Welcome to the discussion! We want to start this discussion by exploring what we mean by "evidence" and why it's important in seeking justice. Consider these questions below when sharing your comments in this discussion topic:
- The term evidence is used often (and somewhat broadly) in the human rights world. What does it take to ensure video documentation is legal evidence? In other words, how can we ensure video that activists sometimes risk their lives to capture, could be admitted into a court of law?
- At what stages of the criminal justice process can investigators and lawyers use video evidence?
- How do investigators and lawyers use video captured by activists in their process to seek the truth and secure accountability?
Share your thoughts, experiences, questions, challenges and ideas by replying to the comments below.
For help on how to participate in this conversation, please visit these online instructions.
I would like to open this conversation with a video (since the week is about video as evidence!) and a story.
Last fall, we showed the 2 1/2-minute video clip below to human rights defenders who were deeply familiar with the alleged chemical weapons attacks on the suburbs of Ghouta in Syria in the early hours of August 21, 2013 but completely unfamiliar with the industrial disaster that happened on December 3, 1984 in Bhopal India when a cloud of toxic gas escaped from Union Carbide’s pesticide plant killing thousands.
[If you don’t have time to watch, this clip shows a large number of people from Ghouta, Syria and Bhopal, India suffering from symptoms of constricted breathing, involuntary muscle spasms, frothing at the mouth, fluid coming out of noses and eyes, and then death.]
We then asked them, “What does this video offer proof of?” In short, they answered, ‘The video footage is proof of chemical weapons attacks in Syria and India.’ While wrong, this answer, on first blush, is understandable given the extensive media coverage of the alleged chemical weapons attacks in Syria.
Upon discussion, however, we all agreed that the videos themselves do not prove chemical weapon attacks at all. The video clips only indicate that hundreds of people in Ghouta and Bhopal appeared to be suffering from some sort of massive air-borne poisoning event. The videos do not tell us how the probable poisonings happened, why they happened, or who might be responsible. While the videos don’t provide the answers to these critical questions, they do offer up invaluable leads assisting the world in figuring out what happened in both situations.
I wanted to begin with this story because it illustrates how our outside knowledge can influence the conclusions we draw. Here, the human rights defenders were off-base in concluding that the videos proved that there must have been a chemical weapons attack in Bhopal because of their knowledge about the attacks on Ghouta. My hope for this online conversation is that we can set assumptions aside and think critically about how citizen video can be enhanced so that investigators, lawyers, judges and ultimately the world can recreate the story of a human rights situation, piece-by-piece, to ensure we can prove the full and honest truth allowing us to bring perpetrators to justice and free the wrongly accused.
Since there’s so much to talk about around the subject of video as evidence, let’s dive in!
Given that I work in The Hague and observe war crimes trials regularly, I can say a few words about what I have witnessed in the courtrooms in the last few years. This related to war crimes trials and might not be the case in other circumstances and other jurisdictions.
Often, when used in court, a video is only one piece of a puzzle and prosecutors, defense counsel or judges will ask someone to come and testify about the video and its authenticity. Ideally, this is a person who created the footage because what needs to be verified is time, location and other relevant facts about the video. A lot of it can be very technical and we might hear questions like: where did you stand when you made it (and this can be done in combination with maps and still images being shown in the courtroom); what type of equipment did you use, which direction were you facing, what time of day it was. Clearly, as technology developed a lot of this information can be obtained from the file itself (but this was not necessarily the case earlier). If the person who made the file is not available, there will often be people who are in the footage to confirm what the footage shows and speak about it.
I agree that we often assume and let ourselves be influenced by information we obtained elsewhere. We also often believe what we want to believe about certain images and situations. We need to be aware of this bias and try to view every image and segment as impartially and critically as we can and think about what it actually proves.
If an individual creates footage that s/he believes might be used in court later on, it might prove useful to note when/where it was made and note down as many details as possible (direction, time of day, names of persons who were at the same event - witnessing the same event). If there is police in the footage, note down if we can see any insignia (that might not show in the footage clearly); try and note down licence plates of cars and vehicles or try to pay attention to the accent someone has in a language that we speak. All kinds of information (details) can be relevant and if we think we have something important, it's a good idea to note down as many details on a separate sheet of paper as soon as possible before forgetting.
