Sidebar: video evidence time code

📄 Sidebar: video evidence time code — Tuesday, April 18, 1995

Address:

C:\DEPT103\CRIMINAL\1995\APR\18\SIDEBAR-VIDEO-EVIDENCE-TIME-CO.DOC

TRIAL

▲ Day 59 of 167

◀ Re-redirect examination of Dennis Fung (part 1) Re-redirect examination of Dennis Fung (part 2) ▶

Date: Tuesday, April 18, 1995 • Utterances: 29

At sidebar, Goldberg objected that the defense needed to establish a proper foundation for the time code on a surveillance video before playing it, arguing the code was known to be off by as much as an hour and therefore unreliable. Scheck offered to stipulate on the record that the tape's time stamp was off by one hour (3:14 on screen = 4:14 actual), but Goldberg declined. Judge Ito sustained the foundational objection, blocking the tape from being played.

# 1 (The following proceedings were held at the bench:)

# 2 THE COURT:

All right. We are over at the sidebar. Mr. Goldberg, what is your objection?

# 3 MR. GOLDBERG:

Well, my objection is identical to the Defense's objection to the time coded tape that we wanted to introduce. They have to show a foundation for the time code, just like we did.

# 4 THE COURT:

Uh-huh.

# 5 MR. GOLDBERG:

And in this particular case we know that that will never be done, so they couldn't even do it on an offer of proof, because all we know is that the time code is off by as much as an hour and that there is basically no accuracy to it at all, so not only must they show a foundation for the time code--

# 6 THE COURT:

So why don't you just make a foundation objection?

# 7 MR. GOLDBERG:

What do you mean?

# 8 THE COURT:

Exactly what I said. Why didn't you make a foundation objection?

# 9 MR. GOLDBERG:

Well, your Honor, the evidence code requires that an objection be sufficiently specific--

# 10 THE COURT:

Uh-huh.

# 11 MR. GOLDBERG:

--to put the Court and the other party on notice as to what is being--

# 12 THE COURT:

Then why wasn't your objection "Objection, foundation, time stamp"?

# 13 MR. GOLDBERG:

Because I said "May we approach" and your Honor says what--your Honor, I'm just--

# 14 THE COURT:

Mr. Scheck.

# 15 MR. SCHECK:

Your Honor, I have no, problem since we have already had an evidentiary hearing with this tape and we know what the testimony is, I have no problem eliciting that there has been prior testimony from one of the people in charge of the video at SID that this is off by an hour and that what appears on the tape to be 3:14 is 4:14. If that is Mr. Goldberg's concern, I have no problem making that--this was the testimony.

# 16 MR. GOLDBERG:

I don't believe that that was the--that this man had any foundation for how they even knew it was exactly an hour off as opposed to an hour and fifteen minutes or 45 minutes off and so on or how it was set. It is just clear that I think they probably can run the tape, but with the time code, no. I don't think we will ever be able to establish a foundation for that.

# 17 MR. SCHECK:

I think the problem here, your Honor, is that they--the Prosecution was offering, you know, this tape at the hearing, and put on witnesses to establish that the time was off by an hour. That was the position of their witnesses. Now, it seems to me that we are entitled to do this, because the thrust, frankly, of this cross-examination is that he has definitely changed his testimony--

# 18 THE COURT:

Uh-huh.

# 19 MR. SCHECK:

--on redirect examination.

# 20 THE COURT:

All right. The problem, though, that the tape has a very definite time code and in setting this up you have asked him about the time stamp on it.

# 21 MR. SCHECK:

I will do this--I will do this: My point here is not even--my point here is not even that that should necessarily be taken as the true time, but my point is that he changed his testimony as to the Prosecution in order to allow for this time so--

# 22 THE COURT:

Well, no, Mr. Scheck. The issue is whether or not you get to play the tape with an erroneous time code. That is the issue.

# 23 MR. SCHECK:

No, no. Then we can enter into--I will ask the question or we can enter into an agreement that there has been testimony that the time on this tape was off by an hour and--

# 24 MR. GOLDBERG:

No.

# 25 THE COURT:

All right. Mr. Goldberg, are you willing to accept any stipulation regarding the time code?

# 26 MR. GOLDBERG:

Not at this time. I may be at some subsequent time, because I would have to look at the testimony.

# 27 THE COURT:

Okay. The objection is sustained.

# 28 MR. SCHECK:

Can we play the tape?

# 29 THE COURT:

The objection on a foundational basis is sustained.

Temperature

tense

Key Quotes (4)

Hank Goldberg

We know that the time code is off by as much as an hour and that there is basically no accuracy to it at all.

Goldberg's core argument — the time code is so unreliable it cannot be given any evidentiary weight without proper foundation.

Lance A. Ito

Then why wasn't your objection 'Objection, foundation, time stamp'?

Ito presses Goldberg on the specificity of his objection, signaling impatience with imprecise courtroom procedure.

Barry Scheck

My point here is not even that that should necessarily be taken as the true time, but my point is that he changed his testimony as to the Prosecution in order to allow for this time.

Scheck reveals the real purpose of the tape: not to establish the exact time, but to show the witness shifted his testimony on redirect to accommodate a prosecution-favorable timeline.

Lance A. Ito

The issue is whether or not you get to play the tape with an erroneous time code. That is the issue.

Ito cuts through the legal maneuvering and states the narrow question plainly.

Evidence (1)

Informal

Surveillance video from SID (Scientific Investigation Division) with a time code alleged to be off by one hour — 3:14 on screen corresponds to 4:14 actual time.

Blocked from being played; foundational objection sustained.

Notable Exchanges (2)

Lance A. Ito•Hank Goldberg

Ito repeatedly pushes Goldberg to explain why he didn't simply say 'objection, foundation, time stamp' — Goldberg fumbles the response, falling back on evidence code specificity requirements.

pointed

Barry Scheck•Hank Goldberg

Scheck offers a stipulation that the tape's time was off by an hour; Goldberg flatly refuses ('No.'), saying he'd need to review the testimony first.

strategic

Credibility Attacks (1)

⚔ unidentified prosecution witness

prior inconsistent statement

Scheck sought to play the tape to demonstrate the witness changed testimony on redirect examination to align with a prosecution-favorable time window — the tape's time code was the mechanism for the impeachment.

Objections

1 objections (1 sustained, 0 overruled)

Proceeding 5748 • 29 utterances

Criminal Trial

Department 103