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5 Things to Know Before You Shoot Video of a Possible Crime

video crime
Protesters kneel in front of New York City police during a march to honor George Floyd near Union Square on May 31, 2020, in New York City. Violent nationwide protests broke out after video emerged of Floyd's death at the hands of Minneapolis police officers. John Moore/Getty Images

The emergence of a shocking cell phone video depicting the death of 46-year-old George Floyd on May 25, 2020, during his arrest by Minneapolis police officers, set off a wave of disgust and anger that sent major cities in the U.S. and abroad into convulsions of protest and violence.

Barely three weeks before that, on May 5, 2020, another cell phone video went instantly viral, this one depicting the shooting death of 25-year-old Ahmaud Arbery as he jogged through a neighborhood near Brunswick, Georgia. It caused a huge public outcry and quickly was followed by the arrest of two local men who were charged with murder and aggravated assault.

The Arbery video also changed the life of William "Roddie" Bryan, the neighborhood man who recorded the fatal confrontation from his pickup truck, and soon faced public scrutiny and accusations that he was more than an innocent onlooker. Bryan took a polygraph test in order to show that he didn't participate in the fatal shooting, and went into hiding with his fiancee after being targeted by protesters, CNN reported. Nevertheless, the Georgia Bureau of Investigation arrested Bryan on May 21, 2020, on charges of felony murder and criminal attempt to commit false imprisonment in connection with Arbery's murder, according to a GBI press release. Bryan's attorney maintained his innocence, according to The Brunswick News.

The George Floyd video, the Ahmaud Arbery video and so many more before those, have rocked the world and underscored how incredibly complicated things can quickly become when someone records a video of an act that may turn out to be a crime. Videos shot by bystanders can become important pieces of evidence in court cases, to the extent that law enforcement authorities sometimes now call for members of the public to come forward with them, as they did in the case of a shootout between police and truck hijackers in Florida in 2019, according to NBC Miami. Recordings also can become crucial sources of information in police shootings such as the 2015 killing of Walter Scott, an unarmed man in South Carolina, which was recorded by a passerby walking to work.

In a day and age in which shooting video is so easy that people often impulsively pull out their phones whenever there's any kind of excitement, it's entirely possible for someone to capture footage of a crime and not even realize its significance until he or she gets home and watches it, attorney Eric J. Trabin explains. He's an Almonte Springs, Florida-based criminal defense and family law practitioner, and a former assistant state attorney in Florida.

"No one knows if it's going to be a high-profile case when the incident is happening, that you are going to be sucked into the vortex," he says.

Nevertheless, shooting a video of a possible crime can complicate your life in a hurry. Instantly, you may morph into a news source and continually face a constant barrage of questions from reporters. Police and prosecutors may see you as a key witness in an investigation and trial. You may even come under public scrutiny about your motives and the extent of your involvement in the incident, or find yourself the target of protests and even threats.

Here are five things you should know before hitting the record icon on your phone screen.

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1. You Have the Right to Record Almost Anything in Public

"When in public spaces where you are lawfully present you have the right to photograph — still or video — anything that is in plain view," Jay Stanley, a senior policy analyst for the American Civil Liberties Union's Speech, Privacy, and Technology Project, explains via email. That includes the freedom to shoot video of police officers, as long as you don't jump into the middle of the action and get into their way.

If you're out in the street or on a sidewalk, "you pretty much have a right to video almost anything you want," Trabin explains. In a follow-up email, he notes that there are a few important exceptions. "It wouldn't be OK to video someone if it was part of stalking a person or if it were child pornography," he says.

On private property, it's a little more complicated, because the property owner may set rules about the taking of photographs or video. "If you disobey the property owner's rules, they can order you off their property and have you arrested for trespassing if you do not comply," Stanley says. "Some recent court cases have suggested that there may be exceptions, however, where people can record even against the wishes of a property owner, such as when you're taping something of public concern like illegal activity. The law is still uncertain in that area."

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2. You're Not Legally Obligated to Send the Video to the Police

If you shoot a video and simply stick your phone in your pocket, walk away, and don't ever show the video to anyone else or upload it to social media, you might conceivably avoid police attention if you're not the sort who wants it. But if you choose to come forward, or investigators find you somehow, it's likely that they're going to want that video.

