Objecting to Video and Audio Evidence Without Hesitation

Don’t let prejudicial video and audio evidence be admitted in court — and overcome objections to your own evidence. Here are some tips for making the right objections at trial, excerpted from our book Trial Objections:

Audio, Video, or Motion Picture

“Objection, Your Honor. The (audiotape) (videotape) (motion picture) being offered (lacks adequate foundation) (is irrelevant) (is prejudicial) (depicts an occurrence not substantially similar to the one involved in this litigation).”

Comments

Virtually all courts that have addressed the admissibility of audiotapes, videotapes or motion pictures have recognized their value and approved their use. Several courts (and F. R. Civ. P. §101(2)) treat videotapes and motion pictures as photographs, subjecting them to the same foundation and verification requirements (see §303, supra). Also, like photographs, the admissibility of audiotapes, videotapes and motion pictures is generally left to the trial court’s discretion. The sound portion of videotapes is subject to the same foundation and verification requirements as are audiotapes.

Tactics

• If there is no witness present that can be cross-examined, argue that the substance of the audiotape or videotape is hearsay.
• Has a technician or camera operator laid a proper foundation? When visibility, the time of day, weather conditions, or some similar factor is at issue in the litigation, the technician should testify as to the related aspects of motion picture making, e.g., if visibility is at issue, he should testify as to when the film was shot, what kind of film was used, and the lighting conditions.
• Make your opponent establish substantial similarity between the occurrence in issue and the events portrayed on the videotape.
• If it is appropriate, argue that the audiotape or videotape is cumulative and prejudicial or will not assist the jurors in the determinations of the facts of the case.
• If appropriate, argue that the videotape is not a reasonable representation of that which it is alleged to portray.
• If the audiotape is of poor sound quality, argue that its admission may confuse the jury.

Response

• Offer, with appropriate advance preparation, to have a witness testify as to any foundation problems. This may include the technical aspects of producing the video or audiotape, as well as the conditions under which it was produced.
• Argue that your videotape will save the court substantial time, since it avoids live demonstrations in court, or even more time-consuming demonstrations outside of court.
• Argue that your videotape simplifies a complex matter that would otherwise be difficult to understand (especially if your case involves technical product liability matters).
• Emphasize the discretion available to the court.
• Suggest that the objection can be resolved with a limiting instruction to the jury. Assuming proper foundation and authentication, such an instruction will frequently overcome most objections without diminishing the effectiveness of the evidence.

Foundation

• A certain activity was recorded by the operator.
• The operator was in all respects qualified to do the recording.
• The speakers on the tape are identified.
• The equipment used by the operator was in all respects operating properly.

The witness testifies:

• Regarding what equipment was used.
• That proper procedures associated with the recording activity were observed.
• That the chain of custody with respect to the recording, if important, was preserved.
• That the recording is an accurate reproduction of the activity.

Practice Tip

An objection on foundation grounds may be sustained if proffering counsel is not prepared with respect to the actual presentation of the recording, i.e., playback equipment does not work or there is a problem finding the excerpt from the recording that is actually being entered into evidence. Accordingly, to preserve an otherwise good foundation and avoid problems, make sure that all of the logistics associated with the playback of the recording are in order so that the court cannot use this as an excuse to preclude otherwise admissible evidence.

Practice Tip

For audiotapes, hire a certified court reporter to prepare a transcript. Send the transcript to your adversary and seek a stipulation that it is true and correct. Give him or her the opportunity to make any undisputed corrections. Taking the time to do this will diffuse the force of any objections at trial to the use of the recording, and may even permit you to have the jurors refer to the transcript while they are listening to the recording.

Federal Cases

United States v. Brown, 587 F.3d 1082 (11th Cir. 2009). The district court did not abuse its discretion when it admitted an audiotape of a drug transaction. The defendant argued that the tape had not been properly authenticated, but the court ruled that if there is independent evidence of the accuracy of a tape recording at trial, the appellate court must be very reluctant to disturb a trial court’s decision, even if the party offering the evidence did not necessarily meet with all of the typical requirements for authentication. In this case, the agent laying the foundation was able to testify she heard the conversation as it occurred over the wire and testified at trial that the tape was authentic.

[Summaries of 7 other federal cases are included in the book.]

State Cases

People v. Gonzalez, 135 P.3d 649 (Cal. 2006). The photograph of the crime scene was admissible even though the location of the photographer was unknown, the detective in the photo standing where the gunman was reported to have stood was taller than the gunman, and the photograph was taken with a flash so it did not show the actual lighting conditions. The photograph was offered to show where witnesses had said the gunman was standing, and not the height of the gunman or the lighting conditions.

[Summaries of 15 other cases, from 5 different states and the District of Columbia, are included in the book.]

About the Author

R. Rogge Dunn is a trial lawyer who loves trying cases. He has litigated complex business, employment, partnership and insurance disputes throughout the country; he has represented clients in disputes arising in Brazil, Canada, Mexico, Scotland, Qatar and throughout the U.S.

Mr. Dunn earned his B.A., cum laude, with Departmental Distinction in English, from Southern Methodist University in 1980. He earned his J.D., with honors, from the University of Texas in 1983. At the University of Texas Law School, he served as a Note Editor of the Texas Law Review from 1982-83 and was a member of the Board of Advocates from 1981-83. He clerked for the Honorable Reynaldo Garza of the U.S. Fifth Circuit Court of Appeals from 1983-84. Mr. Dunn is Board Certified in Texas in both Civil Trial Law and Labor and Employment Law.