VIDEOTAPES AND FILMS
1. Admissibility of Videotapes and Films
§ 1(a). Generally.
§ 1(b). Authentication.
§ 1(c). Best Evidence Rule.
§ 1(e). Unfair Prejudice.
2. Identification Through Videotapes
See also: AERIAL PHOTOGRAPHS; DEMONSTRATIONS AND EXPERIMENTS; IDENTIFICATION–Out of Court Identifications
OBSCENE MATERIALS ; REENACTMENTS; SCIENTIFIC EVIDENCE; TAPE RECORDINGS
1. Admissibility of Videotapes and Films
§ 1(a). Generally.
Videotapes and films are used with increasing frequency at trial in order to illustrate testimony, or as independent evidence.{footnote}Exchange National Bank v. Air Illinois, 167 Ill. App. 3d 1081, 522 N.E.2d 146 (1st Dist. 1988)(videotape of testatrix); 60 ALR3d 333 (videotapes in criminal trials).
But see 62 ALR2d 686 (cases holding reversible error to admit motion pictures).
Check 41 ALR4th 812; 41 ALR4th 877.{/footnote} Whether to admit film or videotape evidence is left to the sound discretion of the trial court.{footnote}Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261 (7th Cir. 1988).
Couch v. City of D’Iberville, 656 So.2d 146,153 (Miss. 1995){/footnote}
§ 1(b). Failure to List as Exhibit
Where films are simply used to illustrate testimony they are not formal exhibits, and the opposing party may not always be able to claim unfair surprise due to other side’s failure to list them as such before trial.{footnote} [4259]Szeliga v. General Motors Corporation, 728 F.2d 566 (1st Cir. 1984).{/footnote} On the other hand, a film discovered to exist during trial has been held properly excluded due to the prejudice caused the adverse party.{footnote} [4260]Saturn Mfg. Co. v. Williams Patent Crusher & Pulverizing Co., 713 F.2d 1347 (8th Cir. 1983).{/footnote} See SURPRISE.
§ 1(c). Authentication{footnote}9 ALR2d 899, 921.{/footnote}
To be admissible, videotapes and motion pictures must be properly authenticated.{footnote} [4262]Saturn Mfg., Inc. v. Williams Patent Crusher & Pulverizer Co., 713 F.2d 1347 (8th Cir. 1983).
But see Louis Vuitton S.A. v. Spencer Handbags Corp., 765 F.2d 966 (2d Cir. 1985)(no chain of custody required for admission of videotape). {/footnote}
§ 1(c). Best Evidence Rule{footnote}72 ALR2d 686, 688.{/footnote}
The best evidence rule, which provides that the content of a writing must be proven through the original unless it is unavailable, has been extended to films.{footnote}FRE 1002, 1004.{/footnote} Note, however, that since films are generally used merely to illustrate a witness’ testimony rather than to "prove the content," the best evidence rule is rarely called into play. An original will be required only where the photograph is offered as having independent probative value.
§ 1(d). Effect of Editting
The fact that a film or videotape was editted does not create a basis for excluding it unless the discontinuity destroys the item’s probative value.{footnote} [4265] Grimes v. Employers Mut. Liability Ins. Co., 73 F.R.D. 607 (D. Alaska 1977)(editted film of personal injury plaintiff demonstrating impaired use of hands held admissible).{/footnote}
§ 1(e). Necessity of Admitting Accompanying Reports
The Eighth Circuit has upheld a judge’s ruling that a manufacturer’s film could not be admitted without also admitting into evidence an accompanying report by the filmmakers.{footnote}Brewer v. Jeep Corp., 724 F.2d 653 (8th Cir. 1983)[S&R] {/footnote} See INCOMPLETE EVIDENCE.
