Situation:
Many years ago, a relative of mine was involved in a trial in a criminal case, testifying for the state as an expert witness.
The key piece of evidence was a videotape of certain events (which was indisputably of the defendant - that was not in question). My relative reviewed the videotape and testified in court based on what he saw in the videotape. The defendant was found guilty but later agreed to a plea bargain and sentenced to probation. There was also a separate civil case involved.
In cleaning out the person’s files, we found a copy of the videotape. Based on what I read about the trial online, it is clearly a copy of the videotape that was admitted into evidence. Is there any legal consideration surrounding release of this videotape? I don’t mean to YouTube or anything, but I’m just curious if there are any legal ramifications if I were to pass it on privately to other people who are interested in this particular topic for their private viewing. Or should it just be destroyed?
And no, I’m not going to identify the topic or the defendant’s name or any more identifying info so don’t ask
Not enough info. Sorry. There are all sorts of hypotheticals I could imagine that could potentially restrict the use of the videotape. For example, perhaps the expert was provided with the tape under the terms of a protective order that required him to destroy it after the case was over. The ramifications that would flow from that are too complex and too dependent on specific facts to analyze here.
If the entire tape had been played in open court without any seal order in place the evidence is probably not subject to protection but there are all sorts of fact-specific caveats to that. And anyway, no one could give you meaningful legal advice in a forum like this even if you were to provide a lot more facts.
Thanks. The case is over 15 years old; defendant served the probation and has moved on - no reason to believe anything in the case is still active. No gag order as far as I can tell. The videotape was freely talked about by both sides in the trial: defendant did not claim it was a fake. (Defendant is clearly visible and identifies self by name,) it was clearly played in court since some of the jurors’ comments in newspaper articles reference certain things they saw on the videotape. In today’s media world, parts of this videotape would be on the Internet; I have no intention of doing so.
While there may not be any legal ramifications for releasing the tape, if the defendant served his time and paid his debt to society, why release a tape that might dredge everything back up again and cause pain to the victim’s family?
I assume that the tape was in the case file related to the expert’s testimony so clearly the party (prosecution or defense) which gave it to him didn’t ask for it back. It is his or, as seems to be perhaps, his estate’s property. However, as I said above, what purpose would be served in releasing it or giving it to anyone?
PG: You need to have an attorney you can ask these sorts of questions. Really! Why don’t you? Didn’t someone draw up a will for you or something? Or look over a business contract?
This wouldn’t be released anywhere near the victim/family. It would be shared with someone who I know is very interested in this particular topic for their own viewing/edification, not for any kind of public release. This person lives 1000 miles away and is fully trustworthy (meaning it’s not like this person will throw it on YouTube or discuss it publicly).
But you don’t know if the ENTIRE video was played in court; the interesting 45 seconds may have been redacted for privacy reasons. And the relative may have had duties that arose from his serving as an expert to keep the info private, even though anyone who accessed the info from the court record would have no such duty.
Or there may be no privacy interests or duties at stake at all. Who knows. As I said, not enough info.
“I assume that the tape was in the case file related to the expert’s testimony so clearly the party (prosecution or defense) which gave it to him didn’t ask for it back”
Actually it was just in a stack of everyday videotapes (movies, TV shows). My S was going through them labeling them for future use and came across it.
This is helpful; I should consult a lawyer but thought I’d at least throw this out there to smart people!
I think consulting an attorney is a good idea. That way, you can share the specifics in confidentiality and get a response that is appropriate to the situation.
Have you checked Youtube? You’d be surprised how much stuff actually makes it onto Youtube. Especially if there are no confidentiality issues, and it is a matter of public interest. There are lots of people who end up touching any piece of evidence – from copy vendors on up – and so often someone in the chain has the brilliant idea to post the stuff they are not supposed to post. It’s a real problem, actually.
(If you actually find the video on Youtube, you have to tell us (without revealing any more info than the fact that it is on Youtube)).
Since this relative was an expert witness (paid), I assume he was some kind of professional. He may have an obligation to retain records or destroy records within a certain time frame. If you are cleaning out an office, be clear on what the requirements are for retaining or tossing things. I’d not release anything. There may have been a clause in the contract that he wouldn’t release or use any information from his professional services without permission.
The easiest way to get an answer is call the attorney who hired the relative, either the DA or the defense attorney. Ask.
Thanks. Yes, relative was an expert witness; I assume paid. The video is definitely not on YouTube; it is quite graphic and would likely violate YT standards. i will call professionals per all your suggestions. This is really helpful to me to hear your thought processes.
If it is possible to find the judge who had overseen the trial, I would try to contact him/her to pose the question. Or the prosecuting attorney, or the office of the DA if the prosecutor is gone.
My gut feeling from a legal perspective (not in criminal law, however) is that it is evidence in a trial bound by confidentiality of the legal proceeding, and it may be that your relative should not have even had a copy remaining with him/her after the expert testimony was given. I have been out of law school too long to know for sure though.
Which brings up another possibility - contact a local law professor who teaches criminal law and I bet he’d love to pose this question to his class you may have a response in a week.
No, I’m not a lawyer, but it’s clear to me what you want the answer to be–and that you’re pretty sure that’s not the answer you’ll get. Destroy the tape and move on.
I think it is funny that a legal question is posted on cc and the OP wants to restrict answers only to attorneys who should provide legal advice free and without all the facts.
I think it’s fine to pose the question (lawyer here), and no need to be insulting and snarky to the OP! I also don’t feel Ik know enough to opine and I would be wary of sharing evidence from a trial.
Yes, most attorneys I know don’t disclose much outside of trials as a general practice. It’s generally better that way. I am an attorney and would NOT advise disclosing things from a trial absent written consent from the attorney who hired the expert witness and defense counsel. I am very risk adverse.
