A federal jury in January convicted three defendants on four counts: firearm-related murder of Rodney Maxwell, discharging a firearm during a crime of violence, Hobbs Act robbery conspiracy and Hobbs Act robbery. The charges came from an armed robbery gone wrong at an illegal gambling spot in Brownsville in Brooklyn. At a status conference for the trial, Judge Eric. R. Komitee expressed concerns with a video the government was trying to admit into evidence, stating issues with prejudicial risks from potential “Hollywood” editing and interposed design elements of the video. The video was a compilation video that involved snipping together parts of different surveillance videos from the crime scene and drawing circles around the suspects and key pieces of evidence. Judge Komitee specifically raised concerns with the added graphics.[1]
This raises two key questions: First, what are the benefits and risks of video editing in legal evidence? Second, how have courts set boundaries on such edits? This blog post will address both questions.
Issues of Perception
Even thinking about plain camera footage, there is plenty of room for potential bias (e.g., how the footage frames the story and how different viewers might intepret a given framing.) Take, for example, body cameras on police officers. The CEO of Axon, a large producer of body cameras, in the documentary All Light, Everywhere, discussed how it was important to build cameras with lenses that were only as good as the vision of an average human. He argued that if the lens was so much better than what the average person could see, then the jury could be biased by footage that did not accurately portray what the police office could see at the time they made a decision.
When layering on any amount of editing, it is easy to see how bias could significantly increase. Judge Komitee’s concern of “Hollywood” level productions is valid. Graphics that selectively highlight specific suspects can prejudice juries into focusing on the pieces that support one side’s argument while decentralizing the potential significance of elements not highlighted.[2] When a case could come down to who had more money to produce a better video, it is reasonable that judges should be warry.
In defense of compilations and editing, edits can also enhance and expedite the viewing experience for juries. In the Powell case, the government argued that there were hours of surveillance footage that would otherwise have to be shown to the jury; the video cut down on this significantly, focusing just on the key moments before, during, and after the shooting and robbery. Juries may not want to, or need to, watch twenty minutes of surveillance footage just for the relevant thirty seconds of the video. Further, given that some of the footage may be traumatic, it may also be prejudicial for the jury to watch the full extent of certain incidents; often, key snippits can provide adequate support for either side of the trial. Also, since video quality is highly variable, the ability to graphically highlight important parts may be helpful to juries and counsel.
In Practice
Judges in both state and federal court around the U.S. have treated the admission of compiled, edited, or modified videos in different ways. When the video origins can be confirmed with initial footage also admitted, many judges are willing to admit edited videos into evidence. Admission of the original recording tends to be required to prove the contents of screenshots of videos per Federal Rule of Evidence 1002.[3] Judges typically evaluate the video compilations by weighing their prejudicial effect against their probative value, namely, the amount of new information, analysis, or opinions brought by this piece of evidence per Federal Rule of Evidence 403.[4] Several circuit courts have also considered the issue and decided that enhanced videos and recordings are admissible if (1) the enhancements were properly authenticated and (2) the analyst documented their steps when altering the source file.[5]
It’s worth looking at specific cases where edited or enhanced videos were allowed. In People v. Fernandez, video including time and date captions, circles, and arrows in a way that highlights portions of the video without changing the substance of the video were admitted, after the original surveillance videos were admitted.[6] The court in United States v. Seifert found that the district court did not err in admitting an enhanced, brightened video under the logic it enhanced the understanding of the jury.[7] Similarly, in United States v. Proano, the court held that there was sufficient evidence to convict a police officer of willful deprivation of constitutional rights despite the prosecution's use of slow-motion video, because the jury also saw the real-time video.[8]
Comparatively, some judges will altogether not allow altered videos and photographs containing artificial elements, instead only allowing the media in their original format. In Cunningham v. Shelby, the court held that the district court erred by relying on screenshots in judging the objective reasonableness of a particular use of lethal force.[9] In Johnson v. Barr, when defendants objected to a video compilation that involved splicing the body cam footage of multiple officers together and switching between videos without warning, the court accepted the objection for parts of the footage whose accuracy compared to the original videos was in question but allowed other parts not objected to.[10]
Conclusion
There appears to be a lack of clear consensus and guidelines on how much enhancement is too much and where the lines are for editing videos that are meant to be admitted into evidence. As video editing technologies improve and surveillance cameras become more ubiquitous, this dilemma will likely continue to be a relevant and divisive issue for the courts.
[1] See part of the surveillance video footage from the gambling spot incident in the video in this link: https://abc7ny.com/eyewitness-news-exclusive-brooklyn-shooting-brownsville-illegal-gambling/7063245/
[2] See a classic example of selective attention bias: https://www.youtube.com/watch?v=vJG698U2Mvo
[3] Carey v. Kirk, No. 21-20408-CIV, 2022 WL 4597806 (S.D. Fla. Sept. 7, 2022)
[4] Ducheneaux v. Lower Yellowstone Rural Elec. Ass'n, Inc., No. CV 19-6-BLG-TJC, 2021 WL 2109190 (D. Mont. May 25, 2021). See also United States v. Harris, No. 20-CR-00021-PAB-2, 2022 WL 1642498 (D. Colo. May 24, 2022); Hernandez v. City of Los Angeles, No. 219CV00441CASGJSX, 2022 WL 16551705 (C.D. Cal. Aug. 1, 2022); Lawrence v. Las Vegas Metro. Police Dep't, No. 2:16-CV-03039-APG-NJK, 2024 WL 2209012 (D. Nev. May 15, 2024).
[5] United States v. Roberts, 84 F.4th 659 (6th Cir. 2023); See United States v. Seifert, 445 F.3d 1043, 1045 (8th Cir. 2006); see also United States v. Carbone, 798 F.2d 21, 25 (1st Cir. 1986).
[6] People v Fernandez, 210 A.D.3d 693, 177 N.Y.S.3d 631 (2022).
[7] United States v. Seifert, 445 F.3d 1043 (8th Cir. 2006).
[8] United States v. Proano, 912 F.3d 431, 444 (7th Cir. 2019)
[9] Cunningham v. Shelby Cnty., 994 F.3d 761, 767 (6th Cir. 2021)
[10] Johnson v. Barr, No. 20-CV-01569-SK, 2021 WL 4313871 (N.D. Cal. Aug. 24, 2021).