“We know that most people associate surveillance with this type of vehicle, and I was determined to find a way to develop a system that allowed our investigators to blend more seamlessly with their environment,” explained Zach Grove, company president.

After months of testing and re-tooling, Zach developed the Unmanned Video Surveillance Platform.  The system consists of a pan/tilt/zoom camera that is covertly concealed on the interior of a car without any tinted windows or other stereotypical “surveillance” fittings.  The camera is covertly connected to an interior digital video recorder (DVR), which saves all recorded material for later retrieval and editing.  The vehicle is parked in a location within eye-shot of the surveillance location and left alone, seemingly empty.  The investigators then position themselves in a second vehicle nearby to conduct trailing surveillance if or when it is necessary and view all the activity on a laptop via a secure internet connection.

“The beauty of this system is that my investigators can see what is going on in real-time and can control the camera’s movements with the click of a mouse.  We have eliminated the need to place an investigator in a sometimes compromising position without sacrificing any visibility.  It is more covert and much more effective,” stated Grove.

The Unmanned Video Surveillance Platform is utilized in nearly all of Armada Global’s investigations and is only inhibited by lack of vehicle parking or low/no wireless signal since the system operates via wireless technologies.  It has now been used and proven successful in thousands of hours of real surveillance cases.

There are, of course, obvious benefits to using this system like more covert surveillance and increased officer safety since personnel don’t need to be physically present to view and record activity.

“Safety is sometimes a huge concern to us, especially when we’re operating in urban areas known to have a high crime rate.  I feel better knowing that I’m not putting my people out where it would not be safe for them,” said Grove.  “We drop the Unmanned Video Surveillance Platform in place and then move to a location, possibly a public establishment on a busy street, where safety would not be as much of a concern.”

Another advantage to using the Unmanned Video Surveillance Platform is the potential to decrease budgetary requirements.  On cases where trailing surveillance is not needed or required, the system can be placed in position and then monitored and controlled from the home office.  This allows for fewer personnel to be out on the streets and has the potential to cut payroll significantly.  Increased investigator comfort is also another significant benefit, especially when dealing with temperature extremes.

“Anyone who has ever sat in the back of a vehicle to conduct surveillance knows that there is nothing worse than a hot, summer day,” explained Grove.  “Opening the vehicle’s windows or, worse yet, turning the vehicle on to run the AC, largely decreases the covertness of the operation.  The Unmanned Video Surveillance Platform can run effectively in very hot and cold temperatures, which allows the investigator to sit comfortably in air conditioning throughout the day.”

Armada Global’s management team has come to realize during the two-years that they have been utilizing the Unmanned Video Surveillance Platform that it would have a tremendous benefit to law enforcement, especially for narcotics investigations or pre-raid planning.  As such, they are now scheduling demonstrations and making the system available for purchase by law enforcement or licensed private investigators.  The Unmanned Video Surveillance Platform can be customized for specific needs or uses and comes with two pan/tilt/zoom cameras, DVR, battery power, connecting cables, a laptop, and all required software in a rugged Pelican Case for easy storage and deployment.  An Armada Global representative will also provide up to 20-hours of system set-up and training.

For additional information on Armada Global, Inc and their Unmanned Video Surveillance Platform or to schedule a demonstration, please call 1-412-253-2013 or email admin@armadaglobalinc.com.

Armada Global has also set up a closed group for PIs and LE on Facebook for those that want to view demo clips, evaluate the system, etc. You’ll need to send a join request after following this link http://www.facebook.com/groups/135852289865448/

They are only allowing licensed PIs and LE access, so if your FB account doesn’t note this association, please email us in advance with the name of your company or department - admin@armadaglobalinc.com

The rose, a beautiful flower used to express love, is also the symbol of secrecy.  In fact, in ancient Rome roses were hung from the ceiling of the great council chamber to pledge the assembly to secrecy. We also see the rose in early Christian symbolism.  The image of a rose was often carved on confessionals, indicating that the act of confession between the priest and confessed would remain a secret.

