Video and Audio Evidence: What to Consider in a Rapidly Changing Landscape

MICHAEL D. SCHWARTZ, ESQ.
Attorney
Rains Lucia Stern, PC

Digital audio recorders (DARs), dash cams, body-worn cameras and city cameras are currently, or in the near future will be, standard equipment for every peace officer in every jurisdiction. Conversely, cellphones with digital video cameras, digital handheld camcorders, and all forms of digital cameras were for a short time the tools of small and large businesses promoting their products, or the toys of everyday people used to save precious moments with family and friends for posterity or nostalgia. While George Orwell may have coined the phrase “Big Brother” as a less-than-complimentary description of an overbearing government, with the advancement, miniaturization and mass manufacturing of recording technologies, “Big Brother” now has thousands, if not millions, of volatile and increasingly dangerous siblings in the form of a small but vocal group of people with an anti-law-enforcement agenda. With the advent of social media, those “tools and toys,” the video/cameraphones, camcorders and the like, have become weapons in the hands of an anti-law-enforcement, angry, electronic mob.

The recent acquittal of Corporal Jay Cicinelli and Officer Manny Ramos in Fullerton was great, euphoric. But the recent public trend that drove the criminal filing and the case for two and a half years from the original incident through the verdict cannot be ignored. Video and audio evidence has become increasingly more public and is, therefore, playing a more significant role than ever before, not just in law enforcement, but also in the public perception of law enforcement. In this new era, it is imperative that peace officers understand the significance of this technology, not only as pieces of evidence in the cases they investigate or the trials they later testify in but as an increasingly available media with the potential to influence the general public, prosecutors, police administrators and their officers. This article will serve as an introduction to some of the issues created by this technology and the effect it has had on cops, both on the street and in the courtroom.

I have had more than a few cases over the years where video and audio evidence were key pieces to the evidentiary puzzle. While I had a background in broadcast television before going to law school, and consequently an intuition about how video and audio evidence fits into the overall picture of a case, I am not a forensic expert. I have, therefore, routinely sought out the services of David Notowitz, forensic audio and visual expert and founder of the National Center for Audio and Visual Forensics (NCAVF). Using his knowledge and experience in the field, Mr. Notowitz has developed a list of key considerations to take into account when evaluating audio and video evidence in a case. With his permission, I have borrowed and tweaked (to serve the purpose of this article) several of those considerations, from an outline he distributes at lectures; I have also taken the liberty of adding some of my own.

Cameras Can Be Everywhere — and Usually Are

As the Fullerton/Kelly Thomas case demonstrated, security cameras are becoming more and more prevalent. In that case, the camera that captured the altercation between Kelly Thomas (suspect) and the officers was a City of Fullerton camera placed at the bus depot (there are others at other locations in the city as well) to help the City and Police Department better monitor what was known to be either a dangerous or problematic location. Yet the video and audio “evidence” from that case that actually drove the media, bloggers and ultimately a criminal filing were, ironically, not from the City or the Department, but rather from raw, poor-quality cellphone videos. Most of the actions of the officers and none of the actions of Kelly Thomas were captured in those cellphone videos. The snippets of visual and audio that did make it to YouTube and beyond created hysteria and a firestorm that still simmers, albeit only in sparse embers even after a quick, decisive acquittal. The public really has no concept, background, education or experience in the techniques used by law enforcement to effect arrests or to subdue dangerous persons. Sadly, the most vocal critics of law enforcement still expect their streets, possessions, and persons to be safe, but they want no part in knowing how that is accomplished. More and more frequently, the efforts of law enforcement to secure the public’s streets, possessions and persons is captured — or, more accurately, partially captured — electronically and almost instantaneously shared with an unlimited audience. The visual of law enforcement using violent or deadly force to subdue a threat to the public, no matter how justified or necessary, simply does not look appealing. No decent human being wants to see another person caused harm. Unfortunately, rather than applaud those who risk their own safety and lives, the knee-jerk reaction of the general public to recorded and highly publicized uses of force by police seems to be an understandable shock, followed by uneducated criticism. Years ago, lynchings were done in the back of the jail, the courthouse or even at times in the town square; now they are carried out electronically on Twitter, YouTube, radio talk shows, newspapers, and blogs.

