Giordano discussed many of the practical issues that arise when using video evidence in a case including obtaining the video and getting it into evidence.

“There are cameras all over the city, all over the country, all over the world,” Giordano said. “Some are private and some are government and you can access that video. If you are going to access that video and something occurs, you are going to need to move very quickly. Sometimes it’s too late because you find out about the video after it has already been overwritten.”

Giordano stressed that attorneys should act quickly when seeking videos as most are overwritten within two weeks, some overwritten in as few as three days. He also suggested sending someone to canvas a large area surrounding any incident as cameras from far away can still pick something up, even if it is just video leading up to an incident.

“If you send someone to canvas for video, even if you don’t find video, that investigator should be instructed to do a thorough canvas, make a nice report about where and who they spoke to and if there is no video found you still have that witness testify,” he said. “That still provides a nice persuasive foundation because a jury will realize that you are not going to send someone to try to find video unless that incident occurred as you say it occurred.”

Giordano also discussed something he called “the CSI effect” where juries have come to expect some demonstrative type of evidence, especially video. He said that explaining why there is no video can sometimes be as important as the video itself.

Getting a video and getting it into evidence are two separate things. Giordano explained how having a witness who can corroborate the video works. If there are no witnesses, he explained how attorneys can use the “silent witness method” to enter videos into evidence.

“You are going to focus on the technology, you’re going to focus on the camera and the recording system,” Giordano said, explaining the silent witness method. “You have to have a witness. It can be the manager of the store who can provide an affidavit that can testify: ‘I have this kind of system, this is how the system is set up and I was requested to download the video. This is how I downloaded the video, I looked at the monitor and this is a fair and accurate depiction of the video.’

“If you have a technician who can talk about the extraction process and describe what they did very precisely and issued a report, you’re not going to have a problem and it will go into evidence under the silent witness method of authentication,” Giordano said.

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