It's a good idea to make copies of the file and not mess with it at all and copy it, as it was originaly made, and store it in safe locations so there are several copies available.
The standard of proof in court is high (as it should be) and what we think might be enough to convince us of something in regular, everyday life might not be convincing enough for the courtroom.
Kelly's story exemplifies another important point about the use of video evidence in judicial proceedings involving human rights or international criminal law. Criminal lawyers often speak of "crime base" and "linkage" evidence:
Video/digital evidence can be both. In human rights situations, we often have a lot of crime base evidence from citizen journalists and human rights observers. However, linkage evidence is often harder to come by.
In international law, we are most often concerned with war crimes, crimes against humanity, or genocide. Many states can also prosecute individual acts of torture, disappearances, summary execution (murder), and other forms of mistreatment. Each of these crimes is defined in terms of elements that must be proven by a prosecutor to secure a conviction. So, for example, to prove the war crime of intentionally targeting a civilian, the prosecutor will need to prove:
In today's armed conflict situations, we often see a lot of video evidence of conflict scenes or of victims. This can be helpful crime base evidence, because it will tend to prove that there was an armed conflict underway and that individuals were killed. However, a close up video of a bleeding victim does not necessarily prove the existence of a war crime. Absent additional information, such a video may not prove that the victim was a civilian or even that the victim was killed in hostilities and not in a car accident. This is where context can be very important. Even simply panning out to show the entire scene in which this victim is situated can help to eliminate ambiguities about what the video actually shows.
For participants interested in legal standards, this link will take you to a paper on using digital evidence in international criminal law. It is a techncial/legal paper, but it might be useful to some participants.
I would like to emphasize Iva’s point that video is just a piece/s of a much larger puzzle that attorneys rely on to tell the story of a particular human rights situation and Beth’s important point that Linkage Evidence is often harder to come by.
Staying with the above video footage of the alleged chemical weapons attacks, in Ghouta, Syria for another moment let’s look at how the U.N. Mission to Investigate Allegations off the Use of Chemical Weapons in Syria was able to piece together different types of evidence to confirm, by clear and convincing evidence, that chemical weapons were used against civilians, including children, in Ghouta.
First, it’s key to recognize that the videos were vital to alert the world to the atorcity. The videos served as what is referred to as Lead Evidence. As discussed above, the videos of a large number of people suffering from symptoms of constricted breathing, involuntary muscle spasms, frothing at the mouth, with fluid coming out of their noses and eyes, and then death, only alert us that a crime may have been committed. The videos do not prove a crime.
So next the U.N. Mission looked at the blood and urine samples they collected. They found that the samples from the victims tested positive for Sarin gas. This provided definitive evidence of exposure to Sarin. Attorneys refer to this as Prima Facie Evidence as it establishes a key fact - exposure to the gas. It does not however establish whether the poisoning was purposeful or not.
In addition to being Lead Evidence, the videos along with: i) clinical medical examinations showing typical symptoms of exposures to a nerve agent; and ii) testimony of survivors, nurses and doctors detailing the symptoms they saw and experienced after the shelling reinforced that civilians were exposed to a nerve agent. The videos, medical exams and witness testimony are referred to as Corroborative Evidence because they back up the results of the blood and urine tests. Again, this still does not establish whether the poisoning was purposeful or not, or provide any insight into the source of the gas.
The U.N. Investigators also completed a site visit to what was believed to be the impact zone of the rockets carrying the poison. Analysis of the impact zone, combined with subsequent laboratory tests, confirmed that the rockets and rocket fragments contained Sarin gas. This allowed investigators to conclude there was an intent to attack and that this was not likely an accident. This is sometimes referred to as Inferential Evidence as it allows us to draw a conclusion that the attack was likely purposeful since it would be unusual to say the least for a surface-to-surface missile to launch itself.
Witness testimony confirming that shelling took place immediately before the victims started showing symptoms of poisoning, further corroborates the conclusion that surface-to-surface rockets were used to deliver the gas.