If the above is distressing, it should be. Yet officers need to be aware that they are, in fact, being watched by a media and public ignorant of the role of law enforcement in our society and the challenges officers face daily in carrying out their duties. So, what can we do, you might ask?
Again, be aware: The officers in the Fullerton/Kelly Thomas case committed no crime. But some of the most damaging pieces of evidence were things they said while the altercation was going on and/or after the event while venting in disbelief to their fellow officers. Also, departments or associations may want to consider more detailed press releases at the inception of the event to potentially lessen the degree of negative publicity caused by viewer ignorance and the dissection of the incident by novices or amateurs. The information void caused by the silence of the department or association is usually filled with such things. A few well-placed facts or pieces of information can dilute the oftentimes over-the-top claims of department or officer “cover-ups,” such as the legendary “code of silence” so popular with the paranoid, illogical and ill-informed media and public.

Process the Evidence and Get Positive Information Out

When cases do present video/audio evidence and the accompanying potential for explosive public reaction, it is imperative that the processing, enhancing and evaluating of the electronic evidence begin as soon as possible. Although the investigation will be an ongoing process, that process needs to begin immediately. That way, if there is any electronic evidence that can be released along with or as part of an overall press release, it may be able to waylay some of the negative public reaction. At the very least, it can allow for more informed dialogue about the incident in the press.

Know the System From Which the Footage Was Gathered

The quality and workability of the evidence will be dependent on its source. Surveillance cameras, particularly older systems, are notorious for poor quality and the inability to enhance or even work with their footage. The age, type, and quality of the system is, therefore, instrumental in knowing what exactly you’re dealing with, and how much ability you or your expert will have to enhance, evaluate or work with the material. Dark footage, while on the surface it may seem problematic, can actually be easier to enhance, and thus evaluate, than brighter footage. Video footage may also be subject to “compression” when going from system to system. The closer to the original footage and, even better, the original equipment that the footage came from, the better the ability to enhance it, work with it, evaluate it or all of the above. Again, knowing the source and its strengths and limitations can be valuable information for a more informed press release or interview to help either dilute or debunk media claims based on partial or poor-quality footage.

Get an Expert on Board

Getting a trained forensic expert on board as early as possible is integral to the evaluation and eventual successful use of the material or, in the alternative, its neutralization as evidence against the officer. An expert will add an objective, trained set of eyes and ears to your team. Once that person knows the key issues and facts of the case, those trained eyes and ears can pick out details and nuances often overlooked by a less trained, less impartial observer. He or she will also know the potential for enhancement and discernment of that material, as well as its limitations.

Know the Material

For attorneys and clients alike, there is no substitute for knowing the video or audio like the proverbial back of your hand. Although a forensic expert is better equipped when evaluating the medium and its potentials, limitations and details, it is ultimately the attorney who will defend against the footage or, as I’ve had the good fortune to do, actually utilize that footage in his or her client’s defense. The attorney knows the legal and factual issues, and the client experienced what happened. Both need to be able to use the video to either bring out those legal and factual issues or, in the worst-case scenario, debunk or deflate the import of the electronic material in the government’s or administration’s case. Thus, there really can be no part of the material that is unknown, unfamiliar or not factored into the defense in some way.

In many of my cases where there was significant video or audio evidence (the Fullerton/Kelly Thomas case, the Ivory Webb case and the John Laurent case, to name a few), there were small facts or details in the material that we brought out during the trial that significantly changed how the jury viewed the case. I’ve had similar experiences in administrative hearings, OIS’s and even Brady reviews. Knowing the material allows the client the ability to better explain his or her state of mind during the event, and it allows the advocate an opportunity to better defend the case while explaining and validating the state of mind of the client.

We live in a rapidly evolving world. Technology seems to advance exponentially not only daily, but by the hour. What was once thought to be in the purview of James Bond or Star Trek has become commonplace. In this ever-changing society, the role and consequent difficulties of the men and women of the law enforcement community to effectively carry out their duties has also increased in stride with the advancements in technology. An unpredictably open and recorded world is the new reality for police work. It has been a great help, and can and will continue to be. But we need to understand its negative impact as well, and how to deal with that influence when it affects officers statewide, agency-wide or individually.

About the Author

Michael Schwartz heads Rains Lucia Stern’s Southern California practice. Michael is a highly regarded and experienced trial attorney. For the past 12 years, he has focused on representing peace officers in some of the toughest and most noteworthy criminal cases venued in Southern California.