Fast forward to today and the word Sub Rosa is used to describe surveillance or the secret act of watching a person or group.  The use of Sub Rosa is one of the most powerful tools a claims professional has to document evidence.  What is more damaging than someone caught on film cutting and stacking wood when hours earlier he was barely able to hobble into a doctor’s office?  Film that catches a subject in unguarded moments will document the claimant’s true physical limitations and the confirmation of a fraud.

It is the claims professional’s responsibility, after much evaluation, to initiate the Sub Rosa investigation. However, some adjusters are very hesitant to request a surveillance especially if they have not had success in the past with obtaining film.  But if you have strong evidence that fraud is likely, then you should commit the resources to establish a defense.  Be sure to have a clear understanding of what you want to achieve as well as what is possible within the law.

Keep in mind a Sub Rosa investigation involves many moving parts and unless you work with someone who is well trained, knowledgeable, experienced and a trusted professional you could end up with unusable video and a blown opportunity.

I’ve outlined a few tips to help get your Sub Rosa investigation going in the right direction.  Preparation and knowledge is the key.  Of course, not every situation is covered here, but if you employ these five steps, you are more likely to have a successful outcome.

Document your suspicion of fraud

Once you have identified a possible fraud, document it in your file.  Recording your suspicions will help you to identify the fraud and work out a course of action.  Using surveillance arbitrarily is unlawful.  Only employ Sub Rosa when you have a reasonable suspicion of fraud.

Move on it quickly

A great way to botch an investigation is to wait too long to act.  Once a reasonable suspicion has been established, talk to your investigator as soon as possible and plan a course of action together.

When you hire any vendor on your file you are hiring their expertise.  You would not hesitate to question your attorney on a legal point or a doctor on a diagnosis, so don’t hesitate to ask the investigator what they think and make your decision based on their advice.

Provide up to date information

Our firm was asked to do surveillance on a man who was arriving at a downtown bus station.  We reviewed the physical description and injury information with the client; they even provided a picture. We established the surveillance but the man was not on the bus.  At least, the man in the picture did not arrive.

Actually, the man was on the bus but he didn’t fit the description and picture.  We found out later that the information was five years old.  The subject’s hair color was different and longer, he gained weight and had grown a beard. We did eventually re-establish the surveillance and obtained some good film, but valuable time and money were wasted.

Give your investigator accurate information.  Take the extra step to verify descriptions and ask your insured for up to date photos or films of the claimant.  The more information you provide, the better our chances to identify and film the right person.

Communicate with your investigator

Set aside time at the beginning of the assignment to talk with the investigator and go over the case information. Set up some ground rules about the amount of time authorized and how a request for additional time is handled.  Coming to an understanding now will eliminate problems down the road.

Keep in contact with the investigator and update them with any new information when you receive it.  Try to be available when they call or return calls quickly.

Authorize enough film to defend your case

Bottom line is that an investigator is aware of the amount of time you have authorized and they will try to allocate the time wisely, but there are periods when a subject will become active when the allocated time is almost out.

The investigator will usually call to request more time, but if you are not available they might continue or drop filming because there is no time left.  Don’t let an opportunity slip by and damage your investigation.  Allow some wiggle room for your investigator. Trust them to know what is needed to establish your case.

Let them know at the beginning of the investigation that they can go over the time requested (within reason and within certain situations)  but they must continue to try to contact you. Most of the time, investigators will continue to film because it is in the best interest of the case.

Don’t beat them up when they have gone over the time, especially if they have good film.

Authorizing or not authoring additional film can also be a trust issue, but if you don’t trust the investigator to give you an accurate assessment, then you have another problem which needs to be addressed directly.

Be aware that an investigator will request at least two more days of filming if he/she has clear evidence of fraud.  Allow the investigator to continue shooting for at least the next two days.

Bear in mind that one active day is not enough to prove fraud to a judge.  You must show that the activity was not an unusual “one time event.”  Another two days of activity will give you enough evidence to establish fraud.

Lastly, the length of the film should be enough to establish a true account of the claimant’s activities.  Filming twenty minutes of a three hour baseball game is not enough time to represent a true account.

