Let’s say that a coach (patently illegally) installs a hidden camera in a women’s locker room. A woman claims that on Friday, December 15, 2023, at 4:30 pm, Coach sexually assaulted her in the women’s locker room. “An no!” says Coach. “I have proof right here: the video records on my hidden camera from that day show that nothing out of the ordinary happened in the women’s locker room that afternoon.”
Obviously Coach is going to hang (so to speak) for the illegal camera, once he owns up to it, but is the illegally-obtained defense something that would stand up in court?
Sure. He’ll have to prove chain of custody, but it’s probably hard to deny the validity of that videotape. But more than that the prosecution shouldn’t bring charges when they have evidence the sexual assault didn’t occur. This isn’t a case of the police illegally obtaining evidence which could be grounds to exclude the evidence. The courts don’t want to exclude exculpatory evidence.
Yeah I realized as I was writing the post that this case would be unlikely to make it to a court. Unless, that is, the prosecutor rejected the illegal videotape on the grounds that it wasn’t a defense. That was the heart of my question – whether or not a prosecutor could use the illegal tape as a positive defense against the sexual assault allegation.
The prosecutor knows coach didn’t do the crime. It’s on video. Whether or not the evidence of his innocence is allowed in open court the prosecutor can not legally knowingly prosecute an innocent man. It’s not like the existence of the video is a secret. The coach knows it exists. Even if you think every prosecutor is evil this would be easily against his own interest.
The other issue is almost all precedent involving the exclusionary rule are for police conduct or third parties acting as an agent of the police. Most of your constitutional protections are against government overreach not the actions of private citizen. The criminal code is for that.
I don’t know any caselaw that covers this exact circumstance. I do know of caselaw that states if a private citizen conducts a search and contacts the police it doesn’t mean the police are exempt from having to get a search warrant to further the investigation.
Since the innocence of the coach would keep him from being prosecuted for the assault there may be a different L&O:SVU plot that asks the question. Coach sets up a camera in the locker room. The video captures a murder and shows the murderer. The coach is a pervert but has a code. He brings the video to Olivia Benson knowing that he will get in trouble for the camera but thinks it’s more important to catch the killer. Is the tape admissible? I’m thinking yes. There is an illegal act but the video of the murder is not a crime. The coach wasn’t acting as an agent of the police when he placed the camera.
I assume nothing would change if the coach happened to be an off-duty police officer? If none of his actions were part of his official police duties, the issues would be the same as if he were a private citizen?
How much do we trust the timestamps on this recording? Sure, the coach has a video that shows a stretch of time when nothing happened in the locker room… but is that the same stretch of time during which the assault was alleged to have occurred? After all, the recording was definitely made by the coach, and if he were to commit assault, he’d know it was there, and know in advance that he’d need a defense, and it’s really easy to change the time on a recording device one has full control over. And if there’s doubt about that, the mere existence of the recording (which the defense, not the prosecution, entered into evidence) could surely be construed as evidence that the coach is the sort of person who would commit sexual assault.
In Florida, it’s illegal to secretly record somebody without their knowledge. But there are frequently situations where somebody might record a phone call where another person confesses (or commits) some heinous crime: maybe they threaten to kill someone, or acknowledge a sexual assault (both real life examples).
In those cases, Law enforcement and the prosecutors are going to go after the person who did those more serious crimes, and aren’t likely going to prosecute the person who secretly made the recording.
In their world, that’s called discretion.
(So, to relate to the OP, if the guy was secretly recording the locker room and caught somebody burglarizing the place, they might use the video, and then tell the guy to take the cameras down, but maybe wouldn’t prosecute him).
Though the preponderance of evidence would be on the prosecution to prove it had been tampered with. Though presumably (as others have said) if wouldn’t even get to court if there wasn’t some evidence the video had been tampered with or was otherwise unreliable
Though that goes the other way. In this circumstance where someone, the police and DA believe has a committed a serious crime, “gets away with it” by publicly admitting to a less serious crime. Then they would use their discretion to prosecute him with every possible offense related to the secret video recording.
This would also depend on what was handed over. If it was all the video taken by the secret camera with whole day in question (and the equipment it was taken with and the PC it was recorded on), you could pretty easily show (by talking to the people in the video, not that they would be, presumably very pleased to learn they were in the video and it was being watched by the DA and defense team*) that it was recorded when the accused said it was.
On the other hand if he just hand over a 5 minute clip of an empty locker room with a timestamp that could be faked by anyone with an understanding of video metadata it would be much less trustworthy
would there be anything those people (who had been secretly recorded in the nude) could do stop that video getting entered in the public record? Would there even be a way for them to get it blurred?
It would be more important to have the actual device with the original digital so that the timing and authenticity of the digital recording could be forensically verified, regardless of what it contained. If they are just handing over an edited clip on a thumb drive, that could be anything.
Depends on what you mean by public record. The defense has a right to the full unaltered video. A jury will need to watch it unaltered if it’s used as evidence. The public as a whole does not have an absolute right to view it. The public right is measured against the rights of the individual. A judge would make the determination if someone fights to see the video.
Body camera videos were still relatively new by the time I retired this year. Had them about a year or so. My state’s open public record law states that the public can request to see any body camera footage. Routinely things are edited (blurred out) for privacy issues. For instance juveniles are blurred. The right to privacy is weighed against the right to know.
In a case like this the state is motivated to end the case with a plea deal so no evidence needs to be shown in court. That is very likely to work because the perpetrator admitted that he planted the camera in order to avoid the sexual assault charges.
If for some reason a trial is required the unredacted tape doesn’t have to be shown to the public at trial because the people who were taped are irrelevant, the existence of the camera itself is the basis for the crime so even if some portion of the tape has to be shown to the jury for some reason the bodies and faces of people seen on the tape can be blurred.