But For Video: Your Lying Eyes Edition

Between the rhetorical “search for the truth” stuff that’s thrown up when convenient, and the burden of proof stuff that’s hauled out for the same reason, people would likely believe that a video that shows police testimony is false less than accurate would be good enough to put an end to a phony reason to stop a car.

Not true, said the Indiana Supreme Court in Robinson v. Indiana.  There, the trial court held a suppression hearing for the stop of defendant’s car, which was pulled over by Deputy Casey Claeys of the Elkhart County Sheriff’s Department.

Deputy Claeys later testified he saw the vehicle “drive off the right side, which was the south side of the road, twice.” Immediately after the second incident, he turned on his vehicle camera and initiated a traffic stop for “unsafe lane movement.” The camera, once activated, retroactively records the previous thirty seconds.

There you go, the trained eyes of Deputy Claeys plus the indisputable camera lens. What could go wrong?

Ultimately, the trial court denied Robinson’s motion to suppress. Citing State v. McCaa, 963 N.E.2d 24, 31 (Ind. Ct. App. 2012) (finding reasonable suspicion for a traffic stop when the defendant drove “slowly and off of the roadway twice”), the trial court stated it “reviewed the video on approximately ten occasions and cannot conclude from the video that the defendant’s vehicle actually left the roadway . . . but it does show the vehicle veering on two occasions onto the white fog line.”

While there is no discussion of where the “white fog line” was relative to the roadway, the trial court made clear that despite watching the video ten times, he saw nothing to support the deputy’s claim that the car veered off the road. Not once. Not twice. Not at all. So? Suppression denied.

The trial court noted, however, that it was “quite possible that the officer’s actual visual observation of the defendant’s vehicle was superior to the video camera in his car.” App. at 33. After considering all of this evidence, the trial court concluded this case was “perhaps a closer call” than McCaa, but that “the act of weaving onto the fog line, while not itself an illegal act, did give a trained police officer justification to stop and inquire further as to the driver’s condition.”

Two interesting findings in there. First, an illegal act obviously justifies a stop, but then, so too does an act that is not “itself” illegal.  Whatever happened to the good old days when cops had to make up an illegal act to justify a stop?

Second, the “officer’s actual visual observation” was “superior” to the video.  Who you gonna believe, your lying eyes or the deputy’s testimony?

The State, on the other hand, cautions us not to “rest [our] determination on minutia of an imperfect and rudimentary video.”

It’s video. Putting the words “imperfect and rudimentary” before the word “video” doesn’t change its nature.  If any words belong there, it’s “objective and unbiased.”  The video doesn’t choose to record what occurred in favor of one side or another. It just records, and it lets the chips fall where they may.

Except in Indiana. And Nebraska. And Kansas too.

While technology marches on, the appellate standard of review remains constant. As we said above, we do not reweigh the evidence. Our colleagues in other states have taken a similar approach when faced with video evidence. State v. Vanscoyk, No. A-12-024, 2012 WL 6580786 at 6 (Neb. Ct. App. Dec. 18, 2012) (“Vanscoyk essentially asks us to reweigh evidence and witness credibility to determine whether Officer Kowalewski’s testimony is credible in light of the video. This is not the appropriate province of an appellate court.”); State v. Gross, No. 107320, 2012 WL 3136809 at *4 (Kan. Ct. App. July 27, 2012) (“We do not reweigh the evidence, and the district court’s conclusion that the video was ‘the clearest evidence’ is not contrary to any uncontested testimony.”); State v. White, No. E2010-02238-CCA-R3CD, 2011 WL 5335471 (Tenn. Crim. App. Nov. 2, 2011) (declining, in a challenge to the sufficiency of the evidence for a conviction for drunk driving, to reweigh the evidence and find a video recording more reliable than eyewitness testimony).

And lest one suspect this was just a flyover state attitude, the court bolstered its position by the opinion of a justice of our nation’s highest Court:

And just like any other type of evidence, video is subject to conflicting interpretations. In Scott v. Harris, 550 U.S. 372 (2007), Justice Scalia, writing for the majority of the Court, described a videotape as showing “a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury.” Id. at 380. Based largely on his impression of that video, he concluded police were justified in using deadly force to end the pursuit.

While the Indiana Supreme Court wasn’t so cavalier as to refuse to watch video, relying solely on deference to the trial judge, it was ultimately constrained to tip its hat:

And when Deputy Claeys testified at the suppression hearing, the trial judge heard his testimony—along with the other witness testimony and evidence, including the video—through the lens of his experience and expertise. Ultimately, that experience and expertise led the trial judge to weigh Deputy Claeys’s testimony more heavily than the video evidence, and we decline Robinson’s invitation to substitute our own judgment for that of the trial court and rebalance the scales in her favor.

After all, could it be wrong as a matter of law to refuse to respect the trial court’s reliance on the officer’s “experience and expertise” rather than a video?

The trial court found, as a matter of fact, that to the extent Deputy Claeys’s testimony conflicted with the video, the former was more reliable than the latter. Deputy Claeys testified “both passenger side tires were over the fog line” and “completely off the roadway” “twice.”

And who are the judges of the highest court in Indiana to disagree?

Ironically, Judge Robert Rucker, in dissent, took no real issue with the trial court’s decision to credit Deputy Claeys over the video, as it was “entirely within the trial court’s province to do so.”  Rather, he noted the secondary problem, that the trial court held a stop justified for conduct that was not illegal.

I agree and would reiterate the observation that “if failure to follow a perfect vector down the highway or keeping one’s eyes on the road were sufficient reasons to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy.”

In other words, not only can’t you win, but you can’t even win if there’s a video proving there was no illegal act.  The moral of the story is don’t drive in any state where there’s a white fog line. Or cops. Or judges.


One comment on “But For Video: Your Lying Eyes Edition

  1. Patrick Maupin

    I blame pro sports for the idea that some calls are not subject to video review. One can only hope that the courts, like the sports leagues, will gradually widen the scope of subject calls.

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