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Admissibility of Video Camera and Videotape Footage in Colorado Criminal Cases
As video recordings, such as body camera footage, cell phone footage, and surveillance camera footage, become more prevalent in today’s society, the use that footage in criminal cases becomes more prevalent as well. For example, as more and more police agencies employ the use of body cameras to monitor public interactions with police, often that footage can end up as evidence in a criminal trial if charges are brought against a defendant. This article discusses admissibility issues of video footage in Colorado criminal cases.
General Considerations for Admitting Video Footage into Evidence in Colorado Criminal Cases
As with any trial in a judicial court, including civil and criminal trials, any evidence that is submitted to the trier of fact must comply with applicable rules of evidence in order to be admissible. For criminal cases in Colorado state courts, the specific rules governing admission of evidence at trial are the Colorado Rules of Evidence (“C.R.E.”). Accordingly, any video footage that a party wishes to submit at trial in a Colorado criminal case must comply with the Colorado Rules of Evidence.
In general, there are two kinds of sensory evidence contained within video footage. Visual evidence; that is, what the video footage actually depicts. And audio evidence; that is, any verbal statements or sound that is contained within the video footage. This primary distinction gives rises to different evidentiary requirements that are applicable depending on what aspects of the video are being offered into evidence.
If just the visual aspects of a video are being offered into evidence; for example, if the video contains no audio; then the video must comport with traditional rules for photographic evidence. If audio is included with the video then additional evidentiary rules, such as those governing hearsay, are also applicable.
Admissibility of Visual Aspects of Video Footage in Colorado Criminal Cases
Where just visual aspects of a video are sought to be admitted into evidence, the Colorado Rules of Evidence treat those aspects similar to traditional still photographs. Accordingly, in order to be admissible, the video footage must comply with evidentiary requirements applicable to photographs. See People v. Avery, 736 P.2d 1233, 1238 (Colo. App. 1986) (indicating that the law and policy governing the admissibility of photographs applies to videotapes).
The primary requirement for admitting visual evidence, such as photographs and videotapes, is that the evidence must be authenticated before it is admitted. That is, there must be sufficient evidence on the record to establish that the visual evidence is what it purports to be.
Most commonly this is done by having an individual with knowledge of the video testify at trial and lay foundation demonstrating that the video is an accurate representation of what occurred. Some examples of what a witness may testify to in order to authenticate the visual aspects of a video include:
– Describing how specifically the film or video was created;
– If applicable, testifying that the witness was the one who filmed or created the video;
– Describing the circumstances or environment that are depicted in the video;
– If the witness saw the events first-hand, testifying that the video depicts what actually occurred;
– Indicating that the equipment used to make the video was in good working order;
– Identifying the video being offered for admission into evidence as the correct video;
– Indicating that the video is a fair and accurate depiction of the activity reflected in the video.
See C.R.E. 901(b)(1); People v. Armijo, 179 P.3d 1234 (Colo. App. 2007) (upholding the admissibility of surveillance camera footage where the security director had described the surveillance system and testified that the footage was an accurate depiction of what occurred on the day of the robbery).
Notably, the authentication of visual aspects for videos does not necessarily require that the person who took the video testify as to its authenticity. Instead, authentication can be satisfied by a witness with first-hand knowledge of the event and who is able to testify the video accurately depicts what it purports to.
That is, authentication may be established either by testimony that demonstrates the video was recorded in an accurate manner, or by testimony which corroborates the video is an accurate depiction of what occurred. See People v. Baca, 378 P.3d 780 (Colo. App. 2015); United States v. McNair, 439 F.Supp. 103 (E.D. Pa. Aug. 11, 1977).
Admissibility of Audio Aspects of Video Footage in Colorado Criminal Cases
In contrast to visual aspects of video footage, where admissibility is primarily focused on establishing the accuracy of what is depicted, when a video also contains audio aspects, rules applicable to audio statements apply as well. The most common evidentiary rules applied to audio contained within a video are hearsay rules.
That is, where a video contains audio statements, the video must not only be authenticated in conformance with the requirements discussed above but, also, any audio statements included in the video must also comply with hearsay rules in order to be admitted. Generally speaking, hearsay rules ban out of court statements that are made for the truth of the matter asserted.
In particular, Colorado Rules of Evidence 801 to 807 are the hearsay rules applicable in Colorado courts. While hearsay is generally defined to include any statements made out of court, there are many exceptions to the rule. The following are some of the most common exceptions:
– A statement previously made by a witness that is inconsistent with the witness’s testimony;
– A statement made by a party to the case and that is offered against that party at trial;
– A statement made contemporaneously with a startling event and relating to the startling event;
– A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition;
– Statements made for the purpose of medical diagnosis or treatment;
– Statements regarding a person’s character in the local community;
– A statement made by a witness that is unavailable for trial and the statement is adverse to that witness’s interest;
See C.R.E. 801; C.R.E. 803; C.R.E. 804. Notably, there are over 20 exceptions to the hearsay rule meaning that, frequently, out of court statements are admissible even though they may otherwise qualify as hearsay.
Overall, where a video contains statements and those statements fit within a hearsay exception, then the audio aspects of the video may be admitted along with the video aspects. However, if the audio aspects do not comport with hearsay rules, then those aspects of the video may have to be redacted or otherwise removed in order for the video to be admissible. In such circumstances, only the video aspects of the footage may be entered into evidence. See People v. Davis, 218 P.3d 718 (Colo. App 2008) (admitting one videotape that complied with hearsay requirements and excluding another videotape that did not).
© 2017 J.D. Porter, LLC. Author: Jordan Porter. Denver, Colorado.