Seeing is believing: civil litigation in the surveillance age
By Kirsten McMahon, Associate Editor
New technologies have made it easier than ever to capture a collision in real time, however, given the sheer volume of digital evidence new practices and laws are required, Toronto critical injury lawyer Patrick Brown writes in The Lawyer’s Daily.
“Chances are, if an incident wasn’t caught on an iPhone, iPad, tablet, dash cam, GoPro or camera, the local traffic, retail store or bank surveillance has caught something on their camera footage,” writes Brown, a partner with McLeish Orlando LLP. “Needless to say, privacy in our digital age is a rare phenomenon.”
With these new technologies, unclear statements are a thing of the past. Footage can be watched in real time, and gone are the days of carefully crafted and slanted statements, he says.
In the realm of civil litigation, it’s more common than not to have video footage of an accident. However, Brown says with this new digital age comes new practices and hopefully new laws.
“I have one case where a bus driver rear-ended a car, pushed it into an elderly pedestrian and killed him. When seeking to obtain the video from the bus, I was advised that it was no longer available because according to the bus operator, the police had decided that it was not needed and therefore not preserved,” he writes.
“By the way, the elderly man was given a jaywalking ticket. Fortunately, in the civil suit, an eyewitness deposed that the car had been stopped for some time so as to let the elderly man cross the street. The bus, however, did not and barreled into the rear of the car propelling it into the pedestrian,” Brown continues.
Whether or not a crash is fatal, he says the automatic downloading of video footage by government-run agencies should be mandatory.
“Picking and choosing what footage is ‘needed' is simply not an option. New laws must be passed requiring mandatory preservation of all video footage and the release of such should be made to all victims and interested parties,” he writes.
This new practice of preservation can swing both ways, Brown says, as it may help or hurt your client, but a choice in which way you want to go should not be an option anymore.
When introducing video evidence at trial, keep in mind the authenticity of the footage, he writes, as video recordings can be edited to rearrange the chronology of events depicted or distort time.
“I discovered during one trial that certain portions of my client getting someone else to carry things from his car had been cropped out of the surveillance video. It only became apparent when the unedited tapes were produced,” he writes in the article.
“You also need to remember that ‘compressing’ video data to save to a hard drive can lead to data loss and affect image quality. If you cannot show the chain of custody of the video evidence or that it accurately depicts what is said to be shown, your video evidence can be thrown out, causing devastating consequences for your case,” he continues.
A recent case addressed how trial courts should address the issue of the authenticity of video recordings. In the matter, two co-appellants were found guilty at trial of assaulting another inmate at an Edmonton correctional facility.
“A surveillance video captured the fight which formed part of the Crown’s case on the key issue of identity,” Brown says. “The video was ‘less than clear’ and defence challenged its admissibility arguing the Crown had not sufficiently authenticated it.
The appeal court held that a trial court should not concern itself with whether the recording was altered but rather with the degree of accuracy of its representation. The ruling also held that a judge may rely upon circumstantial evidence to authenticate a video recording, he says.
Given the volume of digital evidence due to our obsession with electronic devices this area of law has become hotly contested, Brown writes.
“Future cases will undoubtedly continue to tackle these issues as we move further along into this digital era,” he says. “In a time of fake news and spin doctors, sometimes seeing is believing and we have the technology to do it.”