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The Use of Amateur Videotapes As Evidence in Criminal Prosecutions: Citizen Empowerment Or Little Brother's New Silver Platter, 15 Hastings Comm

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The Use of Amateur Videotapes As Evidence in Criminal Prosecutions: Citizen Empowerment Or Little Brother's New Silver Platter, 15 Hastings Comm Hastings Communications and Entertainment Law Journal Volume 15 | Number 3 Article 8 1-1-1993 The seU of Amateur Videotapes as Evidence in Criminal Prosecutions: Citizen Empowerment or Little rB other's New Silver Platter Nicholas R. Mack Follow this and additional works at: https://repository.uchastings.edu/ hastings_comm_ent_law_journal Part of the Communications Law Commons, Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Nicholas R. Mack, The Use of Amateur Videotapes as Evidence in Criminal Prosecutions: Citizen Empowerment or Little Brother's New Silver Platter, 15 Hastings Comm. & Ent. L.J. 797 (1993). Available at: https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol15/iss3/8 This Note is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Communications and Entertainment Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. The Use of Amateur Videotapes as Evidence in Criminal Prosecutions: Citizen Empowerment or Little Brother's New Silver Platter? by NICHOLAS R. MACK* Table of Contents I. Background .............................................. 799 A. The Home Movie Camera ............................ 799 B. The Camcorder ....................................... 799 C. Using Videotape as Evidence .......................... 801 II. Recent Explosion of Cases ................................ 802 A. The Rodney King Case ............................... 802 B. Before King: Other Amateur Videos .................. 807 C. The Future for Camcorders ........................... 810 III. Case Law and Statutory Controls ......................... 811 A . A uthentication ....................................... 812 B. R elevance ............................................ 813 C. Probative Value v. Potential Prejudice ................. 814 D. Videotape's Strengths ................................. 815 E. Videotape's Limitations ............................... 816 IV. Constitutional Issues-Fourth and Fourteenth A m endm ents ............................................. 818 V. A Modem Approach: Commonwealth v. Kean ............. 820 VI. Suggestions for the Future ................................ 825 V II. Conclusion ............................................... 827 * B.A., American Government, 1990, Georgetown University, College of Arts and Sci- ences; J.D. 1993, University of California, Hastings College of the Law. HASTINGS COMM,/ENT L.J. [Vol. 15:797 Introduction The rapid pace of technological development in the twentieth cen- tury has made modern American society the most fluid and dynamic in human history. This extends to our system of criminal law, which has experienced radical technical changes over the past eighty years. Innova- tions such as computer databases, DNA fingerprinting, electronic sur- veillance, and polygraphs have become more accepted and widely-used in our nation's law enforcement community. These technologies can be ex- pensive and complicated, remaining outside the reach and comprehen- sion of average citizens. Despite the advancement of law enforcement capabilities in this cen- tury, crime remains a fixture of daily life. Citizens grapple with their inability to reduce criminal activity within their communities without resorting to dangerous and illegal acts of vigilantism. Technology, how- ever, may provide a powerful new weapon for private citizens who want to fight crime without risking their lives or their freedom. Citizens can now expand their traditional role as witnesses through a uniquely mod- ern example of home electronics-the video camera. This Note examines the rising popularity of the hand-held video camera/recorder (the camcorder), which has become increasingly avail- able to consumers with moderate incomes. This Note focuses on recent, well-publicized accounts of private citizens using their video cameras to record criminal activity. It discusses the impact and effectiveness of this novel type of evidence, as well as its inherent limitations, in light of events such as the recorded beating of Rodney King by members of the Los Angeles Police Department (L.A.P.D.). An examination of the relevant statutes and case law provides the background for this Note's conclusion that use of camcorders will revo- lutionize popular participation in fighting crime, but may pose significant dangers to individuals' privacy rights. The same attributes that make amateur videotape so exciting also make it potentially intrusive. Few statutory controls exist, as technology outpaces American law. Current case law indicates that private citizens, armed with camcorders, may dis- regard privacy rights when videotaping evidence. They may turn their tapes over to prosecuting authorities. This leads to a new "silver plat- ter," allowing prosecutors to admit evidence obtained despite constitu- tional abuses. Lawmakers around the country should consider regulating this flourishing body of evidence, perhaps by extending wire- tapping prohibitions to include visual images, to protect the constitu- tional rights of citizens. 