An Interview with Attorney Penny Dean
Interview by Gila Hayes
Cell phones, video, social media, YouTube and amateur video aired regularly on TV news casts all contribute to familiarity with individual use of videography, sometimes to the extent that we forget to ask if video of a critical incident is legal, advisable, or even the response of a reasonable person believing him- or herself in danger of physical attack or death. The prevalent belief is that because “everyone else video records anything they want, doing it is no big deal.”
New Hampshire attorney Penny Dean is a proponent of video with audio used to create a record of events but warns that its use in defending against criminal charges may not be a foregone conclusion. She observes how little blackletter law specific to video recordings exists in the self-defense context and points out that much of the law about permission to record was written for audio recordings, not videography. Whether or not a video of one’s self-defense incident would ultimately help or harm arguments about justification is extremely situational. She stressed that any benefit would be contingent on the client’s phone having large enough memory capacity to record and store the video, plus the phone must be consistently password protected so the video could be held back from initial police investigators for attorney input on its appropriate use.
In other words, video provides no quick and easy answers to proving justification for using force in self defense! This complex concern was the topic of an interesting conversation I recently enjoyed with Penny, in which she expressed concerns about how a defense attorney should handle client-created videos in a use of force case. I asked her permission to share our discussion because I believe members will find her observations, warnings, and suggestions for further research informative. She agreed to “go on the record” with the caveat that any of the information she provides must be checked by the individual with his or her own local attorney due to variations in the law from one locale to the next, and applicability from one set of individual circumstances to another.
We switch now to our familiar question and answer format to preserve the tone of this conversation.
eJournal: [Laughing] I will start with a question I ask all the people I interview: may I record this interview? Considering our topic today, that’s rather amusing.
eJournal: But the serious side, I think, is just how many armed citizens ideate making video of a critical incident with the expectation that the video record will save their bacon by proving their actions justified. In previous conversations, you’ve impressed on me the tremendous number of related concerns we ought to consider before whipping out a cell phone and hitting “record.” Can we explore the overlap between what is legal and what is judicious? When do we need permission to record, and when is permission not necessary?
Dean: Although I do not believe courts have enunciated a standard in this context other than “public place,” I would argue that in order to be on solid legal ground for obtaining consent to record from an adult, the standard for video and audio recording permission is a lot like the standard for pleas. You have to show that the agreement to plead was knowing, voluntary and intelligent. I have a couple of cases right now, where the plea was not knowing, voluntary and intelligent, and I will likely be asking the court to undo these people’s pleas. So, applying that to our topic today, if you had called me – and this wouldn’t happen because, I am not a drinker – but if you had called and found me stone-cold drunk and asked permission to record, I could not have given permission intelligently, because I might not have understood what you wanted to do with the recording.
Public officials, whether in uniform or not, can generally be recorded in public performing their public duties at all times. What may become a sticky issue is what is public? This is not always an easy answer. Is the back storeroom of the store where you work “public?” Is one of the many treatment rooms at a massage therapist’s office a “public place?” What about the employee break room at TJ Maxx? What about an orthodontist’s office where patients are treated in an open room with a circle of patients in chairs placed in a semi-circle next to each other? One need only Google self-defense shootings to see that it is possible you may have to defend your life in any of these places.
Much of the law pertaining to audio recordings is found in federal law, 18 U.S.C. § 2511 and pertains to the interception and disclosure of wire, oral or electronic communications being prohibited. Now, before all of you budding Perry Masons pipe up, those terms are defined at 18 U.S.C. § 2510 with the issue in this context being –
“(2) ‘oral communication’ means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication…” 18 U.S.C. § 2510(2)1
How many times have bystanders all taken out their phones to record an unfolding event? Why aren’t those individuals facing criminal charges? Likely because they are not trying to enter those recordings as a defense exhibit at their trial!
There is wiretapping vs. eavesdropping; there are one-party consent states and all-party consent states. Both federal and state law may apply. Many state law provisions were enacted in the domestic relations context with custodial combatants recording the conversations in hopes of getting a tactical advantage, but the law still applies to recordings of “conversations.” So, if you think that the drunk at the bar that is threatening your friend isn’t having a “private conversation” with his companions…well, a judge may decide that it was private when a defense lawyer tries to introduce the recording in your friend’s self-defense case.