If you have any questions about Sub Rosa, AOE/COE, Fraud or Investigation, email me. at david@2mypi.com   

David Dindak is the CEO of Coast to Coast Data Search, an investigation firm that has successfully serviced the insurance industry for the past 20 years.  He is a licensed PI and a continuing education trainer in Investigation and Fraud. The above article is from the 2008 Investigation & Fraud Training Series. 

This training series is a free and is provided to companies onsite.

For additional information on Coast to Coast Data Search and/or how to bring the 2008 Investigation and Fraud Training Classes to your company. Visit the website at: www.2mypi.com or call (800) 282-6278.

George Aguilar, TPLI, TCI of Aguilar & Associates, Edward Spicer of Ocean States Investigative Group, LLC, and former guest Robert Orozco of Advanced Professional Investigations, LLC join Paul for a robust surveillance roundtable. Hear about regional differences in investigative challenges, crossing state borders, cultural issues, prevailing ethnic groups, preparing for unforeseen events, affects of weather, best equipment, and critical tips for preparedness. Find out where most investigators fail in getting ready for surveillance investigator challenges, how to avoid the same mistakes, and top tips for achieving success with your business.

Alan Goodman of Lawyers Investigating Service joins Paul to talk about how report writing can make or break your investigative business. Learn the critical practices for gathering information in the field, formatting, phrasing, style, and the pitfalls to avoid for reports that will differentiate your business and please your clients. Alan also talks about how the industry looks for first quarter 2012, and the key upcoming private investigator events and the business benefits of networking.

Guests on the January 2012 podcast are:

• George Aguilar, TPLI, TCI, Aguilar & Associates: 721 E Esperanza Avenue, McAllen, Texas 78501-1439, T: 956-682-1050, george@aguilarinvestigations.com.
• Robert Orozco, Advanced Professional Investigations, LLC, Surveillance Specialists: P.O. Box 654, Castle Rock, CO 80104, T: 720-933-9301, api77@comcast.net, www.advancedprivateeye.com.
• Edward Spicer, Ocean States Investigative Group, LLC: 39 Dodge Street #236, Beverly, Massachusetts 01915, T: 978-473-4154, F: 978-236-7252, oceanstatesinv@gmail.com.
• Paul Jaeb, Heartland Investigative Group: 520 Nicollet Mall, Suite 520, Minneapolis, Minnesota 55402, T: 612-371-9255, pjaeb@heartlandinfo.com, www.heartlandinfo.com.
• Alan Goodman, Lawyers Investigating Service, Inc: P.O. Box 8479, Portland, Maine 04104, Maine:  207-775-5685, 800-244-5685, Nationwide: 888-244-5685, F: 207-893-1475 aegelis@aol.com, www.lawyersinvestigatingservice.com.

See The American Private Investigator resources for links to the organization websites mentioned in this podcast.

Due to the rapid advances in technology Congress has attempted to address conflicts between technological innovation and privacy interests. At the same time the courts have been asked to resolve similar issues, particularly to determine whether the Fourth Amendment’s protection against unreasonable searches and seizures precludes police agencies from placing a GPS tracking device on a person’s vehicle without a warrant. Pending before the U.S. Supreme Court is the matter of United States v. Jones, 131 S. Ct.3064 (2011).  It is our hope that the government wins.  If not, our position is greatly weakened in those states that presently allow GPS tracking use by private sector investigators conducting lawful investigations. A loss by the U.S. will adversely affect our lobbying efforts regarding laws proposed to limit GPS use. Coupled to this issue are concerns of cell phone location tracking.

