In 2011 Attorney General Adriel Brathwaite indicated the roadblocks to allow video recording of interviews between police and accused persons should be removed. Two years later BU is aware those roadblocks have NOT been removed. Recently the question was asked in this forum why with the proliferation of mobile devices equipped to record audio and video such devices are not being utilized in crime fig
hting and its prevention in Barbados.
Section (20) 1 of the Barbados Constitution addresses a person’s right to communicate ideas and information without interference and freedom from interference with his correspondence or other means of communication EXCEPT for the prevention of crime or national security. There is a paucity of legislation in Barbados which addresses how mobile devices can be used in crime fighting. It is instructive to note in larger countries like the USA, Canada and the United Kingdom, “evidence” recorded on devices such as computers and mobile phones, whether video or just audio is admissible in a court of law under certain conditions.
Research reveals courts tend to treat videotapes as photographs and hold them to the same verification protocols. The objections to their admission that must be considered by the courts are:
Related Link: Evidence Act 2007
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The contents of the audio visual, absent the presence and testimony of a witness, may be hearsay.
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Is there a legally acceptable foundation laid for the audio visual?
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Is there a link between the audio visual and the case at bar?
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Is the audio visual probative, or merely cumulative and prejudicial?
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Is the audio visual representative of what it purports to portray?
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Is the audio visual of a sufficient quality not to confuse and mislead?
For a judge to accept audio visual evidence, it must be shown that:
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A witness is produced who can testify as to the conditions under which the recording was made – date, time, place, conditions etc.
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The audio visual will save the time of the court and avoid such procedures as visits outside the court etc.
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If a jury is involved, the judge may wish to limit its exposure to certain parts of the audio visual.
The provenance of the audio visual recording must then be considered. It must be established the date, time and place of the recording, the identity of the parties recorded, the equipment used for the recording, the procedures used, the chain of custody of the recording etc.
In the case of audiotapes the transcript must be prepared by a court reporter and a copy of transcript and recording sent to opposing counsel giving them adequate time to study same and advise on corrections.
Ask.com provides a fairly clear indication of how it works, no need for Barbados to reinvent the wheel. The need to be cautious when using audio and video evidence is obvious. It can be altered and it would require an expert at significant expense to verify if recordings made on iPhones, BlackBerrys and the like have (or not) been tampered with. The chances for miscarriages of justice are just great, unless there are stringent rules.
However, the greatest value of such recordings to any court system is that they can lead to out-of-court settlements, saving the time of the court. And also there is the enormous value to the Police in cases requiring criminal prosecution. In the end, however, the admissibility (or not) of such evidence is in the court’s discretion, although a decision to exclude the evidence may be appealed.
BU invite all and sundry to add to this important debate.
The blogmaster invites you to join the discussion.