That’s a long-winded answer to your question, but think about it: you’re walking down the street and have to pass by some people (those over 18) who are so blown away that they could not, as my dad would say, find their butts with both hands. You sense there is going to be trouble so you ask, “May I record you?” and they say, “Yes.” I think the court is going to find that their permission was not given intelligently, because they were not capable of giving consent at that point, I think you need to ask, “Where could recording create more problems?” Remember, a minor cannot give consent: they are presumed not to have the capacity to do so, but determining who is over 18 is a landmine, just ask those who work in the shop n’ robs who must ask for ID to sell cigarettes.
eJournal: One value of hashing this out with you is your experience defending people who inadvertently made mistakes. You can warn us about where the dangers lie. We try to avoid making mistakes by reading statutory law, but when I tried to research the question of legality of recordings it seemed to me that much of what I was reading addressed audio recordings. Do you think the existing law is more heavily weighted towards audio than today’s more common video with sound?
Dean: Absolutely, I do think the law is more heavily weighted toward audio but that is precisely where those who make “video” recordings that include audio get in trouble. Many stores have signs at the entrance reading, “Activities are audio and video recorded.” The keyword, by the way, is “recorded” instead of “monitored.” The words matter, because monitored is much different than recorded.
So, the sign has put you on notice that you’re being audio and video recorded. If you do not want to be recorded, you need to remove yourself from the premises. If you walk in, you are on notice that you will be audio and video recorded, but that does not mean that you expect to be recorded in the “public” bathroom or the “public” changing rooms, trying on clothing. Just like when you telephone your credit union, and they say, “This call will be recorded for quality assurance,” if you stay on the phone, that is considered implied consent. At the store, because of the sign, I know if I go inside, I will be audio and video recorded. I gave implied consent when I went inside.
As you go about your public life – in saying “public,” I am not talking about in the men’s room or the ladies’ room – you have got to expect to be recorded. If you go to any major city, there are cameras everywhere. Even go to a doctor’s office: there will be audio and video equipment running. Their argument is that people have to expect to be audio and video recorded, but especially people who are public servants to whom we are paying our tax dollars have to expect to be recorded, because it is the modern way of holding them accountable.
eJournal: Moving outside and beyond a privately-owned store, let’s imagine the recording was made in the city park. Correct me if I’m wrong but isn’t there a presumption in a public place, that I might be photographed or recorded; I don’t have the same privacy rights as in my home or office.
Dean: Yes, in many, many states the law allows people to photograph or record others in public places. You are in the city park, and there is one bench on the far side of the park, isolated from the other benches, and you see a couple having a very intense conversation. The conversation gets louder and angrier. Either being voyeuristic or gallant you think you are going to come to the assistance of the female and want the recording to back you up in case things go South (they will), so, you set your phone to record “movie,” clip it to your pocket and walk over. Many of these scenarios require a gamble and you’re playing for all of the marbles.
The law is only going to be enforced in cases where the recording is problematic for one side or the other. It’s a little different, but there are states where it’s illegal to audio record someone coming into a store, but the law is not enforced so people act like it is legal.
A related example: before it was specifically legal to record law-enforcement officers in the performance of their duties in New Hampshire, I had a client who audio and video recorded a law enforcement officer who had stopped them. I was allowed to show the video to a number of people for evaluation, and every single one of them said the same thing I had said: “Oh, my, the officer is in a ‘ ’roid’ rage.”
Because at that time the law about recording police was not clear, the client did not want to take a chance, and we never used that video. I think using it would have made a night and day difference, but using it was not my call to make. Shortly after that case, the First Circuit Court of Appeals came down with Glik v. Cunniffe, holding that the private citizen has the right to record video and audio of police carrying out their duties in public places.
eJournal: That raises another question about recording after self-defense incidents. Will the responding officer tolerate a suspect recording their interaction with him or her? Are there different rules about recording police?
Dean: There are different rules about recording police, but at least from the First Circuit Court, there is good news. We have broader rights when it comes to videoing public officials in the performance of their duties than we do for private citizens. The public policy argument is that law enforcement expects to be viewed by, and accountable to, the public. The courts have said – only half sarcastically but truthfully – these days, even five-year-olds have smart phones, for goodness’ sake.
