Question for the Aaron Hernandez Prosecutor - How will you enter the surveilance
video from the Aaron Hernadez's home into evidence? I know you want
to use the video from Hernandez's house, shortly after he allegedly
shot Odin Lloyd. I suspect it will show Hernandez to be in the area a
short time after the shooting, gun in hand. But I think you have some
challenges to get the video into evidence.
As an aside, I am not a Massachusetts lawyer. I don't know the rules
of evidence in Massachusetts, but I assume they are general similar to
what I am used to.
By all accounts this video is from Hernandez's home. It is his camera
system. As far as we know he owns and operates it. We are unaware of any
other people nearby when the video is taken, as they don't appear
in any of the frames that have been released at this point.
Generally, evidence to be introduced must be proven to be reliable. Video
evidence is normally admissible, but only if proof shows the video is
actually reliable. It is the burden of the party offering the evidence
to show reliability. In New York the buzzwords are "reliable authentication
and foundation." See 93 NY2d 80, decided by New Yorks highest court in 1999.
The determination of reliable authentication of a video is a judgment call
made by the judge at the time of trial. Proof can be in the form of people
who actually witnesses an event or operator/installer/maintainer. The
proof should show:
- that camera was properly installed and working at the time of the recording
- the camera accurately captured the relevant event
- the method that videos are stored and recorded
- the video has not been changed or manipulated
- a showing that the "chain of custody" of the video has not been
broken (Chain of custody refers to the evidence being kept in a safe place,
so it could not be altered)
- the actual video used in court is a true and accurate copy of the original
If you look at the rules, I am curious about how the prosecution will authenticate
the video of Aaron Hernandez from his own surveillance system. Presumably,
he is the one that knows how the camera is maintained and the data stored.
He certainly has the ultimate control over the camera and video collected.
Hernandez can not be forced to testify at his own trial and cannot be
forced to authenticate the evidence against himself. I don't know
who else could give appropriate evidence of authentication.
There are also realistic challenges to the accuracy of the content. Reports
are suggesting that portions of the video are known to have been changed
or destroyed, which affects the reliability of the video as a whole. It
seems difficult to show that the video is a fair recording of an event
when a portion has been taken out.
In addition, while there has likely been a proper chain of custody of the
video since it has been taken by police. However, there was a period of
time when it could have been changed. I think the prosecution would have
to show who had access to the location where the video was stored between
the time when the video was actually taken and when it was recovered by police.
Normally video used at trial comes from a commercial location, or a witness
or victim. This is not the normal security footage from the local Wal-Mart,
where some ex-marine intel guy has a room that looks like flight control
recording every move in the store. There is little doubt that from when
the event was recorded until it was secured, people could have had access
to it and therefore changed the reliability of the video.
The prosecutor has two potential ways around the problem. First, there
is someone that can say "I was there and that video is a fair and
accurate recording of what actually happened." or, they find the
guy who actually installed the camera, call him as a witness, get an expert
from the camera company, have him explain how the thing works, how you
know its working and explain how you know the video presented to the court
could not have been changed (if that is possible to say). Then someone
would have to testify how they know the video was from a particular date
time and place. Finally they would have to reliably identify Hernandez
as the man in the video.
I am not saying it can't be done. I am just saying I want to know how
they plan on doing it here.
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