoing the authorities, and perhaps the world, will need to see.

This is gonna be huge.

While your video might indeed go viral, will it have the elements that allow it to be discussed and maybe even admitted into legal proceedings? Not a crystal clear answer on this one. But with the varying states’ rules of evidence largely modeled after the Federal Rules of Evidence, here are some important considerations should your cell phone video have its day in court.

Authenticity: Do not edit your original video

Preserve your video in its original format. Ensure that the video accurately represents the reality of the events and does not include editing to tell a version of the story that may result from personal bias or prejudice. It’s one thing to present your video for a YouTube audience, but for the courts, consider these safeguards:

Do not trim your video for length

Do not add a filter to change the lighting

Do not add personal audio commentary or text

Don’t even think about making it into an autotuned music video -- well, not yet at least

Attorneys and experts will hunt for indicators of both video authenticity and tampering. Best to keep your important video unedited.

2. Preserve the device that recorded your video

Trials can take a long time. The courts will often require investigators to prove where your video came from and exactly how it was recorded before it can be admitted as evidence. If it’s time for a phone upgrade, make sure you store the device that captured your important video in a safe place. It may be necessary for manufacturers to testify as expert witnesses and verify the authenticity and reliability of the device.

3. Do not delete the video from your device

Even if you’ve uploaded your video to the cloud, backed it up on external hard drives, shared it on Vimeo and posted it on Facebook, keep that original video on your phone. The time may come when your device gets subpoenaed as evidence for the purposes of examining or re-examining the content you captured in its original, unaltered format, before any sharing took place.

4. Pay close attention to how your video gets delivered to the authorities

The handling of a video for evidence is known as the “chain of custody.” The two most popular ways a video with potential evidence of wrongdoing gets delivered are:

voluntary delivery of the video to the authorities and;

confiscation of the device or memory card by authorities.

These are muddy waters in a difficult ongoing national debate and conversation regarding privacy of individuals. This challenge has lead the ACLU to develop and release the Mobile Justice App in 18 states so far, providing a way for the public to record and report interactions with law enforcement or other entities. The California version of the app states that “all footage and reports submitted through this app will be sent immediately to your local ACLU affiliate.” Similar video apps growing traction include:

Hands Up For Justice

I’m Getting Arrested

Five-O

Stop and Frisk Watch

These all have an eye on the preservation of your video in the event of possible device confiscation.

Should you decide to move forward and voluntarily deliver your video content to the authorities, realize you have options in how you go about doing that. A General Order regarding video evidence from the Metropolitan Police in the District of Columbia noted that the public can voluntarily hand over the memory chip or actual device that recorded the incident or, what some prefer, can “where possible and practicable, and in the presence of the [law enforcement] member, voluntarily transmit the images or sound via text message or electronic mail to the member’s official government electronic mail account.” Be sure to document the details of the person with whom you’ve had the voluntary exchange.

5. Rotate your mobile device into the horizontal position when you record a video

This important detail can dramatically impact the footage you capture on video. You want as much included in the shot as possible. Videos on your device are designed to be shot and displayed in a horizontal format so they fill the screen and look good on the device, on YouTube, film and that popular news station that will want a copy for their evening broadcast.

You accomplish this by tilting your phone horizontally when you record a video. Forgetting to do this may not delegitimize your video in a legal sense, but it’s possible that details critical to a case may remain off screen when you film vertically. Take a look again at the United Airlines passenger drag video and you’ll see a vertically filmed video. Golden rule: film horizontally.

All videos that capture events under legal review by the courts must prove to be relevant to the case and must be introduced within the larger context of the people and accompanying events at the scene of an incident. Collect it properly and preserve it rigorously. It’s possible it could be the defining piece of information that tips the scale of justice.


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