A “fight” avoided in any arena is a fight won, meaning if the officers do not know you are recording the encounter, they cannot tell you to stop recording. Rather than holding your phone in front of you clearly recording, buy a $5 clip and clip the phone on your belt or shirt pocket and, where legal, let it record just like a police body camera does. Avoiding some of the uneducated police, who will sometimes demand, “Stop recording us” or “Shut that off,” if I were in that situation, I would ignore the police and keep recording. That is a very fact- and situation-specific decision that should be made after consultation with local knowledgeable counsel.
eJournal: If I understand, the expectation of being recorded broadly applies to citizens when in public places, so if we are queuing up to board public transit, for example, most would expect to be on camera. Presumably, all those cameras are intended to discourage or record crime, and are, for that reason, allowed. Does that permission extend to the private citizen who would video an incident for the same reasons?
Suppose I become fearful in the early stages of a confrontation and a companion records video as I try to resolve the problem. Realistically, what should I expect to be able to accomplish with the video? Show it to responding police and say, “Look what I faced?” Conversely, don’t I need to be careful not to admit to committing a crime of which I was not aware through the video’s documentation of what happened?
Dean: As you know, I often say prior planning prevents piss-poor performance. Something you have long recommend is that if you are going to carry a firearm or other self-defense weapon you should already have an attorney. You should call your attorney and ask them these questions, so that when the time comes, which is going to be stressful enough, you already know what you can or cannot record.
I do not claim to know what is legal and what is not legal in the many states; I don’t know everything the various circuit courts have decided. Here is the thing I do know: when any person sees someone take out a cell phone and pan the crowd, they are at least videoing and potentially audio recording whatever is happening. The argument has been, and I am comfortable saying the argument would be, if you do not want to be audio or video recorded, you had better get your body out of the area.
When people see professional photographers setting up their bulky tripods and cameras and start taking pictures, then later complain, the courts have said, “Listen, anybody who has not been living under a rock for the last 30 years who sees photographers with cameras pointing in your direction, know if you do not want to be photographed you need to leave.” Of course, the courts said it a little more judiciously, but that is the general consensus.
There is another way to present this. If a person thinks there is going to be a problem, they might say, “I am getting on my phone and I am going to call the cops, and then I am going to video this and if you have a problem with being videoed, you should leave.”
eJournal: Presumably this is taking place while you are trying to get away.
Dean: Yes, and here is something else I would do. There is an organization called the Free State Project. For a period of time, 2006 to about 2018, they provided a database to which you could upload and preserve the recordings of rights violations and emergency encounters. (See https://www.youtube.com/watch?v=FgoBFM8echk) and I would presume that the proliferation of smart phones and expansion of recording laws made their upload site (called PORC 411) at $15 per month less desirable so it no longer exists.
eJournal: Nowadays, we have parallel concern about having video destroyed that involves an entirely different situation. The Internet is full of very carefully edited videos by BLM/Antifa rioters. While your concern entails confiscation by police, do you really think that a victim caught by a mob, whipping out his or her phone to record their version of events is going to be allowed to leave with their phone? I expect the mob would go to some lengths to destroy the phone and the video.
Dean: That’s why I thought the Free State Project’s PORC 411 was a brilliant idea. By archiving that video immediately to their database, the images would not be lost.
eJournal: Perhaps Parachute could do the same thing for personal security. I do worry, though, about how much tech we can realistically manage while facing a life and death threat.
Dean: I want to address the planning that has to come before the threat. I’ll make a joke about a stereotypical old farmer who, although he lives in the country, is realistic about what to expect when he goes to the big city. I tell that guy that he needs to buy a smart phone, and he looks at me and says, “Yeah, right, are you crazy?”
I say, if you carry a gun and you do not carry a smart phone, you are crazy. There may be a day that you have to defend yourself. You don’t have to like the smart phone; you don’t have to use the smart phone; you do have to carry a smart phone and you need to know how to use it. If you need it, you don’t want to be fumbley bumbley. You have to know how to use it.
