Recently, a private investigator posted the following in an association’s listserve to which I belong and it raised some seriously interesting responses:
“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:
- 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.
- Photographs. “Photographs” include still photographs, X-ray films, video tapes, and motion pictures.
- 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”.
- 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.