Who Can Testify About Video Evidence?

Many cases now involve video of some form or another.  During the discovery process, many witnesses are typically asked about the meaning of facts on the videos.  While permissible in the context of discovery, some courts have concluded this questioning would be impermissible at trial unless the witness has personal knowledge of the events being depicted.  Naturally, Nevada has not yet addressed this point.

A lay witness may not testify to a fact unless “(a) Evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter; or (b) The witness states his or her opinion or inference as an expert.”^[1]  If a lay witness is to offer opinion testimony, it must be “1.  Rationally based on the perception of the witness; and 2.  Helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue.”^[2]

Applying this standard, some jurisdictions have concluded that a lay witness who lacks personal knowledge of the events depicted on a video may not then testify to those events or interpret them for a jury.  Kentucky has repeatedly considered this question.  Cuzick v. Commonwealth concerned videos recorded from police cruisers during a criminal pursuit.^[3]  The two officers driving the cruisers depicted in the video were permitted to testify to events depicted in those videos, over defendant’s objection. “It is significant to note, however, that every statement by both Fleming and Sapp was in direct response to a question asked by the Commonwealth and was describing the actions as they perceived them at the time of the chase.”^[4]

This testimony was consistent with Kentucky’s rules of evidence equivalent to NRS 50.025 and 50.265.  In Mills v. Commonwealth a police officer gave narrative testimony about a crime scene video.^[5]  This was permissible because it “comprised opinions and inferences that were rationally based on [the officer’s] own perceptions of which he had personal knowledge” and “was helpful to the jury in evaluating the images displayed on the videotape.”^[6]  However it was impermissible in Gordon v. Commonwealth for a witness interpret a poor quality audio tape of an undercover drug buy, rather than simply testifying as to his recollection of the conversation.”^[7]  Cuzick applied these cases to create a general rule that determining whether a witness may testify about events on a video depends upon “whether the witness has testified from personal knowledge and rational observation of events perceived and whether such information is helpful to the jury.”^[8]  If that threshold is met, the witness’s testimony is still limited.  “While a witness may proffer narrative testimony within the permissible confines of the rules of evidence, we have held he may not ‘interpret’ audio or video evidence, as such testimony invades the province of the jury, whose job is to make determinations of fact based upon the evidence.”^[9]  As to the officers’ testimony at issue, Cuzick concluded it was admissible because “the testimony was explicative of the officers’ perception of the events occurring on the video as they perceived them during the police chase and provided further elucidation of matters of police procedure, etc., which were not readily identifiable from the video standing on its own.”^[10]

The same issues arose in Boyd v. Commonwealth.  The witnesses “did not interpret the footage, nor did they offer their opinion on the subject. [They] merely narrated the events as they occurred and did not testify to anything that the jury could not see for themselves.”  This testimony was permissible.^[11]  But the witnesses also testified to events on the video “that they did not perceive in real time. Those parts of the narration were violative of KRE 602 and 701, because the testimony exceeded the witnesses’ personal knowledge of the events, and should not have been permitted.”^[12]

Maryland concerned the topic in a Paige v. State, a shoplifting case where a store loss prevention officer was allowed to narrate the events shown on the store’s video of the theft.  The officer’s personal knowledge was demonstrated because, “during the playing of the recording, it was apparent that Salley had operated the surveillance cameras on the day in question. She testified that, at one point, she switched cameras while following the man and zoomed in on his movements as he approached the three individuals.”^[13]  “Salley’s testimony, offering a narrative that described the events in the surveillance video, was based on Salley’s personal knowledge of the events that unfolded.”^[14]

North Carolina addressed the topic where a detective offered “narrative testimony about the depiction of two poor quality surveillance videos, each several minutes in length.”^[15]  “Detective Welborn offered his opinion, at length, about the events depicted in the surveillance tapes, concluding that the video corroborated the female’s testimony.”^[16]  The detective lacked personal knowledge of the events on the video.  Admitting this testimony conflicted with prior North Carolina law permitting narrative testimony “only when their interpretations were based in part on firsthand observations.”^[17]

The Supreme Court of the Virgin Islands summarized these decisions into one, concise, predictable rule.  “Consistent with these factors, courts have consistently held that, if an individual is not properly qualified as an expert, did not witness the depicted events while present at the scene of the crime, and lacks greater ability to correctly identify the defendant than the jury, that individual is prohibited from testifying to what is being shown on a surveillance video.”^[18]

The net result is that there is at least an argument that lay witnesses may not interpret the facts on a video unless they first demonstrate personal knowledge of the events the video depicts.

[1] NRS 50.025(1).
[2] NRS 50.265.
[3] 276 S.W.3d 260, 264 (Ky. 2009).
[4] Id. at 265.
[5] 996 S.W.2d 473 (Ky. 1999).
[6] Id. at 488.
[7] 916 S.W.2d 176, 180 (Ky. 1995).
[8] 276 S.W.3d at 265.
[9] Id. at 265-66.
[10] Id. at 266.
[11] 439 S.W.3d 126, 131 (Ky. 2014).
[12] Id. at 131-32.
[13] 126 A.3d 793, 812 (2015).
[14] Id.
[15] State v. Buie, 671 S.E.2d 351, 355 (N.C. App. 2009).
[16] Id.
[17] Id. at 356.
[18] Fontaine v. People, 56 V.I. 571, 588 (2012).