In most instances, police can't confiscate your phone, unless it's either some sort of dire life-and-death emergency, or they have reason to believe that you're going to delete the evidence, according to Stanley. But you're probably going to end up giving the video file to them.

"Although a person could choose not to turn over the video, the police could go to a court and obtain a warrant for the video," Trabin notes via email.

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3. Your Video Contains a Lot of Potentially Important Evidence

You might think that the video itself is the only thing that matters, but Trabin says that the file has lots of other information that can be invaluable to investigators, such as geolocation, time and date data that shows exactly when and where something happened.

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4. You Could Become a Witness in a Criminal Case

Sometimes, both sides in a criminal case simply will stipulate that a video accurately depicts what happened, Ronald L. Carlson explains. He's the Fuller E. Callaway Chair of Law Emeritus at the University of Georgia School of Law, and author of 20 books on the law of evidence, criminal procedure and trial practice. But if the prosecution and defense don't agree, the side that's relying on the video needs to lay a foundation by putting the person who shot the video — someone else who was there — on the stand to authenticate it under oath.

"Either the photographer or the bystander have to say this is a true and accurate representation of the scene or objects that we saw that day," Carlson says.

Even so, the other side can still try to challenge the video on various grounds, according to Carlson. "Somebody who was involved in the fight or whatever was captured in the video might testify that it distorts or misrepresents how things went down."

Things can get more complicated if the person with the phone only captured part of the incident. One option for the judge would be to throw out the partial video, in response to an objection that it would prejudice the jury. Alternatively, though, "the judge might allow it to come into evidence, but require the person who shot it, or his buddy, to testify to the portions [of the event] that were left out," Carlson explains.

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5. You May Face Some Uncomfortable Public Scrutiny

If you pull out your phone and record an apparent violent crime in progress, you may also be faced with a discomforting question: Instead of shooting video, why didn't you come to the aid of the person being victimized? In one particularly extreme example of inaction, numerous teenage bystanders watched as a 16-year-old boy got into a fight outside a Long Island strip mall in 2019. Instead of intervening, some simply recorded it on their cell phones, even when the victim fell to the sidewalk with what turned out to be a fatal stab wound, according to The New York Times.

"First and foremost, I care about the target and I want someone to do something to protect that person," Dr. Sameer Hinduja says via email. He's co-director of the Cyberbullying Research Center and a criminology professor at Florida Atlantic University. "Shouldn't that be everyone's default concern? Shouldn't they be compelled to action when they see victimization take place?"

In a strict legal sense, though, you're probably in the clear if you just stood there and shot the footage. "Generally, individual bystanders are not legally compelled to assist or intervene when witnessing criminal activity," Jan L. Jacobowitz, a lecturer and director of the professional responsibility and ethics program at the University of Miami's School of Law, explains via email.

Things possibly could get more complicated if you upload the video to the internet. While it's not against the law to record an event that occurs in a public place, "if the video is used on social media to portray an individual in a false or defamatory manner then the individual may have a legal cause of action," Jacobowitz says. Even so, "if there is not an attempt to portray an individual in a false light, then the posting of the video, in accordance with an online platform's terms of service, is likely legal regardless of whether it may be considered in poor taste."

If your video becomes part of an investigation and a court case, you may find yourself becoming news as well, as the video-shooting neighbor in the Georgia case has discovered.

Handling all these issues is no simple matter, and you won't want to manage it without professional help. "Pretty quickly, you should call a lawyer and get representation," Trabin says.

An attorney can contact the police on your behalf and make arrangements to turn over the video. He or she also can help you to answer whatever questions that investigators have. Additionally, your attorney can field any inquiries that you get from the media — and keep you from making misstatements in interviews that you might be questioned about later in court.

"You don't want to end up on TV [like] a deer in the headlights," Trabin cautions.

Additionally, Trabin says you'll want to make multiple copies, including a cloud-based backup, of that important video, and you'll want to store the phone that you used to record it in a safe place as well, since police may need it too.

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