First time viewers of video recordings will often gain an increased understanding of the events depicted at both a macro and micro level if their observations are supplemented with competent narration by a witness with knowledge of the video content. Previous articles on this site have featured cases wherein courts have approved of video narration evidence. This article goes one step further by examining an appellate decision wherein the Court spelled out specific guidance for acceptable narration parameters.

State v. Watson, 254 N.J. 558 (N.J., 2023), is a decision of the Supreme Court of New Jersey that examined the extent to which narration of video recordings by lay witnesses (primarily investigators) is permissible. Though referring to lay witness testimony, the guidance provided by the Court would similarly be relevant in the expert witness testimony realm. As the facts of Watson are not particularly relevant for this article, I will focus on the narration parameters issue.

The Court noted that narration can be helpful in drawing the jury’s attention to details that might otherwise be overlooked, especially with video recordings that are confusing, complex, or unclear. It is not realistic to expect jurors to comprehensively absorb intricate details of dynamic events since they are not trained to do so, nor have they developed the same familiarity with the recordings that a case witness will have achieved. Further, jurors may not know what to look for because they may not know what is important. The facts of each case will determine the extent to which video narration would be helpful to the jury.

The Court set forth the following guidance:

1. Running commentary by the witness throughout the video recording is not permitted. The observations of the witness should be responsive to the specific questions of counsel. Parenthetically, expert witnesses are typically given greater latitude in this regard since commentary on technical aspects of the content may take on greater importance.
2. Witnesses can describe what they observe in the recording but may not offer opinions about the content. For example, a witness may note that an individual opened a door with his elbow but not that he did so for the purpose of not leaving any fingerprints.
3. Witnesses should not offer opinions about content that is in dispute as that is the proper role of the jury to decide. Therefore, a witness should not articulate that the video shows a certain action or object when that fact is reasonably disputed by the other party. That said, I suggest that expert witnesses would be allowed to do this provided they can show what additional abilities they possess to discern content.
4. Witnesses should not comment on what is observed based on inferences or deductions they have drawn from other evidence. This type of commentary is properly the role of counsel in closing argument.
5. If there is a reasonable prospect that certain aspects of proposed video narration may be objected to by opposing counsel, these issues should be resolved by counsel when possible and otherwise a motion should be filed to address the issues. This will avoid missteps in front of the jury.

Playing a video recording in the courtroom without an accompanying explanatory narrative does a disservice to both the evidence and the jury. It also assumes a level of content comprehension by the jury that is likely absent. Narration is a valuable adjunct in the presentation of video evidence. Properly used, it serves to accentuate the jury’s understanding of the evidence and the points that each party wishes to draw from it. The more assistance counsel offers to the jury, the more informed the decision of the jury will be. Irrespective of any assistance provided by witnesses and counsel as to the content of video recordings and its significance, the final interpretation will be that of the trier of fact.