Smartphone Video: Is Failure to Seize the Device Fatal to Admissibility?

Ideally, when witnesses record a video of an event on their smartphone, they would give their device to the police so that the video could be examined and exported in a forensically sound manner. What are the consequences when that does not occur? Are the police required to seize the smartphone that was used to record relevant video evidence? These and other interesting questions were raised in a recent case from the Court of Appeal in Ireland (People (DPP) v. Walsh [2024] IECA 325).

The Facts

The complainant (C) attended a park in the immediate aftermath of the appellant (A) having been involved in an altercation with C’s brother. C said that A was very aggressive. He shouted at her, then ran up to her and swung a bar at her striking her in the leg and face. C’s 17-year-old relative (R) was present and recorded four seconds of video with her smartphone, which showed A assaulting C with the bar. Within a half hour, C and R attended the police station and told the police what had occurred. The officer asked to have R’s phone but because she was a minor, C did not want R to be involved in the investigation. In the presence of the officer, R sent the video to C’s phone via WhatsApp and then C sent the video to the email address provided by the police officer. C testified that she did not alter the video recording at any time. By the time the voir dire was held to determine the admissibility of the recording, the smartphone that recorded the device was no longer available as it had been damaged.

During the voir dire, the officer who dealt with C stated that she viewed the video on R’s phone and when she said that she would need to seize the phone, C was adamant that R should not be involved. The officer was only four months into her job and did not know that the proper procedure was to seize the phone. Instead, she orchestrated the transmission of the video from R’s phone to C’s phone and then to the officer’s Garda email address. The officer acknowledged that she should have seized the phone. C stated that the four second video was all that was recorded and that the girl heard screaming on the video was R. R’s name was not disclosed, nor did she testify.

Voir Dire Arguments

In the voir dire, the prosecution sought admission of the video recording and cited several arguments in support of their position. First, the evidence was real evidence and highly relevant. Second, questions about whether the video recording had been edited or altered were questions to ask in front of the jury and were questions of weight, not admissibility. Third, only a half hour elapsed from the time of recording until transmission to the police, in the presence of the police. This militated against video tampering. Fourth, even though the officer should have seized the device, she could not have compelled R to do so, nor could she have compelled R to provide a statement because R was a minor and her parents would have to be brought in for that purpose. Thus, the officer’s solution was practical and reasonable. Fifth, the recording had been played for A during his interview, and he confirmed that it showed him striking C. Finally, the prosecution noted that video recordings could be authenticated circumstantially and that the unavailability of the photographer is not fatal to establishing admissibility.

The defence raised several arguments against admission. First, the court did not hear from R, the person who recorded the video and who owned the device it was recorded on. Nor was she identified or made available for cross examination. Second, the officer erred in failing to seize the smartphone. Third, it was the prosecution’s job to prove that the video had not been altered rather than the defence’s role to explore this topic in front of the jury.

Trial Judge Ruling

The trial judge noted that the video recording was real evidence. C and R went to the police right after the assault and the police supervised the transfer of the recording from R’s device to C’s device and then to the police. Of significant importance was the fact that A had been shown the recording during his interview and he admitted that it showed him doing what was shown in the video. The fact that the recording was only four seconds long and therefore did not capture events leading up the assault or its aftermath was a question of weight, not admissibility. As a result, the recording was admissible.

A was ultimately convicted of assault causing harm and was sentenced to a period of imprisonment. He appealed his conviction and cited as a ground of appeal that the trial judge erred in admitting the video evidence.

The Appeal

The appellant argued that there was a serious risk that the events leading up to the recorded assault were recorded but deleted. He further argued that the best version of the recording was that found on the recording device. As a result, the court may not have received the best version of the evidence, nor was there any ability to examine the smartphone for other relevant recordings. For extra measure, A argued that the recording was hearsay evidence.

The prosecution argued that proof of provenance and authenticity need not be absolute and cited People (DPP) v. Hannaway and Others [2020] IECA 38 to support this point:

…inability to present a history of provenance and integrity that is “watertight” in every respect [does not] automatically lead to inadmissibility of the evidence. In some cases, the deficiency might be so serious and fundamental as to warrant exclusion, but in many other cases it may simply go to weight. It all depends on the circumstances of the case and degree and extent of any claimed deficiency.

