Plugged In: Digital photos, video pack legal punch

By Joe Kashi, for the Redoubt Reporter

Just and correct legal determinations are highly dependent upon the clear and accurate presentation of the pertinent facts.

Digital photos and videography can portray a great deal of information in a way that is clear, factually accurate, easily understood, often memorable and usually more persuasive. Unfortunately, it’s also one of the most underutilized forms of evidence.

I’ve been making presentations about using modern technology to other lawyers across the U.S. and Canada since 1989. During that time, I’ve seen a majority of law offices convert to some form of digital technology, particularly imaging. Yet, in my experience, digital photography remains very much poorly utilized. That makes little sense, at least to me, in an era when virtually everyone either carries a digital camera or at least some sort of still photo and video device built into their cell/smartphones.

This week we’ll take a look at some types of digital photo and video evidence. After the holidays, we’ll discuss factors to keep in mind should you ever need to make still photos and videos to protect yourself in the event a legal situation occurs.

If you have any doubt about the persuasiveness of digital imagery, take a look at the U.S. Supreme Court’s opinion in Scott v. Harris, 127 S. Ct. 1769 (2007). In that case, the typically conservative Supreme Court took the highly unusual step of not only reversing the lower court’s findings of fact, based on the Supreme Court’s own viewing of a police car’s dash-mounted video, but also posting that video on the Supreme Court’s own website at http://www.supremecourt.gov/media/media.aspx. This is a really dramatic video of a high-speed police chase and subsequent crash.

Police vehicles now often include dash-mounted video cameras that document potentially criminal situations such as traffic stops, DUI tests and the like. New York City police officers now record investigatory stops to protect themselves against difficult-to-refute accusations of racial bias. More objective evidence cuts both ways, though. Just recall the Rodney King videos that sparked anger at the Los Angeles Police Department among both civil and police groups.

Properly done, still photos and video are not only persuasive but less prone to the problems that routinely degrade eyewitness testimony. With still photos and videos, it’s feasible to go back to definitively determine some factual point that later seems important but which may not have been initially noted.

It’s generally known that eyewitness testimony is often less accurate than commonly believed, due to human perceptual and memory errors. That eyewitness testimony tends to become even less accurate as it’s recalled and repeated over time. Photographs and video do not lose accuracy or data over time, not even when repeatedly reviewed.

Imagery of criminal acts is becoming very common with the proliferation of cellphone cameras and video surveillance cameras. There’s probably no better evidence of an armed robbery, for example, than the accused flashing a gun at a store’s counter clerk in full view of the store’s surveillance camera or of a hit-and-run collision captured on the outdoor video camera of a nearby business. Of course, if on the other side, you’ll certainly want to ensure that you’ve received all data.

Still photos and video are exceptionally useful in civil law situations, particularly in personal injury or other insurance claims, land disputes and other litigation where objectively ascertainable facts are important. One experienced Alaska trial judge suggested that everyone involved in divorce or other domestic relations matters should do a photo and video walk-through of their house before separation.

He believed doing so would eliminate a great deal of disputed fact and save both parties money in the long term. Similarly, should your home be damaged by fire or other casualty, or should a theft occur, you’ll greatly aid any negotiations with your insurance company if you have video or still photos documenting the condition of your home and its contents.

Experienced contractors usually take hundreds to thousands of digital photos in the course of construction, particularly of work that will be later covered, such as foundations, wiring, structural elements inside walls and plumbing. Anyone hiring a contractor should consider doing the same.

Aerial photographs using free Google Earth and Google Street View, or, even better, the official GIS images and data of the Kenai Peninsula Borough, can be very useful when there’s a dispute that involves anything about the Earth’s surface, such as whether a particular road had a bike lane or where a fence line or unplatted road was located in a particular year. The borough’s overhead satellite photos are particularly useful in this regard because the borough has data going back decades, not just the most recent overhead photos.

If you’re involved in an automobile collision, take photos that document where each vehicle came to rest, the location of any debris, damage to all vehicles from all directions, and the road and weather conditions. Be sure to include enough of the surrounding location, intersection and the road lane lines in the photos.

Later, take general collision scene photos in good light and also have someone make videos through your windshield while you drive through the collision scene at a known, constant speed. These videos provide objective information about timing, distances, visibility, etc. Google Earth and Street View photos will also be very valuable in determining what occurred.

These examples merely scratch the surface. Don’t forget digital photos and video if you find yourself in a situation that might involve legal consequences.

  • Around Town: The Kenai Fine Arts Center is currently exhibiting two shows through Christmas, “Emmanuel,” a group show of spiritually inspired art, and the annual kids group show in Gallery Too. This week’s free Fine Art Friday event at the Kenai Fine Arts Center, 816 Cook Ave. in Old Town Kenai, continues the BBC short film series “Civilization,” examining the religiously inspired art of the late Middle Ages.

Local attorney Joe Kashi received his bachelor’s and master’s degrees from MIT and his law degree from Georgetown University. Many of his technology and photography articles can be accessed through his website, http://www.kashilaw.com.

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