In New York , the matter of Michael Cunningham v. New York State Department of Labor, New York Supreme Court, Appellate Division, Third Department No. 512036, in a 3-2 decision, the court ruled that the NYS Department of Labor was within its rights when it utilized GPS tracking to follow an employee during and after work hours and while on vacation with his family. It dismissed the claims of Michael Cunningham, a former Labor Department employee, that the use of a GPS tracking device constituted an illegal search and seizure. The state relied on GPS data to show that Cunningham had submitted false expense sheets and other travel records. The court ruled that because the device was only monitored by an investigator during work hours its use was constitutional.  “To establish a pattern of serious misconduct, it was necessary to obtain pertinent and credible information over a period of time.” In a dissenting opinion it was argued that while the use of a GPS device to track employees suspected of misconduct is reasonable during work hours, the scope of the use in Cunningham’s caseundefinedwas unconstitutional. “(The Labor Department’s) valid interest in (Cunningham’s) whereabouts extended only to the hours of his workday, yet the device placed on (his) personal vehicle collected data 24 hours a day, seven days a week.”

A bipartisan bill S. 1212 and H.R. 2168, the Geolocational Privacy and Surveillance Act, or GPS Bill, offered by Senator Ron Wyden [D-OR] and Representative Jason Chaffetz [R-UT-3], seeks to clarify and establish the standards government must meet to monitor an individual’s movements. It would effectively ban GPS use by private investigators without permission of the vehicle’s owner. The proposed legislation calls for a broad prohibition against the disclosure or use of geolocation information making it unlawful for any person to (A) intentionally intercept geolocation information pertaining to another person; (B) Intentionally disclose geolocation information pertaining to another person when it is known that information was obtained in violation of the act; (C) intentionally use any geolocation when it is known that information was obtained in violation of the act; or (D) intentionally disclose information that was lawfully obtained under the act, but not authorized to be released to third parties.

Under this GPS bill the government’s only means for acquiring geolocation information would be pursuant to a warrant under Rule 41 of the Federal Rules of Criminal Procedure or the Foreign Intelligence Surveillance Act (FISA) of 1978. The Stored Communication Act or Pen Register/Trap and Trace Act would no longer be the method whereby such information is required.

In an emergency or exigent circumstances the police or emergency responders are allowed to use geolocation information to a person requesting assistance, such as a 911 call or where police “believe that the life or safety of the person is threatened or to assist the person.” There are other permitted circumstances for such methods by the US Attorney General and states’ Attorneys General to intercept geolocation information without a warrant.  An exclusionary rule is also contained in the GPS bill that no evidence acquired in violation of the act may be received in evidence in any trial or judicial proceeding.  This contrasts between the ECPA which does not contain an exclusionary rule.

A coalition of industry representatives, including Apple, AT&T, and Google, has joined with the ACLU and the Constitution Project to form the “Digital Due Process Coalition to advocate amending various federal surveillance laws. Senate Judiciary Chairman Patrick J. Leahy [D-VT] introduced S. 1011, the Electronic Communications Privacy Act Amendments of 2011 which would not only amend the 25-year old ECPA but the Stored Communications Act as well.

Representative Edward J. Markey [D-MA-7] in a December 2, 2011 letter to the chairman of the Federal Trade Commission raised privacy issues and claims of potential violations of Section 5 FTC “unfair or deceptive acts or practices” concerning reported technology developed by Carrier IQ, a cell phone monitoring provider. An item published in “Wired” magazine was an impetus for Representative Markey’s writing to the FTC. The effects of the reported technology are apparently applicable to Android, BlackBerry and Nokia users. Representative Markey’s letter may be found at:

http://markey.house.gov/docs/2011_1201_letter_to_ftc.pdf

Wireless carriers will be claiming that the data of 150 million potential users presently does not violate their privacy and the carriers’ use of this software is only to diagnose smartphone and network issues. Senator Al Franken [D-MN] chairs the Senate Privacy Subcommittee and has also entered into the fray. Earlier in 2011, he held hearings on the S. 1223, the Location Privacy Protection Act of 2011. a bill he cosponsored with Senator Richard Blumenthal [D-CT].  There has been speculation that the FBI may be handling an investigation regarding Carrier IQ.

