Video Trial Exhibits
| Publication year | 1998 |
| Pages | 10 |
| Citation | Vol. 11 No. 2 Pg. 10 |
John Farell Fay, J.
More often these days when the stakes are high, trial attorneys try to persuade the jury with computer videos attempting to recreate or simulate what actually happened or with plain videos to help portray how their clients' injuries severely impact their every day lives. [Note: It is interesting to note that day in life videos are the plaintiff's trial weapon yet, historically such videos are the birth child of the surveillance film long used by the defense bar to show malingering plaintiffs.]
DAY IN THE LIFE AND SURVEILLANCE VIDEOS:
Attorneys representing seriously impaired and disabled clients will often want to introduce videos that portray a "day in the life of" their clients. Such videos can be highly effective in demonstrating the day to day difficulties and challenges plaintiffs must endure with even the most taken-for-granted tasks, e.g., getting in and out of bed or a chair, bathing and dressing, using the bathroom, negotiating stairs, etc. They can portray how the plaintiff now interacts with his family and other loved ones and can show the extent of his daily medical needs all leading to a greater understanding of the reality of the burdens of his present life. In many cases the video will show how the plaintiff has been forced to modify his home to accommodate his injuries. Thus, day in the life videos enable the jury to compare the plaintiff's lifestyle with that of a comparable, non-disabled person. Such videos are valuable when you have an unsophisticated client who is unable to verbally paint a picture of his impairments and how they disable him. Such videos are near essential for the client too ill to come to court. Hence, the video will aid the jury in determining the nature and extent of plaintiff's injuries, impairments and attendant disabilities. With permission during opening statement, and always during closing arguments, plaintiff can use still photographs from the video to effectively make his points. This permits counsel to focus on a particular injury or disability depicted in the "day in the life" video.
The general rule governing the admissibility of videos is that since they are a form of motion pictures they are admissible to the same extent as photographs. Roberts v. Stevens Clinic Hosp. (W. Vir. 1986) 345 S2d 791, 796 Cisctrik v. Palos Comm. Hosp. (111. 1991) 579 NE 2d 873, 875. In Utah, "photographs include still photographs, X-ray films, video tapes, and motion pictures." URE, Rule 1001(2)
Admission of these videos however, is not without formidable contest. Defense counsel will object to the video, charging that it is inflammatory and unduly prejudicial. Plaintiff's counsel will offer that while the scenes are unpleasant, so are the plaintiff's injuries. Plaintiff's counsel should argue that what it portrays is the plaintiff's "real" life and thus, it accurately shows his dependencies, physical limitations and frustrations. Since it is "real", it can't be "unduly" prejudicial. Finally, counsel should argue that the video is necessary for the jury to fairly assess the plaintiff's continuing pain and suffering and from this, determine what is adequate compensation for him.
Exclusion prejudice means more than the expected damage or prejudice done to the adversary's claim or defense through introduction of the video. Exclusion prejudice means any, "undue tendency to suggest a decision on improper grounds." Leonard v. Nichols Homeshield, Inc., 384 PA 1; 557 A2d. 743. It is argued that day in the life videos generate too much sympathy for the plaintiff. Exclusion prejudice has been defined by other courts to include a video which "serves little purpose other than to create sympathy for the plaintiff." Bannister v. Town of Noble, (10th Cir. 1987) 812 F.2d 1265, but this same court said ,"the possibility that a film will be prejudicial is significantly reduced when the subject of that film can be cross examined at trial." Id. ¶1270. Clearly, being unavailable for cross-examination is a problem for plaintiffs too ill to come to court. Here, plaintiff will need to present a knowledgeable narrator to authenticate the video.
Courts are legitimately concerned that a video which generates great sympathy for the plaintiff may improperly lead the jury to determine the liability issues against the defendant. Aware of this danger, one way courts have found to admit a highly prejudicial video is to keep it from the jury until liability has been established. Grimes v. Employer Mut. Liability (USDC, Alaska, 1977) 73 F.D.R. 607, 610. Here plaintiff asks for a bifurcated trial or a directed verdict on liability after he puts forth all his liability evidence. On occasion, the exclusion of a video is affirmed as too prejudicial in a jury trial but the appellate court has indicated it may have admitted it in a bench trial. Thomas v. C. G Construction Co., (USDC D. So. Carolina, 1979) 465 F. Supp. 566, 570.
Often, defense counsel objects to a video claiming that it is highly prejudicial. Defendant will argue that the plaintiff is a malingerer or tremendously over exaggerates his injuries and their effects on his daily life. Plaintiff can counterattack asserting that defense counsel could have made (had an opportunity to make) a surveillance film to refute the plaintiff's video. When defense didn't take this opportunity, they waived this valuable right and should not now be heard to complain.
Defendants will argue that a video should be excluded because it is cumulative and hearsay evidence. Technically speaking, however, "a video is only cumulative of other photographic evidence of the same kind." Grimes supra, ¶ 610. A. Scott, Photographic Evidence Sec. 1022 ¶ 332 (2nd Ed. 1969). Knowing that they can exclude a video when they can show, "the motion picture is...
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