So the key point first made by Iva: Investigators, analysts and lawyers, prove their cases by pieceing together a variety of evidence, which allows them to tell the full story, from start to finish. In this case, the U.N. investigators were able to clearly conclude that chemical weapons were used on civilians. They started with the videos and then used witness testimony, medical exams, medial lab results, weapons analysis and technical assessments to confirm that the attack was purposeful.
The next step is to prove responsibility by uncovering the Linkage Evidence that Beth refers to. Without linking the crime to a person, we cannot secure justice and accountability. A story about this to come but for now, if you have a Case Study that illustrates how video has served as a piece of the puzzle in securing accountability, we would love to hear it!
Video can be used at every stage of the criminal justice process. The names of the stages vary depending on the country and the court but generally speaking, the stages are:
To illustrate how video has been used by activists, NGOs and lawyers at different stages of this process, I thought I would share a simplified story about the warlord, Thomas Lubanga Dyilo, from the Democratic Republic of Congo (DRC).
As we all know, the eastern DRC has been embroiled in complex conflict that has left millions dead. Many different militias have participated in the long war including the Union of Congolese Patriots (UPC), once led by the warlord named Thomas Lubanga. Lubanga was known throughout the region for systematically conscripting, enlisting and using child soldiers in war. Here’s how video help secure his conviction.
Video’s Role in Initiating an Investigation: In 2003, the DRC-based organization, AJEDI-Ka, along side other courageous NGOs, started capturing video documentation of the use of child soldiers to complement their other forms of evidence collection. AJEDI-Ka took this risk in hopes that someday, the military leaders responsible for using child soldiers would be held criminally liable.
As part of AJEDI-Ka’s work towards this goal, AJEDI-Ka and WITNESS co-produced two films to contextualize this human rights crime:
As you can see by watching the films at the links above, these films are edited videos. The films set forth the backstory. They are for advocacy purposes. The videos are not legal evidence.
After the films were completed, ADJEDI-Ka met with the DRC investigations team at the Office of the Prosecutor (OTP) for the International Criminal Court (ICC). ADJEDI-Ka screened the two films to provide the OTP with the broad factual context on the use of child soldiers in hopes the OTP would ramp up its investigations into the use of child soldiers in this conflict. The Prosecutor requested all the original, unedited footage from AJEDI-Ka and asked AJEDI-Ka to provide chain-of-custody information. In other words, the ICC needed to know how the video got from the military training camps where it was filmed, to AJEDI-Ka, to the ICC?
The result: The presentation and provision of this video footage, in turn and in part, gave the ICC’s Prosecutor the information the office needed to initiate an in-depth investigation into the conscription, enlistment and use of child soldiers in eastern DRC.
Video’s Role at the Confirmation of Charges Hearing: Over the next three years, the ICC’s OTP collected evidence against Lubanga (including more video). When they had sufficient, admissible, legal evidence, they issued an arrest warrant charging Lubanga for the war crimes of enlisting, conscripting and using child soldiers in active hostilities. Once arrested, Lubanga appeared at his Confirmation of Charges Hearing. At this hearing, (and very simply put) the ICC Prosecutor listed the evidence against Lubanga so that the judges could ensure that there was reasonable grounds to believe that Lubanga likely enlisted, conscripted or used child soldiers and therefore, should indeed stand trial for the alleged crimes.
At the Confirmation of Charges Hearing the Prosecutor did not show video. Instead, he verbally described to the judges what the video would show - and in turn prove - about Lubanga’s role in the alleged crime.
The result: The Prosecutor presented the long list of evidence against Lubanga, including the descriptions of the video footage. Then, based on the evidence, the judges ordered Lubanga to stand trial.
Video’s Role at Trial: As Beth shared in her earlier post titled, Crime-base v. Linkage Evidence, every crime is broken down in what is called Elements of a Crime. So, for example, to secure a conviction for the larger crime of Enlisting, Conscripting and Using Child Soldiers in Active Hostilities, one of the elements the ICC Prosecutor needed to prove is that some of Lubanga’s soldiers were under the age of 15. The Prosecutor could not rely on birth records to prove age because birth records are rare in the DRC. Forensic evidence was also unreliable because the models used to age children based on bone structure were based on American and European children. Since documentary and forensic evidence could not prove age, the Prosecutor relied, in part, on a series of video clips showing: i) Lubanga at the military training camps speaking to children; and ii) children serving as his bodyguards. A sample of the footage from the opening argument can be watched here and below.