A class action lawsuit has also been filed in the USDC for the District of Delaware in Pacilli et al v. Carrier IQ, Inc. et al. The complaint may be found at:

http://www.siannistraite.com/sites/default/files/Carrier%20IQ%20Class%20Action%20Complaint%202%20DEC%202011FINAL.pdf

There are numerous other bills pending, as well as proposed FTC regulations, regarding Internet tracking and keystroke monitoring about which ISPLA has reported throughout 2011 to members via email listservs. As we enter the Second Session of the 112th Congress, we can expect more action from Representative Markey, who also co-chairs the bipartisan Congressional Privacy Caucus.  He has been outspoken on providing privacy protections of personal consumer information. He is a longtime advocate of “opt-in” remedies.  He has investigated the data privacy and security practices of Amazon, Apple, Facebook, and Google, and the four major wireless carriers as well as the Social Security Administration. He is our profession’s “Nemesis” with a history of refusing to negotiate with private investigators regarding our concerns. Expect to hear more from him in 2012!

The following link provides the December 1, 2011 Congressional Research Service report entitled Governmental Tracking of Cell Phones and Vehicles: The Confluence of Privacy, Technology, and the Law.

http://www.fas.org/sgp/crs/intel/R42109.pdf

The writer of  the CRS report in his conclusion states: “Congress, the courts, and the people will continue to grapple with ‘what limits there are upon [the] power of technology to shrink the realm of guaranteed privacy.’ …Several Members of Congress have introduced legislation to mend this perceived problem, and overhaul the current federal regime.”

We anticipate that in 2012 privacy legislation interest will remain strong with reports of security information breaches and Identity theft continuing to remain in the headlines. We expect that the Rupert Murdoch fiasco over tapping cell phone messages in the UK may become a larger problem for our profession here in the U.S. with DOJ investigators focusing on the possible the Foreign Corrupt Practices Act, violations of FCC licensing regulations possibly affecting Fox News, and Congressional hearings scheduled to be held.

Rest assured that ISPLA is well aware of these and other issues. We will continue to address them. We are grateful to the professional associations that have acknowledged our legislative efforts at the federal level these past three years. Recently allocated donations by ALDONYS of $2500 and an additional $2500 from its Security Guard Company Committee, $2000 from PALI, $1000 from NJLPIA and $500 from INTELLENET are truly appreciated.  It is through such support, and from our individual members, that we have financed our state and federal legislative tracking systems, maintained Federal Election Commission compliance of our political action committee, professionally executed the effective federal Washington lobbying campaign of our volunteers, and achieved continuing successful results.  Thank you!

Bruce Hulme, ISPLA Director of Government Affairs

To further help support our good work — please go to: www.ISPLA.org

Keep wool blankets handy and a couple of thermoses with something hot to drink close by.  Again, you will need a couple of empty containers; coffee and tea are diuretics.

Do not use open-fire type heaters, like kerosene burners, a car will catch fire very quickly and the combustion may create carbon monoxide, which will kill you and you won’t even feel it coming. Space heaters use a tremendous amount of power; if you are going to use them keep them attached to a different power supply than your vehicle’s ignition system.  A heated blanket is also a luxury item.  Also consider the chemical hot packs that they often sell with hunting supplies to keep your hands warm.

Windows may tend to fog up while you are inside of the vehicle on a cold day, apply anti-fog solutions to the inside of your windows to help keep this surveillance footage crippling problem to a minimum.  You can also run an electrical fan, directing the air to blow on the areas you need to clear.  Be aware that your surveillance camera lenses and viewfinders may fog up as well; do not use chemicals on your equipment, instead opt for the fan or car heater.

A car engine running on cold days is often more visible than it is audible, therefore more discernable at greater distances, because the engine exhaust is released and turns to steam.

Be aware that you will leave tracks in the snow if you get outside of your vehicle.

This article is purposefully short because we want to hear your BEST WINTER SURVEILLANCE TIPS! Tell us what works for you, the challenges you face and any warnings you might have for other investigators by leaving a comment below!

