In People In Interest of M.V., 432 P.3d 628, 2018 WL 5988705, the Colorado Court of Appeals was asked to review the decision of a trial judge ordering that a mother’s children be adjudicated as dependent and neglected, thereafter imposing a treatment plan for the mother and removing the children from her custody. Central to this case was the use of anonymously submitted video evidence at trial.
The El Paso County Department of Human Services initiated a dependency and neglect case regarding several children belonging to the mother. Before the jury trial, the mother filed a motion in limine to exclude several video recordings, some that purported to show the mother using, manufacturing, or distributing drugs in her home and one that showed the children in the same area at a different time. She argued that the video recordings were not original, they appeared to have been altered as the date and time stamps did not accurately reflect the length of the recordings, and there were “obvious scene jumps or skips”. She further argued that the recordings had been anonymously provided and could not be authenticated. The objection was renewed at the start of the trial and the trial judge ultimately ruled them admissible.
The Evidence
Evidence led at trial revealed that the Department received video recordings of the mother and the children on two occasions. First, an intake caseworker received an interoffice envelope that contained a DVD with four video clips. The caseworker did not know who left the DVD for him, nor its original source. Second, an uncle of MV testified that he received three video files from an anonymous sender via email. He forwarded that email and the recordings to a different intake caseworker, who in turn downloaded the video recordings onto a DVD and deleted the email.
Several witnesses testified that they recognized the mother and children and some furniture in the recordings. Based on this evidence, the trial judge admitted six of the video recordings. A police officer subsequently testified as an expert that the recordings appeared to show methamphetamine use and the selling of a substance that appeared to be methamphetamine.
What was missing in the evidence was any testimony of a witness who could independently verify the accuracy of the scenes depicted in the video. In fact, the uncle testified that he had never witnessed the mother using or selling drugs. “In short, the record does not establish that the police officer, the caseworkers, or the paternal uncle [were] present when the scenes depicted in the video recordings occurred. Thus, they could not vouch for the accuracy of the recorded scene.” The Court further noted:
62 Nor could any witness verify the reliability of the recording process. Indeed, the paternal uncle acknowledged that he had no idea how or when the video recordings were made. Likewise, the second intake caseworker acknowledged that she could not verify the accuracy of the time stamp seen in some of the recordings; when the recordings were created; or whether any of the recordings were altered, modified, or edited. The caseworker further agreed that the video recordings “bounce[d]” and persons in the recordings would suddenly jump from one position to another.
The Law
Video recordings constitute admissible evidence to illustrate or explain something that an eyewitness could describe in words, providing the video is authenticated. The authentication burden is not high and requires only a prima facie showing. As per Colorado Rule of Evidence 901 and applicable case law, authentication is satisfied by evidence sufficient to support a finding that the evidence in question is what its proponent claims. As the Court stated:
51 To authenticate a video recording, the proponent needs to establish that the recording is an accurate reproduction of a scene with which the witness is familiar. Armijo, 179 P.3dat 136-38; see also Baca, 29. But, if no witness with independent knowledge of the content of the recording can verify the accuracy of the scene, the proponent may instead present a witness who can verify the reliability of the recording process, including the reliability of the recording system and the absence of any tampering with the recording. See Baca, 30 (applying the same principle to a recorded telephone call).
The Ruling
The Court of Appeals ruled that since the Department was unable to establish the accuracy of the scenes depicted in the video recordings or the accuracy of the recording process, the trial court erred in admitting the video evidence. The Court then had to determine if the error was harmless, meaning that the jury would have reached the same verdict despite the erroneous ruling. In this regard, the Court held that the erroneous admission of the video recordings substantially influenced the jury’s verdict given the emphasis placed on them by counsel at trial, the lack of cumulative or corroborative evidence and evidence that in fact contradicted recent drug usage by the mother. Accordingly, the trial court’s order was reversed and a new trial was ordered.
Analysis
Video evidence can be a powerful tool in the presentation of a case at trial. In People In Interest of M.V., the video evidence was pivotal in the jury’s determination of child neglect. While it is true that only a prima facie showing of authentication is necessary to place the evidence before the jury, that evidential burden still requires sufficient cogency to meet that standard. Admitting highly questionable and prejudicial video on the barest of proof allows counsel and the jury to use evidence in such a way as to render a trial potentially unfair. While a defendant is not entitled to a perfect trial, he/she is at least entitled to a fair trial. Whether a defendant faces years in prison, the death penalty or the loss of his/her children, counsel should not place before the court video evidence so wanting of authentication, and hope that the court will admit it so that it can be used to prejudice the defendant. All video evidence should be thoroughly scrutinized prior to trial and if there is insufficient evidence of authenticity, then the evidence must be cast aside. Hoping a judge will let it in anyway risks a perversion of justice, either by securing a wrongful or questionable conviction or a conviction that cannot withstand appellate review. Extraordinary evidence such as anonymously submitted video recordings requires extraordinary proof.