The result: Lubanga was found guilty of the charges related to child soldiers and sentenced to 14 years in prison.
The Key Point: Video that activists capture may never not find their way into a courtroom. Yet, this does not diminish the value of video to support the quest for accountability. As the investigation and trial against Thomas Lubanga illustrates, video is useful at different stages – from advocacy to evidence. Given the long, long path from advocacy to evidence, I look forward to hearing stories from others on how you have used video at the different stages of the criminal justice process and any ideas on how we might enhance the evidentiary value of video so it can go beyond advocacy and into the courtroom.
I wanted to follow-up on Kelly’s post about the various stages in which video evidence can play a role by adding two other examples. These examples are more targeted to cases before the International Criminal Court. As many of you know, at the confirmation of charges stage, the pre-trial chamber reviews not only the evidence against the defendant, but also whether the case as a whole is admissible before the Court. One component of admissibility focuses on whether the case is of sufficient gravity to fall under the Court’s jurisdiction.
Video evidence was successfullly introduced during this phase in a case involving Darfur, Sudan. The ICC indicted three individuals, Bahar Idriss Abu Garda, Abdallah Banda Abakaer Nourain, and Saleh Mohammed Jerbo Jamus as responsible for an attack on a peacekeeping mission camp in Darfur. During the confirmation of charges hearing for Abu Garda, the court relied on videos and photos, together with witness statements, to determine that the attack on the camp disrupted important services on which civilians relied. The videos/photos introduced in the proceedings included images showing civilians receiving medical and other services at the camp prior to the attack and the damage to the camp following the attack. Although the chambers declined to confirm the charges again Abu Garda due to insufficient evidence of the defendant’s linkage to the conduct (reinforcing the point that Beth and Kellly have made), the pre-trial chamber did determine the attack on the camp was sufficiently grave to fall under the jurisdiction of the Court. As a result, the case against defendant Banda is continuing. Thus, the video evidence can be important to the threshold determination as to whether a case should go forward.
Kelly also mentioned the sentencing phase. In the case of the ICC, the Court has the power to order a perpetrator to pay reparations to victims. Representatives of the ICC have noted that there is often not much evidence to support the reparation claims. They have expressed that verifiable video footage showing property damage or other destruction could be useful in this phase of the proceedings.
Maybe this can be a good resource for someone interested to explore this topic further:
Dear Iva, many thanks for posting our new resource, that we just launched 10 days ago. It's a resource dedicated to human rights workers, who can use our site to learn about validating citizen video. The center piece is a step-by-step-guide to assess YouTube videos. Background to that is that there are a myriad of steps and tools out there to use in verification work. Speaking from personal experience, I often forgot about certain tools or steps, so I wanted to come up with a linear process that forces researchers to go through all necessary steps. Additionally, I want to point out the YouTube DataViewer, which assists in tracking down previous versions of a YouTube video - a very simple tool, that helps me a lot in my day to day work of assessing citizen video:
So I hope this is useful for human rights workers to be able to better assess an emerging situation, where a lot of videos are posted online. It can also help with integrating YouTube videos in human rights research and advocacy. Of course, to be used in a courtroom, additional things have to be considered, as you have pointed out previously.
For those interested, a bit more background on the Citizen Evidence Lab can be found on our blog
Hi! Oh no worries, I gladly spread the word on good projects and initiatives. A friend of mine here in The Hague works for Amnesty and she initially told me about it, some days ago. Good luck with the new project and I will share it on Linkedin and Facebook too.
Well I am not sure how much this is going to enrich our discussion, but one critical role a video can play in the process of justice is at early stages specially if it went viral on media.
Sometime the video might not be a big part of the puzzle, like the video in this case, but it could be a very crucial part of the puzzle where it can push for a real investigation and much bigger action.
