American Judges Association


Date of this Version



Court Review, Volume 46, Issue 3, 102-109


Copyright © 2010 American Judges Association. Used by permission.


Evidence obtained by remote-electronic traffic devices is taking on increasing importance as evidenced by the struggle over restrictions on the devices as well as the Supreme Court’s recent unusual step of linking to a video featuring footage from a police officer chasing after a speeding driver. As law-enforcement officials rely more and more on this type of evidence to issue citations and defend against criminal proceedings, courts must grapple with the admissibility of photographic and video evidence obtained from red-light cameras, speeding cameras, and black boxes or cameras on a police car.

This article focuses on the rationales of evidence exclusion and notes that as an intrinsic rule, or a rule focused on the pursuit of truth, when determining whether to admit the evidence one must consider the three foundational factors of (1) materiality and relevance, (2) authenticity, and (3) competence. On balance, in civil cases, courts should almost always admit the evidence unless it is clear that it is fabricated or flawed. They should also follow the approaches of caselaw and err on the side of admitting the evidence but allow the defendant to argue issues as to authenticity when determining the weight of the evidence. However, the balance changes in criminal cases, which usually involve a jury and therefore also implicate jury risks. In these circumstances, courts should still almost always admit the evidence, but they should recognize the potential prejudice of videotaped evidence in particular and take steps to mitigate it, such as reviewing the evidence early in the proceeding to make sure the evidence is not especially prejudicial. In the special case of summary judgment or other instances where the court takes the decision out of the hands of the jury, the court should be especially careful to preserve legitimacy because juries serve important goals. More specifically, courts should recognize the differing viewpoints of the parties as well as the viewpoints that the evidence might elicit in jurors, particularly if the evidence is in the form of a video. Courts should also avoid a sensorial jurisprudence which uses language that hints the judges themselves have fallen prey to the biasing effects of the evidence. Both of these steps will help the court retain legitimacy and therefore give the court a way to admit the evidence without placing undue import on it.