As an entirely standalone receiver, the IP receiver does not require a computer and eliminates the hassle of installing special software or programs.   It plugs directly into a wireless router and then transmits video wirelessly to the receiver, which also serves as a DVR.  In addition to recording video to an SD card, the IP receiver also streams video over the Internet.  This functionality gives the user complete remote control: including the ability to change the recording mode and to view past recordings and live video. The live feed is accessible from any computer, web browser, or Smartphone.   The IP Receiver also has email notifications that alert the user of power loss, IP address changes, and motion detection.  The motion detection email alert attaches an image so the user knows if there is an intruder in the house or if it’s just the family pet.

The IP receiver’s design makes it the most covert camera system on the market.  There are no markings or cables on the receiver and a locked metal plate protects the SD card from tampering.

Click here to choose from nine camera styles featuring IP receivers available at IRBstore.com.  Purchase any camera with an IP Receiver from IRBstore.com now through July 31st, 2011 and received $70 off!  Use coupon code IP70 at checkout to redeem!

Learn more about covert cameras by watching IRBstore’s online covert cameras and video webinar:

Covert Cameras Webinar 06.30.11 from IRBsearch on Vimeo.

“Technology is advancing rapidly in the digital video camera market and our clients expect crisp high definition video as opposed to the fuzzy standard definition video we are capturing on video cassettes right now. All of the new cameras coming into the market are using SD memory cards and internal hard drives.

My question is this, if I capture surveillance footage to an SD card and then download it later to a computer and that footage is then burned to a disc, is there any reason why the footage from the disc would be disallowed in court? Does the original SD card need to be preserved?”

The first five or six responders were very adamant about keeping the original SD (Secure Digital) cards and anything less they asserted was the spoliation of evidence. There were several comments about maintaining video evidence logs and a chain of custody receipt too. One investigator had the audacity to go against the popular consensus and took the position that a disc-copy made in the manner described would be perfectly admissible.

Here is a response from one listserve member that pretty much summed up what everyone else was saying:

“The golden rule of evidence is that you ALWAYS keep the original, no matter what, period! Additionally, of equal importance is the Chain of Custody. If you collect evidence that may end up in court, you must have established procedures regarding the collection and preservation of that evidence; when was it seized and by whom?”

Well, my opinion is that it’s not really all that simple or complicated (depending upon your point of view) and I thought it was time to throw my own reply into the conversation.

First thing’s first: The question is for those of us “in the now,” not where we’ve been.

What I mean is this – professional private sector investigation is ENTIRELY different than law enforcement-related investigation, where the goal is to win a criminal conviction and put the bad guy in jail. When it comes to a question about evidence some ex-law enforcement guys are really quick to cite their relevant, past, experience and then, almost without fail, they use the terms “Best Evidence Rule” and “Chain of Custody,” which they are taught in their respective academies. Rightly so, putting criminals in jail requires an extraordinary level of care and attention to detail when working with evidence headed for the criminal justice system.  However, if you are a private investigator now, then you are working on behalf of a client on a civil matter (criminal defense investigators excluded) and the standard of care is altogether different.

I believe that to better answer the original question we have to first establish the circumstances in which the surveillance documentation is obtained and identify the purpose it will ultimately serve.

I start with the assertion that most of us here are private investigators now. For the general purposes of this discussion very few of us are in the business of obtaining evidence that will be directly used to build a criminal case against a “suspect” that will then be turned over to a prosecuting attorney who will use that evidence in a criminal trial replete with all of its nuances, like chain of custody issues, testing and validation or “fruit of the poisonous tree.”

No, instead we are using surveillance video to document a person, place or thing so that our client can evaluate that documentation in the context of whatever questions he or she has- be that watching his or her spouse with another love interest, evaluating a claimant’s actual daily activities and physical appearance against a stated claim, documenting an employee’s behavior while on the job, etc. etc.

So I am going to limit my comments to those few areas where video-based evidence is used most often in civil law courts where we attempt to right a wrong, honor an agreement, or settle a dispute:

• claims-related and AOE/COE assignments,
• documenting the location where an accident or crime may have occurred,
• questions of infidelity,
• child care & custody issues,
• potential incidents of employee theft and
• some intellectual property disputes.