Few days back a video from Lebanon went viral online showing a 2 year old lebanese child beating an older Syrian refugee child by instructions from older people behind the camera, the video was so inhumane, and so much racists that within the same day all mainstream media in the region played it and campaign was launched through Avaaz demanding the Lebanese authorities to find the family of the lebanese child and take appropriate actions toward them and to prevent such hostilities in the future.
Link to video : http://www.youtube.com/watch?v=M7upM_Ks9ok&list=UUtuKJMKy__R5ZbmExMMlQbw ( i do not recomment to watch it; so painful)
Link to Avaaz Campaign : https://secure.avaaz.org/ar/petition/lHkwm_wlslTt_llbnny_yjd_wld_bWs_wtk...
This is the first time that such an assualt was taking seriousely, and Lebanese police found the family in the same day the video went viral, and both the Minister of Justice and Minister of Social Affairs made statements on this incident and demanded immidiate action.
The "Digital Security" crime unit was in charge and within 15 hours they traced the IP address of which the video was uploaded and were able to indentify the family of the little lebanese kid. They took them for investigation but did not arrest anyone.
Later same evening mainstream media conducted interviews with both faimlies and of course, each channel projected the story according to thier agenda. The Lebasese authorities has also reached the Lebanese family and started an investigation. Though this is not the first time a syrian refugee (adult or minor) has been assualted or exposed to violence in Lebanon. As Syrians started to seek refuge from the shelling and bombing by Syrian Governemtn on civilian neighborhoods, syrians started to seek shelter in enighboring countries.
Now the family could get away with it, and could blame the young teenagers who alligedly were the ones pushing the 2 years old kid to beat the syrian one, but we are hoping that this media fuzz will push the lebanese government and international NGO to do a better work in protecting refugees from violence in Lebanon.
A business man also, allocated around $350,000 for people who report any abuses or mistreatment toward Syrian refugees. (this could be good and bad if misused )
Verification of videos is also a very important thing to look at when we want to use the video as evidence. Two examples of verification:
Case one: Verifying citizen video Aleppo-Syria - Very interesting case study where they used google maps to verify the video
Case two: A Video claimed in Gaza, Palestine, proved to be from Syria
Thanks for sharing these case studies, Mayss! Verifying citizen video opens new opportunities and challenges for practitioners. That is why we have an entire discussion topic within this online conversation dedicated to exchanging examples, challenges and ideas on the verification of videos. Please continue to share your insights on verification there!
Looking forward to learning more about the verification process and its challenges.
- Kristin Antin, New Tactics Online Community Builder
I'd like to expand the discussion to consider video that is created by eyewitnesses who are not necessarily trained in documentation or human rights. For the sake of the conversation, I'll call it "citizen video." To return to the original question that began this thread, what specifically does citizen video need to be used as evidence in any of the stages of the criminal justice process that Kelly outlined?
Iva's perspective from The Hague is very helpful, but it sounds like the original filmer of the video needs to testify at the court for a video to be admitted as evidence. Might that change with the greater use of citizen video by ICJ institutions (for instance, if experts can explain how the video has been authenticated)? Also, I imagine the bar is lower for video to be used in the Call for Investigation and Investigation stages of the criminal justice process, but is there any particular standard?
For instance, as Kelly pointed out, online video from Syrian activist media outlets was used as lead evidence and corroborative evidence in the UN's investigation of the Ghouta chemical attack. Did the UN verify those videos (using tactics like those outlined in the Citizen Evidence Lab verification process referenced above)? Was the sheer number of videos from different sources showing similar symptoms of an attack enough to give credence to their footage? Did the UN investigators actually contact the original filmers? Does context by third parties explaining what the videos show and how they have been verified strengthen the credibility of online videos?
I ask because we curate online citizen footage of human rights abuse on the Human Rights Channel. It is often difficult or impossible to track down the original filmer, who in many cases fears for his/her safety if identified, but the footage captured could potentially provide lead and/or corroborative evidence. Sometimes we do see a response by the ICJ community, but most of the time we don't. It would be helpful to know what would make such video more likely to form the basis of such for a body like the UN or the ICC.