1993] AMATEUR VIDEOTAPES AS CRIMINAL EVIDENCE I Background A. The Home Movie Camera For years, home movies have been a part of American culture. Grainy, unsteady, and soundless, eight millimeter home movie cameras and their kin have recorded thousands of weddings and graduations, summer picnics, and homecomings. However popular eight millimeter home movie cameras have been, they are poorly suited as a medium for spontaneously capturing evidence. Due to the expense of purchasing the stock and developing exposed footage, amateur photographers are un- likely to shoot eight millimeter film randomly.' Eight millimeter film spools have only a few precious minutes of film and are not reusable, because they are developed like still photographic film.2 Most commer- cial eight millimeter film cannot capture poorly-lit images, because spe- cific A.S.A. (light sensitivity) ratings require a relatively narrow range of light intensity for the film to capture a clear image.3 The combination of recurring expenses and uncompromising equip- ment has meant that amateur camera operators of the past successfully recorded mostly anticipated events. However, some amateurs have still managed to capture the unforeseen. Abraham Zapruder, perhaps the most famous amateur photographer to capture evidence of a criminal act, intended to film a parade. Instead, he stood by President John F. Kennedy's passing motorcade in Dallas on November 22, 1963, and filmed President Kennedy's assassination with his eight millimeter cam- era.4 Although serious questions about this event remain unanswered, Zapruder's film has helped provide some clues about the murder of a President. B. The Camcorder During the last ten years the successor to the home movie camera, the video camera, has appeared on the consumer electronics market. Though originally bulky and expensive, the video camera has become compact, efficient, and affordable to the public. When combined with a miniaturized video tape recorder, the lightweight, easily operated "camcorder" can record up to six hours on reusable videotape. 1. Video Comes to Home Movies, Bus. WK., Oct. 27, 1980, at 222. 2. Janet Kealy, Will Videotape Systems Replace Home Movies?, N.Y. TIMES, July 12, 1981, at B28. 3. Id. 4. Melinda Beck et al., Video Vigilantes, NEWSWEEK, July 22, 1991, at 42, 43. HASTINGS COMM/ENT L.J. [Vol. 15:797 Today's camcorders generally weigh under two pounds, have built- in telephoto lenses,5 and can capture images without extra lighting. Sales statistics for camcorders indicate their rising public availability and pop- ularity. In 1985, approximately 517,000 units were sold; this figure jumped to 1.9 million in the first nine months of 1990, and sales for 1991 were expected to reach 3.25 million.6 Estimates from the Electronic In- dustries Association indicate that eight percent of all American homes in 1989 contained a camcorder.7 In recent years, the camcorder has benefitted from technological ad- vances in miniaturization and light sensitivity, getting smaller and more able to record dimly-lit scenes.8 The VHS camcorder, once the industry standard, now faces stiff competition from smaller formats, such as VHS- C and Video 8. These newer models can weigh as little as two pounds and can record up to two hours at the fastest (highest quality) tape speed setting, and even longer at slower speeds. Almost all camcorders have built-in telephoto lenses capable of magnification ratios of up to 8:1. 9 The newest models feature auto-focus lenses and high speed shutters, as well as digital image stabilization, a new option that allows a camcorder's computer to adjust for unintended camera movement. 1 More significantly, prices have dropped rapidly, a trend aided by the current recession's price wars. While a basic camcorder may once have cost as much as $2000, current sale prices have dipped as low as $650.11 Affordable prices will increase yearly sales. Global trends indicate that consumers increasingly seek the advan- tages of camcorders over home movie cameras because of camcorders' superior features: ease of use, increased filming time per cassette, re-usa- ble tape, and better lenses, as well as "on-board" features such as titles and chronometers, auto-focus, higher shutter speeds for sharper action shots, quieter operation, instant playback
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