§ 1(f). As Hearsay
Videotapes or films containing statements offered for their truth are hearsay.{footnote}Sprynczynatyk v. General Motors Corp., 771 F.2d 1112 (8th Cir. 1985), cert. denied, 475 U.S. 1046, 106 S.Ct. 1263, 89 L.Ed.2d 572 (videotape of hynosis session).{/footnote} Admissible as business record.{footnote}Department Of Pub. Safety & Correctional Servs. v. Cole, 672 A.2d 1115, 1123 (Md. 1996) (prison videotape).{/footnote}
Although such films have been admitted under the residual hearsay exception,{footnote}Grimes v. Employers Mut. Liability Ins. Co., 73 F.R.D. 607 (D. Alaska 1977)(film of personal injury plaintiff demonstrating impaired use of hands held admissible under FRE 803(24)).{/footnote} the difficulty will often lie in showing that the film is the most probative evidence on the issue in question. Thus, documentary films offered simply for their convenience or their impressiveness may be vulnerable to objection.
Fims or videotapes depicting non-assertive conduct are not considered hearsay.{footnote}CHECK Lehmuth v. Long Beach Unified School Dist., 53 Cal.2d 544, 2 Cal.Rptr. 279, 348 P.2d 887 (1960)(film of unconscious plaintiff used to show pain and suffering).{/footnote}
§ 1(g). Unfair Prejudice.
Videotapes and films, or portions thereof, will be excluded where their prejudicial effect outweighs their probative value.{footnote} [4271]Swajian v. General Motors Corp., 916 F.2d 31 (1st Cir. 1990); Saturn Mfg. Co. v. Williams Patent Crusher & Pulverizing Co., 713 F.2d 1347 (8th Cir. 1983) (film discovered to exist during trial held properly excluded due to the prejudice caused the adverse party by surprise); Marsee v. U.S. Tobacco Co., 866 F.2d 319 (10th Cir. 1989)(videotaped deposition of disfigured patient describing painful treatments required); Grimes v. Employers Mut. Liability Ins. Co., 73 F.R.D. 607, 610 (D. Alaska 1977)(film of personal injury plaintiff demonstrating impaired use of hands ordered redacted){/footnote} Objections of prejudice are frequently unsuccessful, however.{footnote}See, e.g., Kealohapauole v. Shimoda, 800 F.2d 1463 (9th Cir. 1986)(videotaped autopsy shown in black and white); Montag by Montag v. Honda Motor Co., Ltd., 75 F.3d 1414 (10th Cir. 1996)(videotape depicting collision between train and automobile);
Couch v. City of D’Iberville, 656 So.2d 146,153 (Miss. 1995) (cautioning trial court against exclusion of entire videotape where prejudicial portions can be removed); Traver v. Packaging Indus. Group (N.J. Super) 1990 WL 119588 (surgical reattachment of worker’s severed hand). {/footnote} See also PHOTOGRAPHS; PREJUDICE.
§ 1(h). As Cumulative
A film or videotape may be excluded if it is cumulative of other evidence, although it has been held that this rule applies only where there is other photopgraphic evidence of the same kind being offered.{footnote}Grimes v. Employers Mut. Liability Ins. Co., 73 F.R.D. 607, 610 (D. Alaska 1977)(film of personal injury plaintiff demonstrating impaired use of hands ordered redacted){/footnote}
2. Identification Through Videotapes
Videotapes may be used for the purpose of having a witness identify the accused in the same manner as photographs.{footnote}United States v. Houston, 892 F.2d 696 (8th Cir. 1989).{/footnote}
3. Common Subjects of Videotape or Film Evidence
§ 3(a). Re-enactments
Videotape or film may be used to illustrate an event, so long as it is shown to reasonably duplicate the event.{footnote} [4275]Hale v. Firestone Tire & Rubber Co., 756 F.2d 1322 (8th Cir. 1985)(film depicting accident with tire rim held inadmissible because of substantial dissimilarities between film and actual event); Sanchez v. Denver & R. G. W. R. Co., 538 F.2d 304 (10th Cir. 1976)(foundation must be closely scrutinized);
American State Bank v. County of Woodford, 371 N.E.2d 232 (Ill. App. 1978)(re-enactment of driver’s-eye view of accident).{/footnote}
§ 3(b). Experiments and Tests
Videotapes and films made of experiments or tests are admissible where the experimental or test conditions are shown to be substantially similar to the actual conditions in issue.{footnote}Chase v. General Motors Corp., 856 F.2d 17 (4th Cir. 1988); Shipp v. General Motors Corp., 750 F.2d 518 (5th Cir. 1985)(automobile roll-over); Bannister v. Town of Noble, 812 F.2d 1265 (10th Cir. 1987).