One guy I said this to asked, “Well, how much does a smart phone cost?” I asked, “How much is your life worth?” A good phone with lots of memory may be the same price as a gun, so go buy a phone and be quiet about it.
eJournal: A smart phone costs a fraction of Penny’s billable hours if she has to defend your use of force with conflicting he-said/she-said witness statements that no one can prove.
Dean: [Laughing] That is exactly right! I tell them, just go buy a smart phone with the biggest memory capacity you can afford and you will thank me someday. The second thing you must do is password protect that phone. Now, I understand that when you need it in a hurry, you will have to use that password, so let me tell you why you want it password protected.
If you are involved in an altercation, the cops are going to take the phone along with everything else. You want it password-protected so that nothing accidentally happens to the video and no one sees it before you decide they should. There are a million reasons you want the phone password protected. So, that is task number one, get the phone and make it password protected. Is figuring out how to do that a pain? Yep, but you should not do anything with it until it is password-protected.
It takes about five minutes for the police to prepare a subpoena for a person’s phone or RING security system records (maybe an hour for a search warrant) and a faxed subpoena or court order and voilà the phone companies and RING hand the police your records on a silver platter within minutes sometimes.
If you took 360-degree pictures of the scene rather than video (which is a safe idea if you have not done your homework on a given State’s recording laws or are traveling) and you have your phone set up to store your pictures in your phone’s cloud (something I NEVER recommend) the police can get your pictures, too. You would be shocked to see all of your data given to the police in an electronic drop box within minutes–including whom you called, when you called, copies of all your texts. Think about this before you text about the incident. If you think you can delete the texts, that’s a nonstarter. The phone company still has them, trust me.
Get the smart phone, then start learning how to use it and practice in the dark. How many people in the military had to take their firearms apart in the dark and put them back together in the dark and were made to do it 4,400,442 times, right? That was purposeful – it was part of their training, education and experience. In a dark and a panicked situation, you have got to know how to unlock your cell phone and start recording video and audio. That has to be fluid and easy, so you have to practice. That is just as important as shooting – and I am really serious about that, because there are two kinds of survival.
With all due respect to the countless individuals who have dedicated their lives to teaching others how to physically survive and avoid lethal encounters, anybody can teach somebody who wants to learn how to shoot. Teaching them to survive the legal aftermath is harder, and that is what I am doing. Buy and learn to use a smart phone, talk to an attorney and learn if you can legally record audio and video in your jurisdiction. I don’t claim to know all the answers because, as I said, the law may be different in different jurisdictions. Our readers are going to have to check with lawyers in their state to know what they are legally able to do.
When you travel, keep in mind that what is legal can change in different jurisdictions. If it turns out it is illegal to record audio, video is still better than nothing. But you need to know, so you check it out before you go. Before I go anywhere, I check out the jurisdiction’s laws. If you’re an armed citizen, figuring out what’s what is part of your job.
eJournal: Returning to our “what if” scenario in which you took video of threats, your escape or your defense. Do you turn over the video to police investigators? Should you show the video to your attorney? In earlier conversations, you mentioned that video that shows wrongdoing puts the attorney in a terrible quandary. Will my attorney be willing to view that video?
Dean: I would hope to goodness that you have had time to email a link to the video to your attorney, to a drop site or to yourself, so that it doesn’t get lost if the phone is taken by police. You should never, ever, ever tell the cops that you video-recorded the scene before you talk with an attorney. I am not suggesting you lie, never lie, but expect to be asked if you took video if anyone saw you recording and THEY tell the police. If asked, my answer is, “I want an attorney and I will remain silent until one is provided.”2 The United States Supreme Court has, in 2012 said that in order to have the protections of the Fifth Amendment you must TELL the police you are remaining silent. Repeat as necessary! Ever see a two-year-old that wants ice cream? Nothing will dissuade them, “I WANT ICE CREAM!” That is how you must respond to any police questioning in that instance. Do not lie, but do not answer the question.
Now, let’s say you had not spoken with an attorney so you don’t know what you can and cannot legally do. When you do speak with an attorney, you need to phrase your statement hypothetically, when you say that you took the video.
eJournal: What do you mean?
