In what circumstances may a lay-witness be permitted to give evidence of what he/she perceives from CCTV footage, and when does such evidence become inadmissible opinion evidence from a non-expert?
Bar on ‘Qualitative Judgmental’ evidence
In People (DPP) v O’Brien [2015] IECA 312 the Court of Appeal upheld the admissibility of evidence given by a Garda witness of what he perceived on CCTV footage. In that case Gardaí had recovered CCTV footage recorded on the morning of the incident by cameras at various locations. The footage was of variable quality, and some of it was not continuous but rather was sporadic where activation of recording had been controlled by movement sensors.
The prosecution applied for liberty to adduce evidence, in the form of a narrative, from a Garda who knew the area, and the locations of the various cameras, and who had viewed the CCTV footage in question, concerning what he had seen. The defence conceded that the provision of some limited assistance (eg. pinpointing the location of the footage, identifying a figure or the fact that there is a vehicle) to the jury might be unobjectionable, but objected to anything beyond that on the basis that the interpretation of the physical evidence (ie. the CCTV) was a matter for the jury.
The trial judge ruled as follows:
“Well, it seems to me that the situation is this: that first of all, that the jury are entitled to a degree of assistance. It isn’t to be the situation that public money should be wasted by asking them to watch apparently meaningless clips and being asked to make what they will of it. That doesn’t seem to me to accord with seeking to achieve a fair trial at all. On the other hand, it seems to me that the witness should not become involved in a qualitative exercise and making judgment calls as in: ‘I recognise X or Y. The clothes in this clip are the same as the clothes in that clip.’ So, it seems to me that what would be an appropriate situation is that the material can be played for the jury. The witness can operate as a guide. That means that he can, clip by clip, indicate the camera that appears to be involved by reference to the map, what area in the map appears to be involved, directions of travel, and so on. Insofar as some of the clips deal with motor vehicles, I see nothing objectionable if he’s asked does he want to point to any features of the motor vehicle and if he wants to draw the jury’s attention to the fact that a vehicle is missing an alloy wheel or has an L plate or whatever, there is nothing objectionable. So far as individuals are concerned, it seems to me that he’s entitled to relate the clip to a camera, relate the clip to a particular location on the map, direction of travel, if necessary relate it to the previous clip that they’ve seen or indeed the next one that they’re going to see. And likewise, just as I think that there’s nothing objectionable in him drawing attention to features of the motor vehicles, it seems to me he’s entitled to draw attention to matters that the prosecution contend are of significance. So, he’s entitled to point to features of clothing or whatever, but only on the basis of: ‘This is what is visible to me at this moment and this is where I invite you to direct your attention so that you too will see the same thing.’ It’s not to be on the basis of: ‘And this is the same clothing as was worn in the previous clip.’ Still less is it to be: ‘And this is the same clothing as was worn in The Spotted Dog or in the unnamed building in Limerick city centre,’ or anything of the sort. So, it is not a qualitative judgemental exercise. He is, it seems to me, entitled to, because the jury are entitled to have assistance, he’s entitled to act as a guide for the jury in bringing the jury through the clips. At some stages it may be that he’ll want to go to the monitor to direct their attention to a particular part of the photo to concentrate their attention on the foreground or the back right corner or whatever it’s to be. But I would stress that there is to be no judgemental qualitative exercise.” (emphasis added)
On foot of that ruling, a Garda was called by the prosecution to give evidence. Part of his evidence concerned CCTV footage that had been captured outside a specified residential address. The Garda gave a description of what he perceived to be visible in the footage and stated: “We have two individuals in front of [the house].” The defence maintained that it was not readily apparent that there were two persons to be seen. The following exchange ensued with the witness:
Q. Why do you say there’s a second person?
A. If I can loop it then a little bit, when you see the person appear at the window, you can see the shade change on the door. So the door darkens a little bit. So that would indicate to me that there’s somebody there. And also you’ll see a little white dot appear, and if I’m permitted, just right here where the mouse is pointed, I’ll loop it again, you can see a white dot appear. Which again to me would look at something the size of a shoe or that indication. That’s what I would see here. So again the shade change would indicate to me that, yes, there is I see someone at the door there.
At issue in the appeal was whether this evidence was the giving of non-expert opinion evidence by a member of An Garda Siochana and, accordingly, a usurpation of the fact-finding role of the jury. The defence argued that it was for the jury to assess whether the footage showed one or two people as having been present.
