How video tape can effect your California personal injury claim

I read an article in the New York Times this week which raised the interesting question about how reliable video tape evidence is in the courtroom. As an Alameda personal injury lawyer, more and more of my cases involve video tape evidence of one type or another. Frequently, in cases where someone has fallen in a grocery store, the falls are captured by video tape. Often car accidents are filmed by roadside cameras or cameras located at nearby business establishments. The films can be problematic because the reality of what happened can be distorted by the camera angle and the speed at which the tape is played and reviewed.

The Times article points out the inherent dangers of playing back video tape in slow motion. A study published in the Proceedings of the National Academy of Sciences, showed that decreasing the speed of the play back increased the possibility that someone’s action was intentional versus a spontaneous reaction. In legal jargon, a slowed down video tends to make the action appear to be more premeditated.

Focus groups were shown a video of an armed robbery and shooting at a grocery store. They were asked to assess whether the shooting was premeditated or not. The video was shown in slow motion to half of the group and at regular speed to the other half. Those who watched it in slow motion felt the shooter had more time to act, and hence more culpability, than those who watched the film at regular speed.

In another test, the focus group was shown the video first at regular speed, and then in slow motion. This somewhat reduced the bias that was caused by seeing the video in slow motion, but over 50 percent of the viewers still felt that the shooter had more time than those who only saw the video at regular speed.

As many Bay Area fans, I watched many of the Warriors playoff games this year (sorry to bring this up for you Warriors fans). You may recall several replays of Dramond Green committing various fouls where he kicked an opposing player in the groin area. The question was whether these contacts were intentional or not. The referees watching the game did not even call a foul in one of the plays involving LeBron James when they were observing it first hand, real time. But when the league reviewed the film after the game, league officials deemed that the action was intentional and Dramond was suspended for a game. It seems that this NBA review was consistent with the findings of the study in the National Academy of Sciences.

In every California civil trial, the jury is given legal instructions at the end of the case on how to evaluate evidence. The instructions cover the differences between direct and circumstantial evidence, the testimony of live witnesses, how to evaluate experts’ opinions, and many other topics related to evaluating evidence. There is only one instruction which pertains to video evidence. The instruction, CACI 5016, says nothing about the potential distortion of evidence which is caused by playing the video in slow motion.

I recently concluded a slip and fall case which occurred at a Savemart grocery store. The fall was partially captured on store cameras. My client had slipped on water, which had dripped onto the floor when a store employee had stocked fish into the refrigerated display cabinet As a result my client sustained a torn medial meniscus which required surgery. The fall probably took a second or two. But there were hours of tape which proceeded and followed the fall. I argued strenuously that the films showed not only that the employees caused the water to drip onto the floor, but that store employees had ample time to clean up, and make the store safe before my client fell. The defense claimed that another customer had been through the area with his cart, and caused the spill just seconds before my client fell. The case was settled favorably for my client, without have to proceed before a jury. But I have to wonder what different inferences a jury would have drawn from viewing the accident video.

In conclusion, video tapes are frequently available from local stores, businesses, people’s cell phone, and other sources. They certainly can be helpful in proving one’s personal injury case. However, as jurors, and as lay people seeing videos on Youtube or elsewhere, we should be cognizant of the biases that may surface when films are shown in slow motion or from distorted angles.

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