Dean: Let me give you a parallel example. I work with people all the time who have lost their gun rights and many times I am successful in restoring their gun rights. Sometimes deliberately, and sometimes accidentally, these people did not know that they had lost their gun rights, so they have been buying guns and shooting and have a house full of guns, ammunition, and if they’re a reloader, there are primers, powder, bullets and cases, too.
They want me to help them, and I say to them, “I want you to listen to me very carefully. I cannot aid or abet you in breaking the law or hiding the evidence of a crime, but I will give you legal information. I will say, listen for a minute and DO NOT tell me anything about what you may or may not possess. I do not want you to tell me anything. If you have hypothetical questions, I want you to ask me.” I am trying to get their rights back to put them on a legal footing, but meanwhile they have a whole bunch of stuff that could, first of all, derail my efforts and send them back to jail.
eJournal: Forgive me for asking, but if revealed in court, would that strategy hold up?
Dean: [Soberly] It is the best I can do. I have never had to test it, and this is probably where I go out on a thinner limb than most lawyers do, but think about this from the client’s side—from the perspective of one who truly did not know that one of their convictions took their gun rights away, because their previous lawyer didn’t do their gol-darned job, right? This person did not know! Their lawyer did not explain all of the consequences of their plea. Think about this poor person who has come to me and said, “What am I going to do with all of my guns and all of my ammo?”
Am I supposed to just wash my hands and walk away? I have to help them somehow. If I tell them, “Turn yourself and your guns in”3 they are going to go to jail forever and are not ever going to get their gun rights back. If they have come to me for help, and I hurt them, I wouldn’t feel very good about that. How could I treat people that way? Your question is not wrong, but what else can I do?
eJournal: Let’s apply that to the topic of the videos that we take to our lawyers and ask, “What should I do? I may have done something while being attacked that now, upon calmer reflection, puts me in a very bad light.” What position have I put the lawyer in by admitting to having evidence that shows I did wrong. Are you duty-bound to rat out the client?
Dean: Two things: I cannot advocate for destruction of evidence. That is what it would be if I told you to erase the video. Instead, I think you should tell the lawyer, “I know there are different rules in different jurisdictions. I have not done the research, so hypothetically, if I had made a video, would you want to know about it?” That lets the lawyer determine how to proceed.
There’s a second thing to consider: if there is a shooting, there is likely to be a civil suit later and a video would be prime evidence in a civil case. It would also be evidence for the criminal case, but you can’t have it both ways: you cannot hide it in one trial and disclose it in the other. There are a million different things you’ve got to know and that is why I say it is best if you talk to an attorney.
I would like to be more helpful, but the laws are different in different states, and about the best we can do in this interview is to raise questions to which members need answers from local lawyers. Sometimes it is hard to know what is the right question that you need to ask.
eJournal: An attorney’s time is expensive; we don’t want to waste it on irrelevant chatter. Members need to distill their questions to the most important points. What questions about cell phone video do armed citizens need to ask attorneys?
Dean: Make sure the attorney you are asking shoots, carries, and understands and handles self-defense cases. Ask them –
- Can I record both audio and video without the permission of the parties being recorded?
- If not both audio and video, can I record video only without the permission of the recorded parties??
- Give me examples of public and private places. Tell the attorney what you do for a living, places you go and examples of places where you might have concerns, your hobbies and to where you travel for real world, practical examples of places you may be.
- Can I video AND audio record the police and other public officials while on duty (so long as I am not in their way) or must I ask their permission first?
- Are there any places or people that I am prohibited by law from recording? If so, list them. (Ask for citations to the law, as well. You can never be too educated.)
- What are the differences (if any) in the laws for video vs. video and audio recording of people without their permission?
- What do I say if the police ask me if I recorded something?
- What do I do if the police want to take my phone?
- What do I do if the police demand I give them my password or unlock my phone? (If the attorney tells you to give up your password, I say seek a second opinion.)
- What would YOU do if an altercation broke out and your friend was involved, should you video or not?
