David & English: Is police body cam video admissible in transportation litigation?

David

By Lynsey F. David and Katherine L. English

Police body-worn camera footage is becoming more prevalent in transportation personal injury lawsuits. These cameras (frequently referred to as “body cams”) often act as the unbiased witness to the moments after an accident. Body camera footage taken at an accident scene might bolster or weaken your case by containing the parties’ initial unguarded statements. These videos may also offer visual context such as slurred speech or stumbling if a driver is impaired, or show the severity of the parties’ injuries after the accident.

To utilize the footage from these cameras — or attempt to keep them away from a jury’s view — attorneys must understand the issues surrounding their admissibility. The rules governing these videos’ admissibility are similar to any other photographic or video exhibit. However, there are some unique considerations. For example, unlike a surveillance camera, body camera footage likely will not depict the actual motor vehicle accident; rather, it will show the aftermath. Consequently, it is important to recognize the arguments to make to the court to admit or exclude the video depending on your client’s best interest. Attorneys must be prepared to address issues of authentication, relevancy, hearsay and the video’s probative value versus prejudicial effect.

Authentication

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The first evidentiary hurdle is authenticating the video. Indiana Rule of Evidence 901(a)’s requirement is to “produce evidence sufficient to support a finding that the item is what the proponent claims it is.” This is typically a low bar because the police officer wearing the camera or another witness can likely testify to the video’s content. The parties might agree to stipulate to authentication because this does not waive other evidentiary arguments concerning the video’s admissibility.

If the parties do not stipulate to the video’s authenticity, the officer or an eyewitness with knowledge can testify that the video is a fair and accurate representation of what occurred. However, an issue with personal knowledge may arise if the witness testifying about the video’s authenticity did not witness all the events captured on the video, or if the witness suffered injuries in the crash that may impair his or her ability to remember everything in the video.

If there are no eyewitnesses, the “silent witness theory” can also apply. This theory permits the admission of photographs and videos as substantive evidence, rather than merely as demonstrative evidence. Wise v. State, 26 N.E.3d 137 (Ind. Ct. App. 2015). This theory requires a strong showing of authenticity and competency. Additionally, when automatic cameras are involved, there should be evidence as to: (i) how and when the camera was loaded, (ii) how frequently the camera was activated, (iii) when the photographs/videos were taken, and (iv) the processing and changing of custody of the film after its removal from the camera. These requirements would still require a witness with knowledge of the officer’s camera system but could likely be accomplished with an affidavit rather than a live witness. When this standard is applied, the video must “speak for itself” since the “silent witness” cannot be cross-examined.

Relevancy and probative value

Attorneys must be ready to address Indiana Rule of Evidence 401’s relevancy requirements by considering: “What fact does this video make more or less probable? Why is that fact important?” Because Rule 401 has a low threshold, the video will likely be found to be relevant. The next step is analyzing whether the footage is more probative or prejudicial. Under Indiana Evidence Rule 403, even evidence that is relevant can be excluded if it is more prejudicial than probative. Attorneys should be ready to answer, or ask opposing counsel: “What is the value in allowing the jury to see this footage? Is that value outweighed by the prejudicial effect to a party?”

Hearsay

At an accident scene, part of a police officer’s job is to investigate the cause of the accident by speaking to witnesses and involved parties. These interactions are often captured on a body-worn camera and present potential hearsay issues. Out-of-court statements offered for the truth of the matter asserted are hearsay. When the declarant is subject to cross-examination, an opposing party’s statement and certain prior witness statements are not considered hearsay. If the statement constitutes hearsay, attorneys seeking to prove the video’s admissibility must establish that the statement falls under a hearsay exception. There are several Indiana Rule of Evidence 803 and 804 exceptions, but the following are likely to be relevant for statements made at an accident scene:

Excited utterance is defined as a statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. A witness will usually be required to describe the declarant’s appearance and the circumstances. Statements made more than 30 minutes after an event are rarely admitted. See, e.g., Hardiman v. State, 726 N.E.2d 1201, 1204 (Ind. 2000); Jenkins v. State, 725 N.E.2d 66, 68–69 (Ind. 2000). Example: Moments after witnessing a fatal accident, a crying witness says, voice shaking, “That guy in the white car was texting while driving, and that’s when he hit the black car!”

Then-existing mental, emotional or physical condition is a statement of the declarant’s then-existing state of mind (motive, design, intent or plan) or emotional, sensory or physical condition (mental feeling, pain or bodily health). The statement must describe a person’s own condition while the declarant is experiencing it. For example, if a passenger-wife says, “My husband is bleeding out,” the exception would not be met because the statement is not about the declarant’s own condition, but rather, someone else’s.

Present sense impression is a statement that describes or explains an event/condition and is made while or immediately after the declarant perceives the event or condition. Timing and immediacy are key for this exception to apply. Because officers typically respond after an accident occurs, such post-accident statements captured will likely not meet the immediacy requirement for this exception. See, Davis v. Garrett, 887 N.E.2d 942, 946–947 (holding that a witness statement to an officer that was not describing the event as it occurred was not a present sense impression). This is important to note if your goal is to exclude such statements.

Statement under the belief of imminent death is a statement, made while believing the declarant’s death to be imminent, about the death’s cause or circumstances. The declarant need not actually die, but the declarant must be unavailable to testify for this exception to apply. Example: “I’m going to die because that guy ran a red light and hit me!”

Additionally, watch for hearsay within hearsay. Example: Witness says, “My passenger said that woman ran a red light.” When this occurs, exceptions for both layers of hearsay must be offered.

Conclusion

When body camera video is involved, there are several evidentiary considerations. These will likely be handled through motions in limine. Attorneys can also suggest limiting means to get favorable information from the cameras admitted into evidence, such as playing the video without audio, playing the audio without video or offering a transcript. The admission or exclusion of the video can be an appealable issue, so regardless of what outcome you advocate, be sure to make a clear record.

The increasing frequency of body camera video after an accident warrants early and continuing strategic planning on the part of all parties to determine its potential admissibility, especially when such video can be so instrumental in providing evidence concerning both liability and damages.•

• Lynsey F. David and Katherine L. English are associates at Lewis Wagner LLP. Opinions expressed are those of the authors.