While I can agree with many of my colleagues that “Best Evidence” would be the original SD card, I would also submit that we have to consider video and it’s practical application in real-world scenarios rather than what “the book,” and all those who subscribe to it out of necessity, might have to say.

“Best Evidence” rarely comes up, if ever, when applied to the source of video documentation in common private investigation assignments. Even if it did, one would only need to look as far as the Federal Rules of Evidence, Article X, Rule 1001 for clarification on the terms, “Original” and “Duplicate” as it might apply to the “Best Evidence Rule” in reference to digital video evidence:

ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS
Rule 1001. Definitions

For purposes of this article the following definitions are applicable:

1. Writings and recordings. “Writings” and “recordings” consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.
2. Photographs. “Photographs” include still photographs, X-ray films, video tapes, and motion pictures.
3. Original. An “original” of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An “original” of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an “original”.
4. Duplicate. A “duplicate” is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original.

In preparing this article I scoured Lexis-Nexis countless hours looking for a citation from case law where digital video documentation was disallowed in a civil trial because the source media was not produced; I could find nothing at all. In the absence of having case law or precedent from which to learn, I like to throw out the theory and rely instead upon empirical evidence:

I have only been at the surveillance game now for about 15 years, not as long as some of you I know, but claims-related surveillance is the mainstay of my agency. We do not handle digital forensics, criminal defense, personal injury cases, etc. In 2009, I upgraded all of our video cameras to high definition digital video cameras with on-camera memory and an SD slot for extra storage, meaning that we no longer use tapes and have not since February of 2009.

Since converting to all digital video cameras, our usual work-flow after the surveillance day is over is to download all (100% – warts and all) of the video documentation obtained from the camera to a computer. That file is then burned to two DVDs. The video is unedited and all of the metadata is preserved for later scrutiny if warranted. Those DVDs are clearly marked as “unedited;” one copy always goes to the client and we keep the other.

The video documentation on the computer is then edited to the client’s specifications; we throw in some titles and essentially create a “highlight reel” so that the client can quickly evaluate what he or she has and how it affects his or her case, claim, job, life, marital status… whatever. Most of our claims-related and county/municipal clients now request that we upload the unedited video so that they can watch it online and distribute it accordingly. The unedited-uploaded video is usually what the opposing party gets in discovery.

With all of that having been said, here’s the substance of where I am going:

Since making the transition to digital video cameras my investigators and I have completed several hundred days of claims-related surveillance assignments, have been to deposition a few dozen times and testified in trial on numerous occasions. Because many of our cases are related to offshore injuries (Jones Act) we testify regularly in Federal courts. Of course, we do a couple dozen infidelity or child custody cases and the odd employee theft assignment here and there every year as well.

In that same time period do you know how many times we have been asked why we did not, or could not, produce the original source’s SD card, videotape or other first-generation media storage (like the camera’s on-board flash chipset)?

Zero, not once.

When we converted to digital I probably built up an inventory of SD cards worth over $750 so that we could keep the original video file.  It eventually became apparent to me that no one cared about the source media, so I started asking questions why. Universally, the attorneys and claims adjusters could really care less as long as we gave them the raw and unedited video, or at least kept it somewhere safe until the claim had been settled or litigated. The name of the game is efficiency and expediency- from the adjusters, to the attorneys to the court room. From the time a matter is brought up until it is settled or litigated there is really only one question on their minds:

What does the video depict and what does it mean?

But Scott, your copy of the video evidence may not be forensically sound and would lose all probative value!!!

“Forensically sound” is a wonderful concept when you are trying to get digital evidence disallowed in a criminal defense investigation because it casts doubt upon the competency of the person collecting the evidence and/or the methods used to collect and preserve the evidence. The reality of video in a civil trial, however, is vastly different. You cannot cast doubt on the competency or methods of the guy who turned his video camera on, pointed at something, recorded some video and then made that video available for your viewing pleasure. It’s been tried and beaten many, many times when (analog) video surveillance footage found its way into the courtroom.