- The kinds of questions I would ask are a little like law school exams, where they give you a little story then ask what torts apply and what criminal laws may have been violated. So, a man might ask: “I walk into the men’s room and some guy I am having a dispute with comes in after me. A cop is also in there, so do I press the record button on my smart phone (carried unobtrusively on a belt clip) and video the dispute?” I say in New Hampshire that you very carefully weigh the risks (RSA 644:9 Violation of Privacy), NOT recording anyone’s lower body parts and focus on the threat. You may be charged with a criminal violation of the “bathroom law.” Worse yet, would this mean that since you were allegedly breaking the law that the court will [wrongfully, in my mind] refuse to let you raise the affirmative defense of self defense? Of course, you should always try to get out of where the dispute is happening, but the main question is when it is legal for you to record video? Fact patterns like this are fraught with legal peril and make case law (both good and bad), something you do NOT want to do.
eJournal: It is very circumstantial, and no one-size-fits-all can apply. The armed citizen has got to be thinking all the time, but unfortunately, people think more clearly after the stress abates, and so I must ask if you had video you feared portrayed you in a negative light, would you even mention it to anyone?
Dean: That is a good question. [Pauses] I don’t think it is illegal for me not to volunteer it, because I have a Fifth Amendment right. I can’t lie about it, so here’s the problem: I never presume that the other side is stupid! They may be less skillful, but I never presume that they are stupid. That is why I am always prepared.
If it is a self-defense case, as a practical matter, we are going to need to take the stand. If we are going to raise an affirmative defense, we are going to have to testify. If I was the prosecutor, I would ask everybody who took the stand for the defense, “Did you take any audio or video of the event?”
eJournal: Oh, dear, you are under oath…
Dean: You cannot lie, so you tell the truth. If the answer is yes, the prosecutor is going to ask for a sidebar and ask the judge for a recess and an order to turn over the video, because, “We ain’t seen it; we didn’t even know it existed until right now.” Depending on the reciprocal discovery court rules the defense attorney is now going to have a very, very bad day, which may affect the defendant’s day.
eJournal: With the prevalence of video these days, that seems like a question we really ought to expect.
Dean: It is a very reasonable question that no judge would shut down. Judges won’t let you go on fishing expeditions but asking if there is video is a reasonable question. If I was the prosecutor, my next question would be, “Are you aware of any person, whether you know their name or not, who took any audio or video of the incident?” because if you were traveling with family or friends and said, “Passenger, start taking a video of this.” Later, you determine, oh, no, I should not have done that. But you’ve already done it and it is on video, right? The prosecution always makes a big deal that if the witness is an employee, a brother, sister they’re going to lie for you, right?
If I am the prosecutor, I am going to ask you if anyone took video, and when you say “Yes, my mother,” I am going to ask if you turned it over to the prosecutor. I will ask, “Did you tell your mother not to?” That is a bad question to be asked. If you asked her not to show it, you’ll be asked, “Did you tell your mother it would be better if people did not see it?” The prosecutor can go on and on and on and unless you are really careful or truly said nothing about it, I think there is going to be a problem about withholding evidence with very serious sanctions. You have got to be ready for that.
In cases like this, as the attorney, I have got to really think things over and sometimes have my whole team look at it. Sometimes my investigator, my experts, and I all look at the same piece of video, and each of us sees it differently. When that happens, we decide as a team, does the good outweigh the bad? Discussion is good and healthy. I don’t want someone who always agrees with me. All of us have different backgrounds: I even have a therapist I sometimes ask to review things for clients. Sometimes, I bring in all of us to discuss things because we will see different weaknesses and we want to know what those are now, not when the prosecutor asks a witness about them.
If there is video, typically video from discovery from the State, we need to go through it very carefully, because if we don’t rip these things apart, trust me, the other side is going to, and if they do, the middle of trial is a really bad time to be figuring out what to say.
eJournal: Let’s imagine you had client-created video you thought was misleading and would only create misunderstandings about what took place. You keep quiet about it and your client is found not guilty. Why might you want the video for the civil trial but not for the criminal trial?
