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Cell Phone Videos are Ubiquitous, But Are They Admissible?

May 17, 2021, 8:00 AM

If the past year has taught us anything, it’s that when something historic happens, it will be captured on camera. Whether on a cell phone, a GoPro, or a webcam, someone—someway—will record it and post it online. Just in the past year, we’ve witnessed historic instances of police brutality and most recently saw in the Derek Chauvin trial how a video can impact the outcome of a jury trial.

As trial lawyers, the question for us becomes, how do we use these videos at trial? How do we authenticate them and get them admitted as evidence? And what happens if a video was surreptitiously recorded?

Social Media Videos

If a defendant or a witness in a case posts a damning video on social media—for example, on Instagram, Facebook, Twitter, TikTok, or Snapchat—how do we turn that content into smoking-gun evidence at trial? Luckily, the Florida Fourth District Court of Appeal (Fourth DCA) told us exactly how to do so in Lamb v. State.

In Lamb, a criminal defendant recorded a video of himself flaunting a stolen car, jewelry, and cash on his Facebook account. The prosecution, as expected, played the video for the jury and made it their centerpiece evidence at trial. The Florida appeals court held that the prosecution properly authenticated the video and that it was properly admitted into evidence.

The prosecution authenticated and admitted the video through the police department’s digital forensic investigator. The investigator explained exactly how he obtained the video from Facebook—accessing the defendant’s Facebook page, identifying videos uploaded to the defendant’s Facebook “wall” around the time the carjacking occurred, and finding a video the defendant posted of himself inside the stolen car.

The investigator described how he downloaded the video and then confirmed that it was identical to the video on the defendant’s Facebook page. The investigator also took screenshots of the video on the defendant’s Facebook wall to show the jury how it appeared at the time. This, according to the Fourth DCA was enough to authenticate the video for use at trial.

In issuing the Lamb ruling, the Fourth DCA expressly adopted the standard of the Eleventh Circuit Court of Appeals for the admission of social media videos. That is, so long as there is “sufficient evidence that the video depicts what the [party] claims,” it is admissible.

Following the court’s guidance in Lamb, when introducing damning social media video into evidence, a litigant must hire a qualified digital forensic expert, have that expert download and preserve the video, and take screenshots to document how the video appeared on social media for use at trial.

Finally, when in trial, the expert should be prepared to describe each step they took in finding, downloading, preserving, and authenticating the video.

Surreptitiously Recorded Videos

Sometimes, a party’s case may hinge on video that was surreptitiously recorded by a defendant or witness. The video in question may be crushing evidence that would be invaluable at trial, but the recording may be inadmissible and, in fact, the source who captured the video may have committed a crime. This is because in many states, a party must consent to being recorded.

However, there are two significant loopholes to use to get the recording admitted as evidence.

The first is the fact that in Florida, the wiretapping law only applies to recordings made in a time, place, and manner where the other party has a reasonable expectation of privacy (Smiley v. State). For example, if the video source was holding their cell phone in hand where the other party could see it or, even better, if the other party acknowledges that they are being recorded, that may eliminate their reasonable expectation of privacy.

A second (less apparent) path around the wiretapping statute derives from the law’s technological antiquity. The wiretapping statute was first enacted in 1969, long before cell phones were even invented, let alone before the invention of the smart phone and cellphone cameras becoming socially ubiquitous. As such, the wiretapping statute does not mention video recordings at all; it only references audio recordings.

Florida’s First District Court of Appeal acknowledged this shortcoming in the law in a recent concurring opinion, K.J. v. Dep’t of Children and Families, where the department used a video recording of a mother hitting her children as evidence of abuse. The video was recorded by the children’s father in her home, albeit without the mother’s consent. The woman objected to the video being introduced at trial, citing Florida’s wiretapping statute, a lack of consent, and a reasonable expectation of privacy. The trial court admitted the video over objection and, of course, the parties argued about the admissibility of the video on appeal.

In K.J., Judge Ross L. Bilbrey wrote a thoughtful concurring opinion where he addressed the law’s shortcomings: “Such recordings generally contain a visual as well as audio portion, but by its explicit terms, section 934.06 applies only to an oral communication (i.e., something ‘uttered’) or a wire transmission (i.e., ‘aural transfer’).”

This offers litigants another potential opportunity to get video evidence admitted: by excluding the audio portion of a recording and seeking to only admit the visual recording. Although the appellate courts will inevitably have to face this increasingly common legal issue head on, the door remains cracked open for now.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Stuart Ratzan is founder of Miami-based trial law firm Ratzan Weissman & Boldt where he handles catastrophic injury and medical malpractice cases.

Kimberly Boldt is a partner at Ratzan Weissman & Boldt and specializes in complex civil litigation and appeals at the state and federal levels.

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