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Is Video or Audio Tape Allowed As Evidence?
Yes. The party submitting the evidence must provide the equipment to play the taped material at the hearing.
The party must also submit the tape(s) as part of the record while the appeal is pending. The material will be marked as an exhibit and will be kept with the hearing file. See When do I get my exhibits back?
Accuracy of reproduction is always important when pictorial evidence, such as a videotape, is presented at a hearing. The party offering the videographic evidence must establish that the pertinent parts of the videotape are a reasonably accurate representation of the subject pictured. The level of proof necessary to satisfy this general foundation requirement depends on the circumstances under which the tape was prepared and the reason it is offered at the hearing.
- Where the tape is used as a representation of a live witness’ testimony about what he or she actually observed ("illustrative" or "demonstrative" evidence)
Illustrative evidence may be authenticated by a witness (not necessarily the videographer) who testifies that he or she knows the scene or series of events depicted, and that the tape is a fair and accurate representation of the scene.
- Where the tape is offered despite the fact that no witness actually viewed the events portrayed ("substantive" or "real" evidence)
An example of this category would be a videotape from an unmanned surveillance camera. The videotape in this case may be authenticated based upon reliance of the basic principles of videography, strengthened by assurances that the equipment used and procedures followed were proper. This may include testimony about how the unmanned video camera is placed, how the tape was handled from the time of its removal from the machine ("chain of custody"), internal indicators of time and date, and what the background scenery in the videotape portrays.