Video images can provide significant information about what occurred during an event and about the people involved. Being an objective observer, the video camera records the events that occurred before it to the best of its ability, without favor or prejudice to the people depicted. It is for these reasons that video evidence often plays a key role in both criminal prosecutions and civil litigation. Interestingly, despite the value that video evidence brings, those in opposition to the tendering party often try to limit what use can be made of the video images. One such tactic is to object to the video evidence being played at any speed other than real-time. The purpose of this objection is to limit the evidential value of the video evidence. The goal is to deny valuable evidence being provided to the trier of fact under the claim of undue prejudice.
In a 2009 murder prosecution in Canada, R. v. Mohamed,2009 CarswellOnt 463 (Ontario Superior Court of Justice), the defense sought to place restrictions on how the prosecution could present video evidence in court. The Crown introduced video images from a four camera CCTV system. Additionally, the Crown sought to introduce a 597 slide PowerPoint presentation which when played continuously showed 10 frames per second (less than the real-time rate of 30 frames per second). Playing the video images in this way would more readily allow for frame by frame analysis. No images were altered in this process as the images were simply exported from the original video source. The defense challenged the PowerPoint presentation arguing that it was “a distortion of reality” and would be misleading for the jury.
On this point, the Court ruled as follows at page 5:
15 I have viewed both the real time videofootage from the Jupiter Sports Bar and the Power Point (slow-motion) version multiple times. The Power Point presentation is of invaluable assistance in determining who did what and when. Indeed, because of the fact that the action moves from screen to screen through three or four quadrants and because of the speed with which things happened, it is nearly impossible to tell what is actually happening when the videois watched in its original format. This is further hampered at times by the poor quality of the videoimage. I tried simply watching it as a series of still photos, but it is difficult to judge what actions are taking place when the images are viewed in this manner. I considered the Power Point slideshow to be an extremely useful tool for the jury for many of the factual determinations they were called upon to make in this trial, and in my view, it would have enhanced the ability of the jury to come to a correct verdict on the facts. I therefore found it to be admissible evidence for the jury to consider.
16 The principle concern of the defence is that the jury could be misled by the slow-motion aspect of the Power Point in making decisions about issues where the speed at which the events occurred is an important factor to take into account. Such issues include whether the participants feared being seriously injured or killed, if they did not take defensive action, whether those beliefs were reasonable in all of the circumstances, whether Mr. Mohamed had the requisite intent for second degree murder and issues of loss of self control relevant to provocation. On many of these issues, timing is crucial. The speed with which things occurred and the amount of time people had to react to the actions of others are relevant, often pivotal, to the determination of whether actions taken were appropriate and reasonable. However, modern juries are well used to slow-motion film footage and technologies such as Power Point slide presentations. With proper instructions alerting the jury as to the importance of the perspective of real time for some of the issues they have to determine, I had no concerns that the jury would be confused by the Power Point format. In my charge to the jury I provided a limiting instruction early in the charge as to the dangers inherent in the slow-motion format and reminded them at various specific parts of the charge when it was important to consider an issue based on the real-time videoas opposed to slow-motion. I am confident in the ability of the jury to make those distinctions.
Concordant with objections to individual image analysis is often a desire to limit the ability of the tendering party to point out anything of value in the images to the trier of fact. This claim has little merit, so long as the narration that is provided is objective and does not attempt to overreach what is shown in the images. On this point, the Court stated at pages 5-6:
17 It takes a number of times watching the videos,even in the slowed down format, to make any sense of how the action moves from quadrant to quadrant. Sometimes it is possible to see the same action in two different quadrants from different vantage points at the same time, which can also be quite disorienting at first. Identificationof the participants was not an issue at trial. However, it is still difficult at times to tell which persons are which, or to know what part of the screen you should be watching in order to follow the events at issue.
18 The Crown proposed introducing both formats of the videotapes through Detective Fowler, who is intimately familiar with the footage having watched it probably hundreds of times. I ruled that Detective Fowler would be permitted to testify as to how the videocameras were set up and how to watch the action through the four quadrants sequentially. Further, I permitted Detective Fowler to pause the videoat points and to direct the attention of the jury to particular individuals or areas where those aspects were of particular importance from the perspective of the Crown. On cross-examination, defence counsel had the same opportunity to have Detective Fowler point out relevant portions that were important from the perspective of the defence. On the voir dire, I had the benefit of watching the videoswithout explanation, and then having the Crown guide me through it. This guidance made an enormous difference to my ability to view the videoproperly, even after the fact when I was viewing it by myself on my own computer. In my opinion, it would have been of considerable assistance to the jury to have this sort of assistance when first watching the video.