The prosecution noted that A was merely speculating about missing or altered recordings. Further, had the police not obtained the recording, A would have complained about the failure to acquire to evidence.

The Court of Appeal ruled as follows:

47. We have no hesitation in rejecting this ground of appeal and in stating that in our assessment the trial judge’s approach to the admissibility issue was impeccable and entirely correct. We are satisfied that the recording which the prosecution were seeking to rely upon was real evidence and not hearsay. It was necessary to establish its authenticity and provenance; however, in that regard it was not necessary in the circumstances of the case to have evidence from the person who had, in fact, caused the mobile phone to record (i.e., the complainant’s underage relative). It was sufficient that there was evidence that that person had accompanied the complainant directly from the incident to the Garda station; that the Garda had viewed the original recording on the underage relative’s phone; and that in the Garda’s presence that recording was then transmitted to the complainant’s phone, from which it was then forwarded to the Garda concerned. There was no suggestion that what was actually forwarded to the Garda concerned had been in any way manipulated or interfered with. On the contrary, the appellant accepted that he was captured on the footage and at no point did he suggest that what was to be seen on the recording had not occurred.

48. The defence case in regard to the footage was simply that the entire event had not been captured on the recording, and that there was material missing (in the neutral sense of not being present on the recording) both from before the events actually captured and from after it, which would, if it had been available, have better contextualised what was shown on the recording, and which might have assisted the jury in weighing and assessing the credibility and reliability of the overall evidence in the case, including the complainant’s testimony on the one hand, and the appellant’s account at interview on the other hand; and in assessing whether the prosecution had negatived the appellant’s contention that he had acted in self-defence. Insofar as the prosecution accepts that there may have been material missing from the recording in the neutral sense referred to, that might have been due simply to the recording being commenced late and turned off early by the phone operator (in respect of which, if that were the case, the appellant could have had no complaint relevant to admissibility), or it might have been due to deliberate cropping of a larger recording which it was accepted might have been technically possible. However, there was no evidence tending to suggest that the latter was other than a remote and, in the circumstances of the case, fanciful possibility. The evidence was that the complainant and her underage relative had proceeded straight from the incident to the Garda station. There was no evidence to the contrary, or of any detour. Neither was there evidence of actual knowledge or competence by either the complainant or the child in question as to how to crop, edit or manipulate a recording.

49. We consider that the trial judge had sufficient evidence before him to enable him to be satisfied as to the provenance and authenticity of the recording at least for the purposes presented together in the Garda station, or her actual parents) have been compelled to give such consent. These were practical realities. It seems that the identity of the child who made the recording was, as the trial judge noted, almost certainly known to the defence team before the trial. While the phone is now said to be in a broken state and to be unavailable, there has been no evidence placed before us that the defence had at any stage prior to the trial shown any interest in having it located and made available to them for technical inspection. The possibility of the cropping of the recording on it has merely been floated as a hypothetical, and at no stage has it been grounded in any meaningful engagement with the actual evidence adduced at the appellant’s trial.

The Court of Appeal dismissed the appeal from conviction.

Commentary

The role of counsel is to make arguments on behalf of their client. In this case, the arguments made at trial and on appeal had very little merit. A video recording is not hearsay evidence, rather it is real evidence. Further, while it would be ideal if the police were given the actual device on which the video was recorded, this does not happen very often in practice, nor is it a legal requirement. Usually, the video recording the police receive has been sent to them via upload or has otherwise been exported. Care should be taken by the police, to the extent that they have any control over the process, to receive the best version available. For example, an emailed video may be compressed. There is therefore a risk that the version the police receive is a lesser version of the true original, but this is a question of weight, not admissibility.

Speculation without any rational basis does not make for a strong argument. In this case, the appellant speculated that there had been a longer recording that was edited and that the recording had been altered in some improper way, but there was no evidence to support these propositions. The Court of Appeal correctly categorized these arguments as ‘fanciful’.

Though this case is from Ireland, the soundness of this decision replicates the position in the UK, Canada, and the US. While it would be preferable to have physical access to the device wherein the video was recorded (smartphone, DVR, etc.), that is often not feasible. Nor is it always possible to acquire a forensically sound lossless version of the original. However, provided it can be authenticated, the non-original recording is admissible. This is certainly preferable to having no recording at all.