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Problems in the Courtroom: “Caught on Tape” A Lawyer’s Viewpoint by Don McKeever

My most memorable experience involving surveillance films came at the conclusion of a personal injury trial.  I represented Barney, who worked for a local sanitation company.  He would stand on the rear of a garbage truck and empty garbage cans into the rear of the truck.  One morning the truck was hit broadside by a car and Barney was thrown from the truck and struck the curb.  He suffered neck and back injuries and was treated in the emergency room of the local hospital.  He was out of work for a couple of weeks and, upon returning, found he was unable to perform his job without significant pain.  Consequently, he remained off work for several months.  During his deposition, Barney testified that there were a number of activities he could not perform, including lifting heavy objects, particularly if it involved lifting above the shoulder.

Subsequently the insurance  company  for the defendant hired an investigator to perform surveillance on Barney and immediately thereafter withdrew all offers of settlement.  The case proceeded to trial and, as rule of civil procedure require, I was shown the videotape before trial. When the video was offered at trial, I objected to the relevance of the film and argued that the video did not depict the pain and discomfort Barney was experiencing when he appeared in the film. The judge overruled my objection and permitted the film to be shown to the jury.

For 30 minutes, the camera followed the activities of a very healthy man diligently working under the hood of a car in the parking lot of an auto parts store.  The limber subject repeatedly squatted down and effortlessly crawled under the car.  He would painlessly jump to his feet and resume bending and stretching under the hood.  After feverishly working on the car for what seemed like days, he finally emerged with the car battery.  He the effortlessly raised it into the air over his head with one hand and lazily strutted into the auto parts store.  As you can imagine, the defense attorney was relishing the moment, having exposed a fraud by catching the lying plaintiff red-handed.  And, of course, the jury was incredulous, having just heard three days of riveting testimony about the plaintiff’s disabilities.

After the film was shown, I proceeded to cross examine the individual who operated the video camera.  He was an enormous man weighing probably 300 pounds, 200 of which were covered with vulgar tattoos.  His unattractiveness was surpassed only by his arrogance.  Setting him up, I asked him questions about the importance of his role in the trial and if he knew how devastating his film could be to the plaintiff’s case.  I then had Barney stand and asked the video operator if he was certain that it was in fact, Barney who was working on the car in the video and carrying the battery into the auto part’s store.  As I expected, my questions were met with adamant absolute, unequivocal answers.  After asking a few more questions to get him inextricably committed that it could be no one on the film other than the Barney, I gave the signal to bring Barney’s younger, almost identical brother into the courtroom to stand behind Barney.  I then directed the attention of Mr. Absolutely Certain to Barney’s younger brother, the star of the surveillance film, and asked if he had filmed this witness instead of Barney.  The operator, who had turned crimson red, looked like a deer caught in the proverbial headlights.

By this time, the defense attorney was going berserk screaming incoherent objections.  The verdict in favor of the plaintiff was substantial and I imagine it was in no small part due to this little episode.  Unfortunately, most surveillance film stories do not have such a happy ending.  To the contrary, most videos that are played at trial present compelling damaging evidence which cannot be easily overcome.  Had the above video actually depicted Barney engaging in those activities, the case would have been lost, and rightfully so.