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How is Video Evidence being used in Civil Litigation?

Introduction

Video surveillance systems are a critical component for business and residential customers. They secure designated areas and help deter crime simply by their presence. Incidents or crimes commonly recorded by surveillance systems include but are not limited to fighting, shooting, fire, theft, and vandalism. 

Casinos, County Jails, or consumers’ homes rely upon active surveillance. Active surveillance is reviewed live through a VMS (video management system) or in a mobile phone app. Businesses like convenience stores, automotive repair shops, or law firms rely upon passive surveillance methodology. The video is recorded and saved for future evaluation or analysis.  Suppose an individual handling the evidence needs to be appropriately trained or has the necessary experience. Digital evidence, by nature, is fragile. If not handled by following best practices, the video can lose its digital integrity, reduce the accuracy of the chain of custody, introduce artifacts, and reduce the overall quality. We have investigated cases where a client mishandled the evidence before our involvement, which caused them to pay out higher settlements.

So why hire a professional like a video forensic expert to assist with collecting surveillance video recordings in civil litigation? The following post is designed to inform attorneys, investigators, and litigators about the benefits of engaging a video forensic expert to recover video recordings after an incident.

Case Study

As a Forensic Video Analyst, I recently assisted a client-attorney representing the defense in a civil matter. This case was civil; our client (civil defense) was accused of blocking an easement area of the shared property or violating an easement agreement. This case involved collecting and reviewing hundreds of hours of surveillance video recordings. 

Request

The client’s property has a 32-channel HIK-Vision NVR system which housed critical recorded video evidence relative to the case. The client-attorney requested that our team assist with culling through 8 weeks of high-quality 4k video evidence from a single camera. When any instance of obstructing an easement was observed, a still frame of surveillance video was extracted and exported from the video. These still video frames would be compiled as an exhibit and represent instances of importance that the Judge and Jury would need to review about the breach of the easement contract. 

Best practices for Data Acquisition from Digital Video Recorders from SWGDE should be considered when preserving the integrity of the video recordings collected as evidence. In instances where the contents of the entire drive are requested for an investigation, the best practices recommend removing the original evidence hard drive and imaging (cloning). Thus, 10 TB of video recordings on the HIK-Vision hard drive was extracted, forensically imaged, and reviewed by the team at Primeau Forensics. The defense agreed that the preservation of the integrity of the evidence was critical.  

The HIK Vision NVR system had 32 channels of cameras installed at the location where the evidence video recordings were collected. Although these systems record reliable, high-quality video evidence, they do not always capture original video and may require forensic video authentication testing. 

Video Evaluation Process

Our team began the investigation by proposing an investigation plan to the defense team. This investigation plan was critical in determining how the video evidence would be reviewed so we would meet the trial deadline, which turned out to be a 10-business-day turnaround. Using industry-standard tools such as DVR Examiner and Amped Five, our team of 4 technicians reviewed the video recordings and extracted hundreds of still image exhibits for trial use. 

DVR Examiner is the most effective tool for extraction from the proprietary NVR video system. The 10 TB evidence drive was forensically cloned and connected to DVR Examiner using a write blocker. The total export was extracted to multiple working drives. One working drive for our team, another for the Plaintiff, and the third for the defense (attorney-client). Our goal was to preserve all exhibits’ recording authenticity and digital integrity. 

Our team created a copy of the extracted video evidence on our forensic server. Once complete, we began assessing the video analysis project. Amped Five was critical and gave our team the ability to watch the video recordings efficiently and efficiently. Features like stepping through 30-second periods, bookmarking the video frames of interest, and bulk exporting these frames while retaining the frame number for reference to the video evidence were most important to the case. Amped Five also retained the integrity of the video recordings in preparation for any authenticity challenges from Plaintiff. 

Pre-Trial Assistance

Even the most experienced and talented attorney is only as successful when preparing for a trial as their litigation team. While at trial, I was able to provide additional information to newly discovered evidence that Plaintiff brought in while putting on their case. We also assisted in reviewing digital and printed binder image exhibits. 

To ensure that the judge and jury understood the timecode issue, I prepared a portable NVR system, which stored the eight weeks of video evidence. This evidence played the video with an accurate timecode through the NVR system. The video evidence was initially recorded with a timecode jumping issue. This assistance before testimony was critical in preparing to answer questions on the stand as a fact witness. 

Trial Assistance

I traveled out of state for an appearance at trial as a fact witness. Some might ask, “why is a video expert being admitted as a fact witness?” The short of the long is that the judge assigned to the preliminary hearings needed to fully understand how this investigative process would require an expert to complete. He believed the video playback and identification did not require an expert. However, to the forensic community and the trier of fact, a qualified technician or analyst would be responsible for acquiring, handling, and extracting video evidence for courtroom use. The problem was solved; the trial proceeded. 

The direct examination began with explaining to the court precisely what our team did to generate the image and video exhibits. These exhibits were extracted based on a conservative review of the evidence. This was recommended to ensure all instances, good, bad, and ugly to the case, were communicated correctly to the court—this conservative approach to forensic video analysis as an expert witness. 

“If a picture is worth a thousand words, then a video is worth a million.” Plaintiff began cross-examination by showing me images that witnesses captured in person using mobile devices. However, surveillance videos that the defense furnished to the court displayed more information from a more accurate camera perspective because the video, in this case, was of higher probative value. 

This cross-examination was complex for a fact witness, primarily experienced in testifying as an expert. He had to think on his feet and answer questions about the video recordings created over eight weeks. The witnesses’ ability to maintain a calm demeanor and answer complicated questions without the support of forensic methodology can be frustrating. I kept calm and responded to questions to ensure the jury understood the responses.  

Conclusion

Although I couldn’t testify as an expert witness, I testified as a fact witness. Plaintiff challenged the integrity of the eight weeks of video as inadmissible. They argued that this abundance of evidence was submitted past the discovery deadline and, thus, should not be reviewed by the jury. However, had the Primeau Forensics team not been involved in reviewing eight weeks’ worth of video evidence, the Plaintiff’s arguments may have been weighed more heavily by the jury.

The civil defense won the case. The trial judge ruled that the videos were relevant and that the images provided factual information. The judge found that my testimony would also be necessary to understand accurately how this investigation was completed.

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