19 Defence counsel conceded that in their final addresses to the jury all counsel could use the videosas an aid, that they could illustrate their points by slowing the footage and stopping and starting it, and that essentially they could do in their closings what the Crown did during her submissions to me on the voir dire.It seems to me that at the end of the trial, after all the evidence has been concluded, is not the point in time when the jurors should understand for the very first time what is going on in the video.Since it would not be appropriate for the Crown to provide any type of narration when the videois first being introduced and played for the jury, such assistance was appropriately provided through a knowledgeable police officer such as Detective Fowler.
20 I fully agree with the point made by defence counsel that Detective Fowler’s interpretation or opinions as to what is happening on the videoare not properly admissible before the jury. It is for the jury to decide what conclusions to reach as to the nature of the conduct of the various parties depicted in the video.Therefore, careful instructions were given to Detective Fowler as to the types of things he could and could not say, and he was very careful in his testimony not to deviate from that. Interestingly, after the evidence had been presented in this manner, neither counsel felt the need to actually use the video footage in the course of their closing addresses to the jury.
Video evidence is objective. Provided it has been properly authenticated, it can provide value to either party and more importantly to the trier of fact. Attempts to limit the full value of the evidence, while perhaps understandable in an adversarial system, are misguided. The goal should always be to ascertain the truth.
Even though the Supreme Court of Canada specifically approved of image by image analysis in R. v. Nikolovski(1996), 111 C.C.C. (3d) 403, we still see attempts, such as that in R. v. Mohamed, to deny the trier of fact the full value of the video evidence. Properly defended by the tendering party (usually the prosecution), such arguments should not find any measure of success.
Canada is not alone when it comes to opposing counsel trying to restrict the use to be made of video evidence being shown other than in real-time. In 2016, the Supreme Court of Pennsylvania, in Commonwealth of Pennsylvania v. Cash, 137 A.3d 1262, heard an appeal from a case wherein a murder was captured on video and at trial, the forensic video expert played the video first in real-time and second, following a title slide that said “SLOW MOTION”, the same video evidence at one-tenth of real-time. On appeal, the appellant argued that the trial judge erred in allowing the video evidence to be showed in slow-motion on the basis that it distorted the actual events and helped to promote a finding of malice and premeditation by the trier of fact, thus rendering the video evidence unduly prejudicial. The Commonwealth argued that the video was properly admitted as the slow-motion video provided valuable probative evidence that would assist the jury in understanding the events, the scene and in seeing the face of the shooter.
At page 1277, the Court ruled as follows:
We cannot conclude that the trial court abused its discretion by admitting the slow motion surveillance video footage in the instant case. While Appellant is correct that playing portions of the video in slow motion distorted the events shown therein, we have nevertheless permitted such manipulation where it “enhance[d] the jury’s understanding” and where the use of “slow motion … is more probative than prejudicial.” Id.As the Commonwealth has highlighted herein, playing portions of the video in slow motion enhanced the jury’s understanding of the events surrounding the murder by allowing it to have a better view of Appellant’s face, thereby establishing Appellant’s identity as the perpetrator, and by giving it the opportunity to observe that two shots had been fired from Appellant’s gun, a detail which was not readily ascertainable when the video was played at normal speed. Moreover, we find that the probative value of the slow motion footage outweighed any potential for prejudice, particularly given that: the jury was first shown the scenes at normal speed, which allowed it to see the true timing of the events as they transpired; the slow motion footage was clearly marked as such; and the trial court specifically instructed the jury regarding both the purposes for which it was to consider the video footage and the fact that it should not allow the video to inflame their passions against Appellant. Accordingly, the trial court properly exercised its discretion in allowing portions of the surveillance video to be played in slow motion, and Appellant is not entitled to a new trial on this basis.
Central to this ruling is the fact that the prosecution had legitimate, probative reasons for tendering the slow-motion video. Video evidence tendered for the sole purpose of inflaming the jury would be less likely to be received in that format.
All evidence is subject to an overriding assessment wherein the probative value of the evidence must override any potential prejudicial effect which may be occasioned. Therefore, when presenting video evidence, it is important that the video expert and the attorney presenting the evidence give due consideration to the purposes for which the evidence is being tendered. There must be legitimate forensic reasons for presenting video evidence in a format other than simply playing it. The responsibility for justifying the proposed method of presentation has two components. First, the expert must be able to articulate why that method is necessary for a proper analytical presentation for the trier of fact and second, the attorney must explain why the evidence is necessary to properly present the case. Providing these considerations are properly addressed, favorable rulings as noted above should be the norm.