We live in a visual age. Thanks to modern technology we can all carry around small video recording devices at all times. And in a culture where people now routinely photograph and share their restaurant meals with the rest of the world, it stands to reason we expect to see photos and video evidence employed as evidence in serious criminal cases.
Rule 403 and “Unfair Prejudice” to Criminal Defendants
Now, you might just assume that visual evidence is automatically admissible in a criminal trial. After all, what better evidence could there be than a photograph or video recording? But all evidence is subject to certain basic rules under Texas law, regardless of the medium or source.
The reality of the criminal justice system is that juries are not exposed to all of the available evidence in a case. The judge is required to screen all evidence upfront to ensure what it is admitted–i.e., seen by the jury–will actually be useful in resolving any factual disputes. Just as important, the judge must ensure the evidence itself is credible and was not obtained by illegal or improper means.
One of the key provisions of the Texas Rules of Evidence (Rule 403) is that a judge may “exclude relevant evidence” if its potential usefulness to the jury is “substantially outweighed” by one or more of the following risks:
- unfair prejudice;
- confusing the issues;
- misleading the jury;
- undue delay; or
- presenting cumulative evidence.
The first risk listed–unfair prejudice–is one often raised by defense attorneys in seeking to exclude photographic or video evidence. As we all know, seeing something produces a much more visceral reaction that hearing about the same thing.
For example, imagine a witness testifies about the night she saw the defendant shoot and kill the victim. This testimony is fairly compelling on its own. But now suppose the prosecutor introduces a video tape, say from a security camera, of the crime. The latter is far more likely to sway the jury, especially since eyewitness testimony tends to be seen as less reliable than video evidence.
But using video to manipulate a jury’s emotions can also cross the line into unfair prejudice. Consider this 2002 decision from the Texas Court of Criminal Appeals. A 16-year-old defendant was tried and found guilty of murder. During the sentencing phase of the trial, the victim’s parents presented a compilation of photographs that was displayed at their son’s funeral. The prosecutor moved to admit these photographs as evidence, which the judge admitted over the defense attorney’s objection.
What the jury actually saw was later described by the Court of Criminal Appeals as “an extraordinarily moving tribute” to the victim’s life composed of “approximately 140 still photographs” accompanied by music including Celine Dion’s famous song, “My Heart Will Go On,” from the 1997 motion picture Titanic.
The jury ultimately sentenced the defendant to 35 years in prison. The defendant was given a new sentencing hearing, however, after the Court of Criminal Appeals determined it was a legal error to admit the photographic montage at trial. Although “victim impact evidence” is admissible during the punishment stage of a Texas criminal trial, the Court nevertheless said such evidence “may become unfairly prejudicial through sheer volume.” And in any event, the trial judge is supposed to review the evidence for probative value before showing it to the jury, which did not happen in this case.
Ensuring Police & Prosecutors Only Use Reliable Evidence
Beyond the issues of relevance and possible prejudicial effect, video and photograph evidence must also be reliable. In other words, the evidence itself must be properly authenticated before it is admitted. Although you often hear the phrase, “The camera doesn’t lie,” the truth is that it is far too easy nowadays to manipulate visual images and recordings. Indeed, even a non-manipulated image may be skewed simply by the angle at which it was taken or a lack of proper lighting.
With respect to video evidence, it is critical that the prosecution prove all of the steps it took to preserve and authenticate an image or video recording. This may include calling expert witnesses to testify about the equipment and procedures used, demonstrating the “chain of custody” was followed, and certifying the accuracy of any reproductions made of the images.
Contact Our Criminal Lawyers in Collin County if You Need Help Today
In short, everyone involved in the Texas criminal justice system must take every precaution to ensure that only reliable, credible, and admissible visual evidence is employed against a defendant accused of a crime. But you cannot simply rely on prosecutors and judges to do the right thing. If you are accused of a crime and need an experienced Collin County criminal defense lawyer to help protect your rights, contact Rosenthal & Wadas, PLLC, today.