Don’t Fear New Technology

In the past couple of years, the increased prevalence of first responder body cam and dash cam audio and video has raised new and evolving evidentiary issues when it comes to accident scene photographs used in claims and litigation.

Typically, accident scene photographs—if they are not likely to mislead or confuse the jury—will be admissible. Even if they are graphic, the court may issue a curative instruction and potentially limit their number and how they are used, but it will often allow at least some of the graphic photographs to reach the jury. (See Fed. R.E. 403. See also, Leon v. FedEx Ground Pkg. Sys., 2016 U.S. Dist. LEXIS 30279). The trial court will typically use its discretion to balance the possible unfair prejudice against the prohibitive value, but the courts have found that simply evoking a shocking response, or admitting evidence that is unfavorable to one party, does not constitute undue prejudice under Fed. R.E. 403. Graphic photographs can be relevant for purposes of showing the cause and manner of death, and even on the issue of conscious pain and suffering.

Body cams for responding officers can capture routine information such as positions of the vehicles, resting point, and conditions of vehicles. However, body cams can also capture audio and video of graphic injuries. In addition, body cams can capture statements of witnesses and parties, including excited utterances that may not be captured in detail or with the same level of reliability in a written crash investigation report or subsequent formal statement.

Some emergency medical personnel are also now using body cams. This results not only in more firsthand video of the plaintiff’s injuries, but also firsthand accounts of contemporaneous physical complaints.

There are certainly cases where this information, if it were to reach the jury, would be harmful to the defense and unduly prejudicial. However, it is important to keep an open mind. This new technology often provides the most accurate information, allowing you to honestly evaluate your case. Even if the information obtained is potentially damaging to the defense, it is better to have this knowledge early on, both for purposes of evaluating your case and for conferring with defense counsel regarding the likelihood of keeping at least some of the video or audio from reaching the jury.

Where the information obtained is unfavorable, it can still provide the defense team, including the claims professional, with a time advantage. In cases where liability is significantly contested, the on-scene body cam video, if unfavorable to the defense, is better to have before the case even reaches suit rather than a year into the litigation from an independent eyewitness. Likewise, there is often a delay in obtaining medical records from plaintiff’s counsel prior to filing suit. Review of the responding officer’s and EMT’s video can provide at least a basic understanding of the nature of the plaintiff’s injuries.

In addition, on-scene video and audio could be beneficial to the defendant’s case. Firsthand witness accounts may support the defendant’s version of the accident. Likewise, statements made to responding officers or emergency medical personnel may establish that the plaintiff, in fact, did not voice a complaint about a particular area of injury at the scene of the accident, or that plaintiff’s recollection of her position or surroundings at the time of the accident is flawed. Furthermore, the plaintiff may offer information to first responders relating to pre-existing injuries or medical conditions that may ultimately prove to be invaluable to the defendant.

Pre-litigation requests to the local police department or other investigating authority should now routinely include requests for copies of any audio or video statements as well as body cams. Requests to responding emergency personnel can include a similar request. While transcribed statements are often edited to prevent the release of contact information for witnesses, such information is not easily edited out of body cam video and can aid your pre-litigation investigation at the claims or SIU level.

For claims professionals seeking truth and equity in an industry where fraud and misrepresentation are often cynically viewed as the norm, embracing this technology is more appropriate than fearing it. It brings an unprecedented opportunity to separate fact from fiction.

Knowledge is almost always power. The more reliable information you have at the earliest stage—including how the accident happened, what the jury is likely to see, and the nature and extent of the plaintiff’s damages—the better you will fare.

If the ultimate result of the case is trial, you will have more time to prepare your theory of the case and to address evidentiary issues. If the case should be settled, you will learn this at an earlier stage and have the best information from which to prepare your evaluation. While we confront new and emerging technologies, prior case law and rules of evidence often provide a framework from which to assess the likelihood of admissibility.