The submissions made by prosecution and defence in the appeal, and the reasoning of the appeal court, is set out at paragraphs 94-101 of the judgment (link above). Ultimately the appeal court found that the evidence did not breach any rule against the giving of non-expert opinion evidence, for the following reasons:
“It seems to this Court that in the circumstances of this case the evidence of Garda Jones, concerning what he observed on the video footage, and his perceptions or deductions based upon those observations, was properly admitted as an exception to, and notwithstanding, the general rule that lay witnesses may not express opinions as to a fact in issue. The trial judge had been rightly concerned to ensure that the witness did not cross any line in terms of what he characterised as a ‘qualitative judgemental issue’, and his ruling was careful and considered and, in this Court’s view, unobjectionable. Although the appellants contend that the evidence actually given breached the trial judge’s ruling, we do not agree.
The appellants’ contention is that the impugned evidence represented the Garda’s qualitative judgment that the recording disclosed the presence of two persons outside 531 O’Malley Park at the material time, in circumstances where the recording did not clearly show that to be so. The case was made that the Garda had not just pointed to what could actually be seen, namely a change in the shading, or a darkening, of the image of the door, and the appearance of a little white dot about the size of a shoe, coincident with the appearance of a person at the adjacent window, but had gone further and had sought to imbue these observable features with a particular significance, suggesting that they were indicative of the presence of a second person other than the person at the window.
While this is certainly true, this Court considers that in circumstances where the jury was being introduced to a piece of real evidence that was in a form rendering it difficult for them to discern without some assistance and guidance that which was capable of being observed, and which might possibly provide a basis for inferences, it was within the limits of what was permissible for the Garda not just to point out that which was capable of being observed, but to go further and indicate his perception of the significance of the feature or features to which he was pointing. It seems to this Court that in the circumstances described, the observable facts and the suggested inferences were inextricably entwined and it would have been unreal to have expected the Garda to have confined himself to saying ‘I draw your attention to the change in the shading, or the darkening, of the image of the door, and the appearance of this little white dot’, without giving the jury any indication as to why he was doing so, and what significance he was attributing to those features. Garda Rice’s testimony, to the extent that it indicated his view of the significance of that which he was pointing out, would have served to focus the jury in their enquiries, but would not, in the judgment of this Court, have served to usurp their function in the particular circumstances of this case. In that regard it was a matter of some importance for the jury to understand that the witness was contending that the darkening or shading effect that he claims to have observed was caused by some occultation of the available light, or the casting of a shadow, by the presence of a second person; and that the witness was further pointing to the white dot about the size of a shoe that he had further observed as lending additional support for his conclusion.
The jury would have had no reason to believe that Garda Rice was in a better position than they were to draw appropriate inferences from what was to be observed. However, Garda Rice was undoubtedly more used to viewing CCTV footage recorded from cameras utilising movement activation sensors than they were, and it was unobjectionable therefore that he should guide them as to what was capable of being observed, and as an integral part of that exercise suggest to them the possible significance of it so that they could then focus on the relevant evidence and make their own assessment of it. In circumstances where they were seeing the footage for themselves in court at the same time, and were having pointed out to them that which was capable of being observed, and which was said to justify the inference(s) then being invited, the jury were at full liberty, and indeed were fully equipped, to reject, if they saw fit, the Garda’s perception of the observable facts as being unjustified. However, the Court considers it appropriate to comment that neither appellant sought to make the case that the witness was wrong in his perception, and that there were not in fact two men outside No 531 O’Malley Park on the occasion in question. Though Garda Rice was cross-examined by counsel for the second named appellant it was never suggested to him that he was incorrect. Moreover, there was no cross-examination of Garda Rice on behalf of the first named appellant.”
[It is unfortunate that the decision commences by referencing ‘Garda Jones’ and proceeds to reference ‘Garda Rice’ – it is my view that these are references to one and the same Garda.]
Principles to be Extracted
The appeal court identified the following features of the CCTV evidence that made it permissible for the Garda to give non-expert opinion evidence in this case:
- Garda Rice was undoubtedly more used to viewing CCTV footage recorded from cameras utilising movement activation sensors than the jury;
- The jury was being introduced to a piece of real evidence that was in a form rendering it difficult for them to discern without some assistance and guidance that which was capable of being observed;
- Garda Rice’s testimony, to the extent that it indicated his view of the significance of that which he was pointing out, would have served to focus the jury in their enquiries, but would not, in the judgment of this Court, have served to usurp their function in the particular circumstances of this case.
