Camera phone evidence explosion impacts lawsuits, juries and 7th amendment, by David Geer

Contact me at david@geercom.com, via this form or at 440-964-9832 (Fax:440-964-2172).

Voir Dire magazine

Camera phone evidence explosion impacts lawsuits, juries and 7th amendment

By David Geer

"Juries are going to expect people to have pictures of events as they happen. The more technological our society becomes, the more juries expect that we as trial advocates be facilitators of presenting information in the way that they are used to seeing it" - Steven Gerber, attorney.

Evidence of Explosion

In three years, Americans will carry 17 times as many camera phones as there are surveillance cameras across the country today, says Alex Lightman, author of "Brave New Unwired World" (Wiley). As with Portable Video Camera (PVC) evidence, phone images will document police abuses as well as civil disputes.

Countries with an abundance of camera phones have begun widespread community-policing programs. Australia has community policing and neighborhood watch programs based on the phones, says Richard Southard, attorney and guest commentator, Court TV and Fox News Live. In Japan, you can send images to the police department. In England, police use camera phones to sample graffiti for tracking.

If, as expected, U.S. law enforcement picks up on these applications, camera phone evidence will be all the more purposed and presumed. As cases are made, the door will open to a flood of photo evidence.

Abroad, youth were first to adopt camera phones. Consequently, U.S. camera phone evidence is expected to first document incidents involving youth.

Camera Phone Evidence Affects Lawsuits

Phone photo proof will be extremely damning. Jurors will see the damages for themselves.

Cross-examination based on an assumption of opportunity for such evidence will develop, i.e., was the witness carrying a camera phone? "And, if they used the camera regularly, but didn't use it in this instance, why not?" says Steven Gerber, attorney and member of the board of directors, Defense Research Institute (DRI). Cross-examination will also question validity and image doctoring. In such cases, the liabilities of large concerns will cause demand for authenticity experts.

Camera phone evidence will span the breadth of what the eye can see. People may sue based on pictures of inappropriate materials displayed at work. Phone photos could empower employment and workplace injury cases, protecting the interests of either side.

Phone Photos Affect Juries

Juries will be strongly influenced by phone images; they'll begin to wonder if they don't see them in court. "Juries are going to expect people to have pictures of events as they happen. The more technological our society becomes, the more juries expect that we as trial advocates be facilitators of presenting information in the way that they are used to seeing it," says Mr. Gerber.

But juries will want to protect privacy. If claimants cross ethical boundaries in collecting camera phone evidence, "there is a risk that jurors could begin to protect the rights of those whose pictures were surreptitiously taken," says Mr. Gerber.

Phone Evidence Impacts 7th Amendment

Access to trial by jury will accelerate. "[Camera phone images] will free up time and space in the courts because you'll start seeing cases forced to settle because the defense can't get around certain pieces of evidence," says Mr. Southard.

Unfortunately, vigilanteism will be empowered. People, backed by immediate proof and their own good names, will band together to bring quick, cost-effective justice. "We're spending so much on the justice department and the legal system; camera phones are going to shorten the process. The age of the vigilante is around the corner. People are going to say, look, he tried to steal my purse, see, it's on my camera," says Mr. Lightman. Communities will immediately go after culprits.

Picture Perfect

The greatest benefit of camera phone evidence may be the discipline it forces on society. A "collapse of physical violence" is expected. "People will have to find other ways to profit," says Mr. Lightman. The risk of having a camera aimed at you every time you act will be too great; it won't be worth it.

Coming soon! To a Courtroom Near You!

Phone movies complete with audio!

Expect camera phones that take 30-second videos with audio by late 2004. The audio is the real strength of this kind of evidence. You may, for instance, have audio of threats being made. At issue will be whether the sound is clear and whether it sounds like the party's voice (so they can offer up a voice sample), says Richard Southard, a former prosecutor (who never lost at trial in seven years), now in private practice.

"If you're a defense attorney and you're stuck with this you may want to know why the prosecution didn't do a voice match analysis," says Mr. Southard. Depending on the distance between the phone and the incident, the audio quality may be poor, and even detract from the impact of the video.