§ 27.03 Videotapes and Movies

• Jurisdiction: United States

§ 27.03 Videotapes and Movies

The admissibility of videotapes and movies depends on their use. First, parts of a trial, including the testimony of witnesses, may be presented to the jury through videotape—i.e., in a prerecorded videotaped trial.²¹ Second, a videotaped deposition may be offered as a prior inconsistent statement²² or as former testimony if the declarant is unavailable to testify at trial.²³ Third, an out-of-court experiment may be videotaped and proffered at trial.²⁴ Fourth, videotaped reenactments may be introduced in evidence.²⁵

[A] Videotape Evidence

Videotapes may also be used in the same way that photographs are—to depict a scene or an object.²⁶ Videotapes of the commission of a crime,²⁷ the confession of an accused,²⁸ the conduct of an intoxicated driver at the time of arrest, or an allegedly incapacitated plaintiff playing basketball may be admitted upon a showing that they accurately depict the scene which they purport to portray.²⁹

Other evidence rules may also apply—for example, the rule of completeness³⁰ and the best evidence rule.³¹ Moreover, the audio part of the tape may contain inadmissible hearsay.

[B] "Day-in-the-Life"Videotapes

What are known as "day-in-the-life" tapes are offered to show the daily struggles of an injured party, typically offered on the issue of damages.³² They raise the following concerns: (1) "whether the videotape fairly represents the facts with respect to the impact of the injuries on the plaintiff's day-to-day activities," (2) the possibility of self-serving behavior because of plaintiff's self-awareness of the purpose of the videotape, (3) "the dominating nature of film evidence," and (4) jury distraction "because the benefit of effective cross-examination is lost."³³ These are Rule 403 issues.

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Notes:

^[21] See Ohio R. Civ. P. 40 (pre-recorded testimony).

^[22] Fed. R. Evid. 613 (prior inconsistent statements).

^[23] Fed. R. Evid. 804(b)(1) (former testimony).

^[24] See supra § 9.09 (out-of-court experiments).

^[25] See Note, Videotaped Reenactments in Civil Trials: Protecting Probate Evidence from the Trial Judge's Unbridled Discretion, 24 J. Marshall L. Rev. 433 (1991).

^[26] See People v. Taylor, 956 N.E.2d 431, 438, 440 (Ill. 2011) ("Most jurisdictions now allow photographs and videotapes to be introduced as substantive evidence so long as a proper foundation is laid. Such evidence is generally admitted under the 'silent witness' theory"; "While the camera may not have worked perfectly, it...