Principles to be INferred?
One wonders what principles can be inferred from the O’Brien decision.
If, for example, the CCTV footage is recorded by a normal camera (not utlising movement activation sensors) and provides a continuous video feed, is there any basis for admitting non-expert opinion evidence to ‘focus’ the jury on its enquiries? Such footage, in the form of a continuous video feed, surely could not be said to be ‘in a form renedering it difficult for [the jury] to discern without some assistance and guidance that which [is] capable of being observed’.
Subsequent Judgments
Based on a search of the VLex Database there have been no subsequent cases in which O’Brien has been referenced in relation to the admission of non-expert opinion evidence (it has been referenced in cases concerning other topics, such as voice identification, that arose in the O’Brien case).
Questions about the admissibility of non-expert evidence have arisen in a number of subsequent cases revolving around the admission of opinion/belief evidence of a Garda on a bail application (see M.H. v Governor of Cork Prison [2018] 3 IR 146 and C.McD v Ireland [2017] IECA 81) and in a case where it was argued that a jury conviction (in earlier proceedings) was simply the opinion of that jury and was inadmissible (see Nevin v Nevin [2020] 1 IR 626).
‘Colloquial Parlance’
In DPP v McEvoy [2018] IECA 400 the Court of Appeal was concerned with the question of whether Garda evidence was admissible to explain the meaning of a phrase used by an earlier witness in the proceedings. In summary, a witness (C.R.) had given evidence that the accused, in a telephone conversation with the witness, was looking for the (eventual) murder victim (‘Paulie’). In the course of that conversation the accused said that he “nearly got a stripe down his face over Paulie”. The accused did not say how, why, or from whom he had “nearly got a stripe down his face”.
The witness was asked what she understood by “nearly getting a stripe down his face” but said that she did not know.
The prosecution sought to adduce evidence from a Garda as to his understanding of “got a stripe”. The defence objected to this evidence but the trial judge admitted it and the follwoing evidence was given by the Garda:
Q. Now we have heard evidence from a Ms C.R. where she references the term getting a stripe. What do you understand the phrase getting a stripe to mean?
A. To me it means a cut or a slice across the face that leaves a scar.
Q. Ok
A. Similar to a stripe.
The judgment of the Court of Appeal records that the following submissions were made by the parties to the appeal:
“It is submitted on behalf of the appellant that the evidence did not provide a sufficient foundation enabling Garda English to give evidence of the meaning of the term ‘got a stripe’. The appellant submits that this evidence was then used by the prosecution to supply a motive for the killing, which motive was not otherwise present on the evidence. It is further submitted that emphasis was placed on this evidence in the course of prosecuting counsel’s closing speech such that the issue of motive became central to the prosecution’s case. It is argued that this was simply unfair and that the respondent ought to have made clear its intention to rely in this manner on the evidence in controversy. Ultimately, it is submitted that the trial was unfair and the conviction unsafe as a consequence of the admission of the evidence of Garda English.
By way of written submissions, the respondent contends that the basis for the objection to the additional evidence was that the facts surrounding the evidence relating to the ‘stripe’ were unclear. The respondent submits that the evidence of C.R. was perfectly clear and she simply did not know the meaning of the phrase. This evidence was unchallenged by the appellant.
The respondent, in submissions says that the words spoken by the appellant in the course of the conversation with C.R. could amount to an expression of motive and this was indeed argued by counsel in the closing arguments. Finally, the respondent contends that clarification of the meaning of a phrase relevant to motive could not form the proper basis for an objection in fact or in law.”
The Court of Appeal dealt with the issue swiftly in its decision, holding that the Garda evidence was properly admitted:
“This Court is satisfied that the evidence of C.R regarding the conversation with the appellant was relevant admissible evidence. The purpose of Garda English’s evidence was simply to explain the term ‘got a stripe’ which was given in evidence by C.R., in circumstances where Garda English was familiar with the use of that term in colloquial parlance. Arguably, this evidence was unnecessary as a jury might be assumed to have understood the term in the context in which it was used without any need for explanation. Having said that, that the prosecution would, out of an abundance of caution, seek to introduce such an explanation was unobjectionable in our view. The evidence went no further than simply explaining the term having regard to the context in which it was used. We are satisfied that this clarification of the phrase was entirely admissible and that it falls into the category of admissible non-expert opinion evidence.”