But see Szeliga v. General Motors Corp., 728 F.2d 566 (1st Cir. 1984)(dissmilarities between videtape of experiment involving wheel falling off went to weight, not admissibility).{/footnote} See also EXPERIMENTS.
§ 3(c). Demonstrations of Machinery
Videotaped and films may be shown to the jury to demonstrate the operation of machinery or equipment which are involved in a case.{footnote} [4277]Slakan v. Porter, 737 F.2d 368 (4th Cir. 1984)(hose used by prison guards on inmates); Petty v. Ideco, Div. of Dresser Industries, 761 F.2d 1146 (5th Cir. 1985); Nachtsheim v. Beech Aircraft Corp., 847 F.2d F.2d 1261 (7th Cir. 1988); Abernathy v. Superior Hardwoods, Inc., 704 F.2d 963 (7th Cir. 1983)(videotape depicting how logs are unloaded; sound portion reflecting background noise omitted because misleading as to what plaitniff would have heard); Saturn Mfg., Inc. v. Williams Patent Crusher & Pulverizer Co., 713 F.2d 1347 (8th Cir. 1983).{/footnote} Such demonstrations may be excluded if they are unduly prejudicial.{footnote}Swajian v. General Motors Corp., 916 F.2d 31 (1st Cir. 1990)(truck breaking an axle).{/footnote}
§ 3(d). "Day-in-the-Life" Films
Videotapes showing daily activities of an injured plaintiff are generally admissible to show effect of injury.{footnote}Bannister v. Town of Noble, 812 F.2d 1265 (10th Cir. 1987); Grimes v. Employers Mut. Liability Ins. Co., 73 F.R.D. 607 (D. Alaska 1977)(film of personal injury plaintiff demonstrating impaired use of hands).
Barenbrugge v. Rich, 141 Ill. App. 3d 1046, 490 N.E.2d 1368 (1st Dist. 1986){/footnote} Defense counsel need not be present during the filming, but all footage must be disclosed to the defense, and the defense can use any of that footage as part of its case.{footnote}Cisarik v. Palos Community Hospital, 193 Ill. App. 3d 41, 549 N.E.2d 840 (1st Dist. 1989).{/footnote}
§ 3(e). Demonstrations of Injury.
Videotaped and films may be shown to the jury to demonstrate the extent and impact of a plaintiff’s physical injury.{footnote}Grimes v. Employers Mut. Liability Ins. Co., 73 F.R.D. 607, 610 (D. Alaska 1977)(film of personal injury plaintiff demonstrating impaired use of hands).{/footnote}
§ 3(f). Surveillance Films by Defense. See SURVEILLANCE.
§ 3(g). Depiction of Accident Site
Videotapes and films are frequently admitted for the purpose of illustrating the scene of an outdoor accident and the configuration of objects relevant to the accident.{footnote} [4282]Karl v. Burlington Northern R. Co., 880 F.2d 68 (8th Cir. 1989)(railroad crossing).{/footnote}
§ 3(h). Security Camera Footage
Film taken by security camera of crime may be admitted as probative in and of itself, even if no eyewitness can testify that the film accurately depicts what occurred.{footnote}United States v. Rembert, 863 F.2d 1023 (App.D.C. 1988).{/footnote} Where the film is shown to illustrate an eyewitness’ testimony, the fact that the camera was not positioned at an angle similar to the one from which testifying witness saw the incident does not make it inadmissible.{footnote}United States v. Bynum, 567 F.2d 1167 (1st Cir. 1978); United States v. Taylor, 530 F.2d 639, 642 (5th Cir. ____).{/footnote}
4. Videotaped Depositions.{footnote}66 ALR3d 637 (civil cases).{/footnote}