One example we have followed is footage that emerged online in Fiji last year that appeared to show police torture prisoners in an open field (scroll to bottom of this blog). Even though many questions remained about the video--such as when and where exactly it took place--the UNOHCR responded with a call for an investigation.
What is video evidence?
According to Elliott Goldstein, a Woodbridge, Ont., lawyer; an acknowledged video evidence expert who lectures at the Ontario (Canada) Police College, and the author of the two-volume book, Visual Evidence: A Practitioner’s Manual, “In the old days, video images were recorded on videotapes. When it came to submitting them as evidence, there was no problem: You just took the original tape into court and played it for the judge and jury. But today most [surveillance] video is recorded on hard disk drives, which are routinely wiped as new data comes in. This means that the video evidence has to be downloaded onto a DVD or digital tape, requiring very careful procedures, witnessing, and documentation to prove that you have an unedited ‘exact duplicate copy’ of the original.”
According to Jonathan Hak, “The party tendering video evidence must establish how the video was recorded, what impact the recording process had on the captured video, whether the exporting of the video evidence has further comprised the reliability of the images and whether all relevant video has been obtained of the incident in question.” As a result, “video evidence must be authenticated in order to gain admissibility in court. Authentication can be accomplished by witnesses familiar with the video content — for example, the person who captured the video images — or technically, showing that the images have not be altered in any improper way. This is a requirement of both the Canada Evidence Act and common law.”
According to LEVA, "Multimedia Evidence. Analog or digital media, including, but not limited to, film, tape, magnetic and optical media, and/or the information contained therein. NOTE: The term Digital Multimedia Evidence (DME) used in this document refers specifically to multimedia evidence in a digital form."
According to the IAI/LEVA Glossary, "Digital Evidence. (CER) Information of probative value that is stored or transmitted in binary form."
Does video evidence in digital form have to be downloaded or exported so that you have "an unedited ‘exact duplicate copy’ of the original?” LEVA's guide notes that in acquiring DME, one should "Transfer all relevant media files from the DVR." Download, export, transfer. Seems like there's some agreement.
LEVA adds what the Flip Book notes, "In addition to acquiring the native video files, a transcoded copy (eg: .avi) may provide an interoperable format for ease of use by investigators." Securing and protecting the native video files (evidentiary data) is the goal of securing video evidence." Thus, I think that we can say that digital multimedia evidence (video) from digital CCTV systems should be retrieved in digital form. Any deviation from this should be done with extreme care and only in the worst case scenario.
Authenticating digital evidence employs various schemes that look at the underlying math within the container, changes to the container, and so forth. If you've retrieved the proprietary/native data and the authenticity of the data is challenged, you have the original export/transfer to test against and (hopefully) the DVR that produced it. The rest is pretty straight forward time consuming work.
Worst case scenarios call for solutions like screen capture hardware/software and/or scan converters. These options don't actually secure (download, export, transfer) the native data, they take a picture of it. Can you authenticate screen grabs? Maybe. "This screen grab has not been altered." But, if you didn't actually secure the native data or seize the DVR, how do you show that the screen grab depicts what it's supposed to depict? How do you tell the DVR's story? What if there's a challenge to the authenticity of what's depicted (as happened in People v Abdullah, BA353334 - Los Angeles County Superior Court, December 2009)?
I've processed DME from recorders that I didn't download, from scenes that I've never been to. I rely on chain of custody documents, notes from the field, and etc. Remember, thanks to Melendez-Diaz, everyone in the chain of custody may have to testify. So, if you, your first responders, or your investigators are using worst case tools as their main option - they may eventually have to testify.
If not, why not?
What are their arguments against your methods?
These are all questions that I've faced. How will you answer them if/when asked in court?
I realize that agencies are overtasked and understaffed. I understand that well-meaning folks are "just trying to get things done." I understand that most have the best interests of all parties in mind. I also understand that video evidence (DME) is evidence - and should be treated as such. It's not "just video." Often times, its the only witness to the events of the day. Please don't let expediency guide your path. "Video evidence is a lot like nitroglycerin: Properly handled, it can demolish an opposing counsel’s case. Carelessly managed, it can blow up in your face.
For more info on the topic of authenticating digital multimedia eviedince for use in court/trial, click here.