Dean: In civil and criminal cases, we have different standards: beyond a reasonable doubt versus a preponderance of the evidence. You have the same evidence, if you will, but put before different triers of fact. You also have a different evidentiary burden. The classic example is OJ Simpson who won his criminal case. Not guilty. They couldn’t make beyond a reasonable doubt. Then, he lost the civil case and I think the judgment was $33.5 million. Both juries looked at pretty much the same evidence, but the facts came up much differently. When you look at that, you have to ask, “Why did that happen?” The answer is, there were different burdens of proof.
eJournal: If civil litigation follows the criminal trial, and you then decide the video supports your side of the story and you trot it out, do you risk punishment for withholding it in the criminal trial?
Dean: Yes, in New Hampshire, we have reciprocal discovery. Depending on the facts I may be forced to disclose the video. That alone is a good reason to have that mega memory card and store it all on your phone, password protected, so it is controlled by you.
eJournal: If you decided to reveal the video tape so you could beat the civil litigation, is there any risk that the state, watching the civil trial, may say, “Whoa! We were not told about this! We are going to go back and re-file criminal charges?”
Dean: I can’t imagine how the state could retry the case; it would be double jeopardy. I have never had a case like that, nor am I aware of one. If I did have that problem, I would help the client find a different lawyer to handle the civil case. While I cannot imagine that would pass double jeopardy, you can bet they would find something with which to charge the client. Depending on the facts, the lawyer’s license to practice law could be in jeopardy, sadly the State is virtually bulletproof from Brady violations. Brady v. Maryland, 373 U.S. 83 (1963) requires prosecutors to disclose materially exculpatory evidence in the governments’ possession to the defense. The definition of “materially” and “exculpatory” is the subject of many multi-volume legal treatises. There is a double standard: a defense attorney would be crucified. This is why I say, as a practical matter, you have to make a choice of whether you are going to use the video or not and do a very careful and thorough analysis as to whether it must be turned over to the State regardless.
I have never had this question come up in the self-defense video context; it has come up in marital cases. Husbands and wives, and people who have lived together, regularly record phone calls which is illegal in New Hampshire without two-party consent, so that is different than the rules about video.
I don’t do a lot of marital cases as of late, but if I take one, I start my conversations with the client, by saying, “Let me explain to you what is illegal. Do not even think of bringing me something illegal, because I will not use it and you will put me in a very bad position. If you are even thinking about recording phone calls, etc. without the other person’s consent, don’t think that under any circumstances I am going to use it, or would maybe use it. I won’t.” Usually that stops them.
Now, there is a way that I tell them that they can get around it legally. Think about this: what if every time you called me – I would never do this – but you called and heard, “Hi, this is Penny, and because I am so tired of having these pissing matches over what was said, anything you say during this phone time could be monitored and recorded, and by staying on the line, you hereby consent.” If the person stays on the phone after that statement, they’re presumed to have consented. About self-defense video, if you decide to take out your phone and tell the crowd, “I am calling 9-1-1 then recording this,” anybody who stays is now put on notice they’re being recorded. Terminology may be very important here, if you say VIDEO vs. “record,” one could reasonably believe that VIDEO does not include AUDIO and you want permission for both. I think the other thing that it does is sometimes it creates a sentinel affect. Being put on notice can wake people up and change their behavior.
eJournal: I’d agree with you if you were dealing with sane people. I am not sure it would work against a mob, for example.
Dean: I agree, I don’t think it applies to mobs at all; they would be more like, “Yay! We are going to be famous on YouTube and on Facebook!”
eJournal: Outside of such explosive contexts, let’s explore your decisions about video and audio recording self-defense incidents. How extensive should that video be? Are you trying to capture as much of the buildup, perhaps verbal conflict, precursor situations, the actual violence and your counter-violence, the aftermath, the police response? There are all kinds of questions that apply to each element of a situation.
Dean: The minute you think there is going to be trouble in paradise you need to start videoing. Of course, that takes second place to trying to get out of there! Don’t get caught up trying to get it on video. But here is something I have never seen done, and I would like to THINK it might work, or at least not hurt: a video letter to my lawyer, written explanation to follow, that is what you start the video with. Communication to your attorney is privileged, and modern forms of communication include e-mail, texts, Zoom call, FaceTime and even arguably a video with accompanying verbal letter or a verbal or written letter to follow.