The probative value (“Is something sufficiently useful enough to prove or disprove something important?”) of video documentation really boils down to the threshold of “it is what it is.”

Video-based evidence, for the run-of-the-mill private investigator and our client’s needs, stands on its own merits in all but the rarest of occasions if it meets a few criteria:

• Was the video documentation obtained lawfully?
• Can the trier of fact view the video and positively identify the subject?
• Is the video’s quality clear and stable enough so that the trier of fact can evaluate the subject’s activities or condition in context of the matter at hand?
• If these criteria are met, what does that video prove or disprove (if anything)?

In claims-related assignments the claimants/plaintiffs always want the unedited copy. We are almost always asked under oath if the unedited video documentation is complete and represents everything we obtained during the course of our investigation. We say yes, and that’s that. They move on.

No one is out there manipulating video in order to make it magically appear that a disabled claimant is clearly not walking with his “much needed” cane or working a roofing job though he adamantly denies being able to work. When was the last time you heard of a PI using CG wizardry to make it appear that some guy’s wife is doing the horizontal boogie with the pool boy so he or she can say they hit a home run for the client?

Zero times.

It doesn’t happen. You all know it and the attorneys all know it. The idea of contrived video footage is old and thread-worn.

What DOES happen occasionally is that some investigators may not provide the complete and unedited version of the video obtained while on assignment because they caught some seemingly inconsequential footage that was obtained by an inadvertent press of a button, is out of focus, terribly shaky or the horizon was 45 degrees from level for a few moments. Ethically and professionally that is wrong by any standard. It becomes an entirely different matter when the investigator swears under oath that the documentation provided was obtained by him or her and represents all of the video documentation obtained during the course and scope of his or her investigation.

I’ll make this last point:

In the 15 years and hundreds of depositions and trials in which I have provided testimony, I have also never been asked for a chain of custody log for my videotapes or discs.

Again, that’s ZERO times.

(Sure, I kept one for several years back in the mid-90′s but I was a bit wet behind the ears back then.)

We do however, keep an inventory sheet of all of the videos we do have so that we can periodically verify that we haven’t lost anything…  That’s just good business.

Register for the Covert Camera Webinar by Clicking Here!

IRBstore carries a diverse range of DVRs, from lower cost, DIY models to high definition, professional grade DVRs.  Once the initial investment has been made for one of these DVRs, they can be paired with any of our body-worn cameras.  Body-worn camera systems are advantageous when it’s imperative to see details, catch certain angles that a stationary camera cannot, or in situations where it is impossible to plant a camera, as is the case with much undercover work.  Going back to the opening scenario, let’s say that you’re being asked to do office surveillance.  In this case, a button-style camera would likely be the ideal choice in order for you to get the picture you need, and it’s a great investment because it has the functionality to serve many purposes for future cases.  However, another assignment may call for surveillance that requires you to be able to get video inside tight spaces such as between walls or inside a car.  An inspection-style camera would be the best fit for this type of project.  Since you already have the DVR, you would only need to purchase the new camera.  Alternatively, if you specialize in one type of investigations and only need one camera model, a camera with a built-in DVR might be the best way to go.

IRBstore offers webinars each month on products that professional investigators have specifically asked us to carry.

Following this month’s Body-Worn Cameras webinar, we will be giving a presentation in April that will cover products in the Computer and Cell Phone Monitoring category.  May’s webinar will be on our most popular product category, GPS Trackers.  Sign up for any or all of our upcoming webinars by following the registration links below!

Body-Worn Cameras

March 24th at 4pm EDT
http://goo.gl/NBsFL

Computer & Cell Phone Monitoring – Learn about the technology available for monitoring computers and cell phones.

April 28th at 4pm EDT
http://goo.gl/Q6OnG

GPS Trackers – We’ll cover the different types of GPS Trackers that IRBstore has to offer and the benefits they provide.

May 26th at 4pm EDT
http://goo.gl/0mvU9

All IRBstore webinars are free of charge and for participating we’ll give you a special promotion at the end of each one to be used at http://IRBstore.com.