Chapter 17 Videotapes, Photographs, Documents, and Writings as Evidence

Videotapes Photographs Documents Writings

E.g., suspect’s home, apartment, or office. When is a warrant needed to install and conduct videotape surveillance? Search warrants must be obtained to conduct videotape surveillance when a suspect has a right of privacy in the place where the videotape surveillance is to be conducted. E.g., suspect’s home, apartment, or office.

Employee Offices (Cont.) An employee’s office can be a place where a reasonable expectation of privacy exists as it applies to video surveillance. However, in most situations, the courts have found workplace searches valid without search warrants.

Using Photographs As Evidence Photographs and videotapes are demonstrative evidence because they portray objects, persons, or events not in the courtroom. Videotapes present many pictures of an event or object, whereas a photo presents only one picture.

Gruesome Photographs and Videotapes Photographs of some crime scenes and victims are shocking and horribly gruesome. Such videos or gruesome photographs could be used as evidence if they are relevant to some issue before the court. However, if they are deemed to “shock the conscience” of the court, they will not be admitted into evidence.

Using Documents and Writings As Evidence Documents and writings are involved in practically all civil cases and many criminal cases. In criminal cases, this could include written confessions, bad checks, drug records and accounts, written evidence of fraud, business and hospital records, betting slips, etc.

Using Documents and Writings As Evidence (Cont.) The party seeking to use a document or writing as evidence must show that the document or writing is not only relevant and material but also genuine and authentic.

Using Direct Evidence to Prove That Documents Are Authentic and Genuine Documents and writings may be proven genuine and authentic by any of the following forms of direct evidence: Testimony of a witness who observed the signing or the writing of the document Testimony of the person who wrote or signed the document acknowledging that the writing was genuine

Regularly kept business records Using Direct Evidence to Prove That Documents Are Authentic and Genuine (Cont.) Regularly kept business records Testimony establishing proof or handwriting by an expert witness Testimony of a person who is not a handwriting expert but well acquainted with the handwriting of the criminal The contents of the document or writing

Using Circumstantial Evidence to Prove That Documents Are Authentic and Genuine The majority of documents and writings introduced for use as evidence in criminal trials are proven authentic and genuine by direct evidence or by the contents of the document or writing itself.

Types of Circumstantial Evidence That May Be Used Circumstantial evidence such as the fact that the writing was in the custody of defendant, the victim, or deceased. Ancient documents rule, which permits the use of circumstantial evidence where the document has been in existence for a number of years.

Types of Circumstantial Evidence That May Be Used (Cont.) Circumstantial evidence derived from the fact that the document or writing was in the custody of a public official. The reply doctrine, which permits the use of circumstantial evidence to show that a writing was in response to other communication.

The Best Evidence or Original Document Rule Federal Rules of Evidence 1002 through 1006 state the best evidence rule (original document rule) used today in federal courts and most state courts.

The Best Evidence or Original Document Rule (Cont.) Rule 1002 provides that the best evidence rule applies to “writing(s), recording(s), or photograph(s)” and requires the original unless (1) Original is lost or destroyed (2) Original is not obtainable (3) Original in possession of opponent (4) “The writing, recording, or photograph is not closely related to a controlling issue” (Rule 1004)

Fourth Amendment Protection of Writings, Records, and Documents The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The plain-view and public-view doctrines apply to documents and writings as follows:

Fourth Amendment Protection of Writings, Records, and Documents (Cont Plain-view: If officers are where they have a right to be (legally) and see a document or writing in plain view that is immediately apparent to be evidence of a crime, they may seize it. Public-view: Handwriting, like the tone of a person’s voice, is constantly exposed to public view and, therefore, samples may be compelled by court or grand jury order.