2108

There are two choices --

First, the video recording can be used to illustrate the testimony of a witness -- the bystander, or the plaintiff, or Arden. In that case you call the witness whose testimony it will illustrate and ask:

1) Were you present and saw the events? (personal knowledge of the event)

2) Did you review the video recording before trial? (knowledge of the exhibit)

3) Is it a fair and accurate depiction of the events you observed? (authentication).

It is common for attorneys to ask something like this as question 4: I am going to ask you to describe the scene and events in detail. Would it be helpful to making your testimony clear if you could refer to the video to illustrate what you are saying? The reason is to avoid a Rule 403 objection that the video is serving no relevant purpose

Second, the video can be substantive evidence on its own. It may record events that no one else saw. This is known as the “silent witness” rule. The foundation is similar, but no witness can truthfully say it accurately depicts something it recorded but the witness did not see. It goes like this:

1) Were you present and saw the events? (personal knowledge of the event)
2) Did you review the video recording before trial? (knowledge of the exhibit)
3) Is it a fair and accurate depiction of the events you observed? (authentication).
4) Do you recognize the truck and location?
5) Can you verify that it is depicting events that happened outside the courthouse on September 25, 2015, at about 1:15?

Questions? Email tanford@indiana.edu and refer to 2108.

END OF CLASS