The Evidence Rule – The Best Alternative When Video Goes Missing

The Evidence Rule - Surveillance Investigations

For those who are in the video surveillance investigations business, it pays to be aware of the rules on downloading videos and using it as evidence. Because of the presence of surveillance systems, there will be a lot of obstacles that you’re going to go through before reaching a definite conclusion.

When you are watching a video to collect real evidence, it’s essential that you continuously monitor the real-time feed. You should also need to pay attention as you download the video. If things go wrong and your technology fails to work, you have to compromise and show evidence using legal alternative methods.

When you have no video evidence to introduce, it can be a problem. However, there’s a thing we call the ‘evidence rule’ that can help you. The evidence rule consists of an overview of the regulations to be applied when you fail to introduce a video as evidence.


Saving Your Evidence When Video Is Unavailable

We’ve all gone through this depressing problem. You successfully download the entire video content, and – poof! It’s gone, and you can no longer have access to it. It can also be in a scenario where you were able to watch the video on your monitor, but for some reason, you can no longer download it.

Both of these situations are frustrating, to say the least, but they are not going to kill the deal. If you are aware of the legal repercussions, there will still be chances of you salvaging your case, all while impressing your client along the way.

At the Detective Services Australia, our private investigators have both the knowledge and experience to counter any accidental loss of evidence during the video extraction process. We also view videos real-time, all while downloading it – or the relevant events to the case – for security measures.

If the video recorder does not feature a monitor attached to it, you can use your own monitor as an alternative during the extraction period so you can still watch it while it downloads. We not only do this for obvious reasons, but also because of the evidence rules under which lawyers operate.


The Evidence Rule & How It Works

A lot of courts nowadays can apply the “evidence rule” to their video recordings. The set of rules in this list mainly requires the original video be introduced as a piece of evidence – that is unless the original copy was lost and there’s a reasonable explanation for why it is missing t in the first place.


When a video recording has been lost, or when the private investigator can view the video on their monitor yet is unable to execute the video download, lawyers need to extract the investigator’s testimony about what they have observed on their monitor. Frequently, Judges are hesitant to grant raw testimonial descriptions of a missing video, stating that these types of statements violate the evidence rule.

An exception is when the video has been lost, yet not by the group trying to use the description of it. Usually, the court would watch the recording to use it as evidence. But if the jury determines that the verbal description stated by the investigator of the lost video is reliably accurate, the judge may allow their statement as testimony, approving it as legit evidence.  

Because of this, it is good practice to watch the video recording while taking down notes on important observations.


Live Feed Video and Witness Statements

The evidence rule can also apply to live videos that are not recorded. There will be times where you will encounter a video that is not recorded and will be gone as soon as it’s over (e.g., Facebook live, Instagram stories). In these cases, the investigator needs to provide an accurate description of what the witness has observed and, if attainable, get an honest statement. Do this, and there will be a good chance of the witness’s testimony getting accepted even though the video was not recorded.


Be Prepared for the Inevitable

There will be times when your video recorder will fail you, and you will not be able to come up with substantial evidence to support your case. To keep your hopes alive, you need to have alternative options at your disposal. Always make sure that you can reach out to your witness by having their contact information. You should also know that some courts do not apply the evidence rule. This is why getting to know the court you are filing your case with is of utmost importance. We can’t be sure if whether or not our video recordings will work, so being prepared and ready with detailed notes will also be beneficial.

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