February 8, 2019

“And the Academy Award for “Best Editing” Goes to…”

Alex_Article

Author: Alex Wolfe, Associate

How Short Excerpts of Surveillance Recordings May Lead to Inadmissibility.

As a caution to any private investigators out there who may have aspirations of becoming the next Stephen Spielberg or Martin Scorsese; don’t yell “cut” to soon while you’re “on-set” recording the plaintiff. In Rolley v. MacDonell, [2017] O.J. No. 6961, Superior Court Justice Corthorn dismissed the defendant’s motion to substantively rely on a series of surveillance video excerpts because they did not fairly and accurately embody the underlying events they purported to depict. In his ruling, the trial judge traced the investigator’s incomplete, excerpted depictions of the plaintiff to the discretionary act of pressing the record button. Despite strong arguments from the defence team that gaps in recordings can be reasonably expected while “on set,” the judge branded the videos as a “series of excerpts pieced together through editing” and commented that video excerpts cannot be said to substantively represent factual events if a judge or jury is required to infer what transpired in-between “takes.” In conclusion, counsel facing a voir dire motion to admit surveillance films (to Cannes, Sundance, or TIFF) should ask themselves the following questions before the motion is heard:
1. What is the substantive purpose of admitting the surveillance evidence?
2. How does this particular video achieve the substantive purpose?
3. Is the surveillance evidence a continuous video or an excerpt?
4. What is missing from the video? Do time gaps or breaks in recording exist? If so, can the investigator explain why the gaps exist?
5. Will the trier of fact need to make an inference in order to understand what the video is depicting?
6. Did the investigator objectively produce a quality product? Does their filming style leave you puzzled as to what is actually occurring in the video?
Although watching continuous, unedited video segments can be as exciting as watching the credits roll, counsel who follow the holdings in Iannarella v. Corbett and this case can help shorten trial time and get you “two thumbs up” from the trial judge.

Less is Not Always More: Admitting Surveillance Excerpts vs. Continuous, Unedited Videos