With the ubiquity of cell phones and their cameras, attorneys often face questions about the admissibility of various types of cell phone evidence. Video recordings may be especially pertinent for domestic violence cases as this type of abuse often happens in private spaces and without witnesses. A victim of domestic violence may be able to pull out their phone while the abuse is happening, or while their abuser is admitting to it, and make a visual record of it. Likewise, someone accused of domestic violence might have footage that shows events did not happen as alleged. For recorded evidence to be admissible, however, an experienced attorney will need to assess the footage and convince the court that the evidence is authentic and relevant.
Verifying Authenticity of Video
Authenticity is a key component in determining the admissibility of evidence. The owner of the video recording must be able to verify its authenticity, which is possible through testimony that the recording is legitimate and unaltered. If the video cannot be authenticated, it will likely be excluded as hearsay.
Videos from social media or elsewhere online are even harder to authenticate because in order for the evidence to be admitted, the original footage must be recovered. Sometimes, the original video can be subpoenaed or recovered in a search warrant.
Two-Party Consent Required for Audio Recording
Videos featuring an audio component are subject to the Pennsylvania wiretapping law, which requires consent of all parties involved to record a call or conversation in private. It is a crime to record another person's private communication without such consent. However, videos filmed in public—where there is not the same expectation of privacy—are not subject to this same consent requirement. This means that depending on the location of the filming, the audio element of your video evidence may be protected as private communication, whereas the video footage may not be.
Other Issues with Admissibility
Cell phone videos, even when authenticated and admitted, could face other hurdles in the courtroom. Their credibility can be called into question based on a variety of issues such as lighting, video quality, location, timing, etc. Though phone cameras are often very high quality, the nuances of recording could mean you or someone else fails to effectively capture a particular event and therefore leaves too many questions about the integrity of the footage. If the video is grainy and poorly lit, for example, a jury may not be able to properly identify the perpetrator, rendering the footage not much more reliable than hearsay.
If you've been accused of domestic violence and believe there's relevant cell phone video in your case, talk to an experienced attorney. Joseph D. Lento and the Lento Law Firm can assess the cell phone evidence and determine how best to handle it in your defense. Contact our team online or call 888-535-3686 for a consultation.