Amateur video shot from a cell phone can be important evidence of a variety of different crimes: assault, property crimes, drug crimes and even homicide. But you may not always recover the video from a suspect or victim. If it comes from a witness, you need to take a few things into account before asking them to hand their phone over.
1. Can you “collect” a phone video by simply watching it?
In New York City, police collected bystanders' cell phones that contained videos taken of the August Times Square confrontation with, and fatal shooting of, Darrius Kennedy. According to the New York Times:
After (bus ticket agent Edgar Delgado) sent his video to news media outlets, including NBC and ABC, right after the shooting, he said, a detective asked to see his phone, and it was taken to a nearby police vehicle.
“I could see them watching the video inside the truck,” Mr. Delgado said, adding that the police had him wait for several hours at the crime scene.
Is it enough to watch the video and document what you see? Probably not. Picture resolution may not be optimal on a small screen, so the video (or the entire phone) will require analysis by trained professionals. Also, you may not have a suspect in custody, and you may need an image from the video to help identify the wanted subject. Once you apprehend a suspect, you may need that video evidence for trial.
Could you ask the civilian who took the video to email it to you, or could you download it from a video sharing site like YouTube or Vimeo (assuming it was shared there)? Depending on the crime’s severity, think again:
2. Can you prove that video was unaltered?
With digital evidence, authentication is critical because it can be quite easy to manipulate. Can you be sure that the images you’re viewing on a victim’s phone at the ER weren’t downloaded a few hours ago in a bid to get a rival arrested? That a loved one didn’t alter them before uploading in order to make injuries stand out more?
Granted, it would be hard for anyone to alter a video in a situation like the Kennedy shooting. But that’s not the only situation you’re likely to find cell phone evidence in. You might be asked to review a video of an assault that happened days or weeks ago. The phone and its images may have passed through multiple hands before yours -- the equivalent of civilians trampling all over a crime scene before you’ve had a chance to cordon it off and preserve its evidence.
Whether on the phone or online, you can validate the phone’s evidence through corroboration, but this may not carry as much weight with a jury if a defense attorney casts doubt on its authenticity.
Simply downloading a video from the internet or even email isn’t the same as preserving the original recording of an incident. It may be impossible to determine if the video was altered before it was uploaded. However, a trained forensic examiner’s examination of cell phone data can be helpful in providing information about when the video was created and if it has been modified.
3. Is your testimony good enough on the stand?
Are you prepared to talk about digital evidence, how it’s stored, and how that storage differs from phone to phone? Do you have a sufficient understanding of how the digital evidence collection tools you use work, and are you prepared to testify about it?
4. What if it's a video of a sex assault on a minor? How do you preserve the video, but still wipe it from the witness' phone so they're not in possession of child pornography?
In Hightstown (New Jersey) last August, a witness to a sex assault on a 15-year-old boy filmed the incident on his cell phone, then dialed 911 and handed the phone to police to record the evidence.
So what did police do? The article doesn't say. But it should be plain that you can’t note what you saw in a report and give the phone back without erasing the contraband video. Simply saving a copy to a computer is, again, like picking up a casing at a crime scene without bagging and tagging it (not to mention that you’ve now contaminated another computer with the contraband video). What do you do?
You can seize and keep the phone, though this won’t sit well with the civilian who owns the phone and likely depends on it. The best alternative: carefully documenting each action, you need to perform a forensic collection of the phone’s data. Only after obtaining the evidence should you feel comfortable erasing the contraband video and giving the phone back to the witness.
5. How do you preserve video evidence without also collecting civilians’ private data?
OK, so we've established that a properly forensic collection is needed. Can you pick and choose what data you obtain?
You can, but only to a point. With most mobile forensic extraction tools, you can obtain a certain type of data -- say, video -- and not get other data, but you can’t pick and choose which videos or images or text messages to collect. Once the relevant data is extracted, you can (and should) pick which ones show up in your report.
It’s important to remember that the forensic collection actually protects a civilian’s private information. Your scrolling through their device is no less intrusive than the forensic collection, and carries with it additional liability if you happen to erase something important.
6. What if you find evidence of other criminal activity?
It happens a lot: you’re looking for evidence of drug dealing but find child pornography instead (or in addition to). What do you do?
It depends on the circumstances of your search. With consent, a search incident to arrest in many (but not all) states, exigent circumstances, or plain view, your actions will likely be covered. However, if you have a search warrant for one type of crime but find evidence of another, it’s often considered a best practice to stop immediately until you can get another warrant.
7. How many copies or angles of video do you need?
Conceivably you need as many angles as you can get. One person’s perspective may provide context that another’s couldn’t, simply because of how they were positioned while filming. Bystanders walk in front of cameras, image quality can differ.
Even so, organizing multiple videos can be challenging. But while simply viewing the videos and documenting what you see may be more convenient, it still can’t be considered a full evidentiary collection.
8. What if it's another BART situation?
Bystander video of any potential police misconduct has to be handled delicately. In most states it’s a citizen’s right to photograph and record police interactions with civilians, so unless you have probable cause to believe the phone contains evidence of a crime, seizing their phones without consent is illegal.
Yet, cell phone video was critical in the case against Johannes Mehserle, who was convicted only of involuntary manslaughter after cell phone videos backed up his account of events. If you have PC, seize the phone, preserve it, and get a warrant to search it later -- especially if it’s possible a police officer committed a crime.
9. Are there other forms of evidence you can use?
You may not need civilians’ cell phone videos if you can collect corroborative evidence from business or public surveillance cameras. Make sure you have access to a professional who can properly recover and analyze this kind of evidence.
Forensic collection of cell phone evidence is a matter of training, and it can be challenging to train lots of people in an agency to this task. However, lawyers and judges are becoming more educated on digital evidence. Whether you’re getting data from a suspect, victim or witness, have the right policies and standard operating procedures in place; train as many people as needed to support those procedures; and stay in touch with your prosecutor on the latest legal precedents.
