Mobile phones and their video recording technology are changing the way people tell stories, authenticate memories and report current events. As a new mother, I often use the video feature to capture my son’s most memorable moments. I remember watching cherished childhood films recorded by my parents on their 8mm camera and played back via projector on our living room wall, and like them, I want to be able to show my child just how significant we consider his first laugh, words and steps. Capturing significance is makes recording video unique.
While in law school, I learned that the Best Evidence Rule (FRE 1001 to 1008) and the Hearsay Rule (FRE 801 to 803) were two of the most important Federal Rules of Evidence. Turn on any courtroom drama, and you will find those who play lawyers on TV debating the admission of a statement, book, or letter for trial. In reality, these arguments rarely occur when it comes to video evidence unless there is proof of fraudulent editing. Video evidence, whether from a professional camera or a mobile phone camera, is assumed credible and authentic under the Best Evidence and the Hearsay rules.
The Best Evidence Rule is that secondary evidence, such as a copy or facsimile, will be not admissible if an original document exists. If the original is not unavailable due to destruction or other circumstances indicating unavailability, then a case for acceptance can be argued or the parties may stipulate to the acceptability of a copy or facsimile. The rationale for the best evidence rule comes from its eighteenth century origins where copies were usually made by hand by a clerk (or even a litigant). The best evidence rule was predicated on the assumption that, if the original was not produced, there was a significant chance of error or fraud in relying on such a copy. The present age of digital technology, however, makes the rule more difficult to justify as authentication encryption makes fraud more evident.
Similarly, the Hearsay Rule excludes “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted” (FRE 801). Per Federal Rule of Evidence 801(d)(2)(a), a statement made by a defendant is only admissible as evidence if it incriminates; exculpatory statements made to an investigator are hearsay and therefore may not be admitted as evidence in court, unless the defendant testifies. There are numerous exceptions that attorneys may argue under FRE 803. One such exception is the recorded recollection, which is often used when a video’s admissibility is challenged as hearsay (e.g., a person states one thing on video, but cannot remember that statement in court). FRE 803 (5) allows the following:
A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
The evidence presented may be read into the record, but the actual recording or document may not be given to the jury, except under very narrow circumstances. One such circumstance is when video captured on mobile phones is used by a news or government agency. Then, the recording is said to be self-authenticating under FRE 902.
This becomes important when considering the three critical situations Janey Gordon (2007) highlights as case studies for exploring the influence of the mobile phone on these events. Using the examples of the Chinese Severe Acute Respiratory Syndrome (SARS) outbreak (2003), the Sumatra-Andaman tsunami (December 2004) and the London bombings (July 2005), Gordon examines the extent to which the mobile phone is challenging conventional and official sources of information. I contend, however, that the influence of the mobile phone—particularly as sources of video used in news media and by governments—extends to the legal realm because these events as recorded become a self-authenticating part of the public record.
Gordon’s research found that the effects of mobile phones was less than predicted on the course of events despite the ability to be in rapid communication both aurally and visually with those inside and outside the crisis area (p. 308). Rather than citizen journalists via mobile phones, the authorities involved still gave the primary definitions of events, even if in one case via the mobile phone network. Yet, this report and those of witnesses to the southeast Asia tsunami and London bombings did record visual images on mobile phones that would otherwise not have been available. These actions demonstrate the significance of video recorded on mobile phones for the public record.
Sure, mainstream media acted as gatekeepers by submitting material sent by mobile phone users to the usual editorial processes. Yet, in the law of self-authenticating records, this action arguably legitimizes the mobile phone videos as memorials of an event that cannot be disputed easily. The contrary can be said in the case of SARS, wherein mobile users did exchange information but the Chinese government very effectively manipulated the news agenda to their own ends. The reason they did so was to control what information was entered into the public record.
I argue that these occurrences are quite significant for media law. As digital technology changes the media landscape, so shall the questions before the court of law that influence such common matters as the admissibility of evidence. Hypothetically, for example, if I happen to be video recording my son’s first steps on my mobile phone when a robbery occurs in the background unbeknownst to me or my son until a later viewing. The video captured that during the crime, the victim screamed, “Heather, you’re my sister. Why rob me?” I submit my mobile phone video to a local news or government agency that authenticates and uses it as a part of their regular recording and reporting process. Then, a lawyer may effectively argue and a judge decide that my mobile phone video is admissible in court as evidence that the crime actually occurred and that the victim identified the criminal as her sister, Heather, even if she denies it in court. That is significant when you consider that my testimony evidence of the same without the video would be inadmissible as hearsay.