But let’s say you have a pretty good idea what is going to happen, but the crowds are super thick and you are having trouble getting through them. I would have the smart phone out and recording video because the video shows also that you are trying to get out of there, but you can’t get through what amounts to a wall of people. The video will show that you are doing the very best you can. It could also show witnesses you might not see. As we all know there are more ear-witnesses than eyewitnesses and this “preserves” the scene. It also may catch license plates of ear witnesses that do not want to be involved, for PI follow up.
eJournal: What if responding police tell you to turn that darn video off?
Dean: In the First Circuit you do not have to, so long as you are not impeding the police, meaning you are several feet away and not interfering with police movement. That question was settled in the case Glik v. Cunniffe, in which the person continued to video. Now, as you know, you have to follow lawful police instructions, and if you choose to, you sue them later. The reason you do not have to stop recording is the whole purpose of recording the police is to document what the police are doing and saying.
Think about this: by the time the cops get there, this person has likely stopped doing whatever they were doing. Then I might choose to stop videoing, and here is why. If I stop, then my phone goes back to be password protected, and police cannot get in it. I don’t want them in my phone because then they are going to know all of my contacts and who I am calling. More importantly, the police are now likely “detaining” you (not “arresting” you, as that is when the constitutional rights such as a Miranda warning, time for arraignment and other procedural time clocks start ticking), and they have all of your contacts to call and interview, asking them questions about you after telling them a slanted version of what happened, to ask about “bad” things you have said or “bad” things they think you are capable of.
I’m doing a case right now that brings another point to mind. If you have an incident, and you think an entity or somebody else has video, you need to get busy preserving that video right away or it will get lost. Often for private security video, the recycling happens within 24 or 48 hours, three days, seven days, and the part you need will be recorded over. You’ve got to get that video preserved right away. You need to understand how important the video can be, and you must document putting the correct person in charge of the video on notice to preserve it.
eJournal: I guess that serves as a reason for taking the video yourself if you can do so legally and safely. I have a question about introducing video as evidence – whether that video came from the 7-Eleven security system, from a by-passer’s cell phone, or you took it yourself. Can the prosecutor say, “Well, you only videoed the part you wanted seen. You started the video after you had already hit the other guy.” Or, if you have been in possession of the video, so it’s not part of the police evidence, it could be said, “You had the ability and the time to delete part of that video that you didn’t want anyone to see. This video does not prove a thing.” What does the attorney do?
Dean: Almost all of those kinds of issues are raised pre-trial during evidentiary hearings. You have given the other side all the stuff. So, the other side has the stuff, and they have made pretrial motions to exclude, because of this reason or that reason, but sometimes the judge just won’t listen to you. Maybe the judge has said, this is the way we are going to do it you can like it or lump it. As to the allegation of altered video, first, even if the Pope or the prosecutor’s own mother was there as a witness, the prosecution is going to try to throw dirt on the video; second, I have great expert witnesses, the techno geeks I call them. I might have my expert examine the video as a prophylactic measure before I turned it over to the State. I cannot imagine any judge would allow the prosecutor to make such an allegation at trial without expert testimony from the State, which would have been disclosed pretrial.
eJournal: If you’re at one of those hearings fighting to introduce video that you really, really want to show at trial, how do you argue to get it admitted? What do you say? What persuades the court to see your side?
Dean: For me to get it admitted, number one, the video has to be genuine, with a clear chain of custody, if you will. I have to know who took it, when they took it, on which device they took it, and that it has not been altered or edited in any way and that it is relevant. Hopefully, the person who took the video is not a person with credibility issues. Number two, the court will ask if it is confusing or misleading to the jury. Let me tell you why trial attorneys have to be able to think on their feet. Some judges will say, “I am not going to decide issues regarding video admissibility until the time comes in the trial. I am not going to give a ruling until I see how the trial is going, how the jury is responding and what is happening.”
The defense attorney has got to work out many different ways to respond, based on what the judge says. You can stomp and scream and yell, but the judge’s answer will be, “Move on, counsel.” From my perspective, the bottom line is that we have got to be able to plan for all of those possibilities.
My clients like to very actively participate in all aspects of the trial, so they will ask, “What’s going to happen?” I believe that I allow my clients to make many more trial decisions than most lawyers do, but I tell them, “You have to give me all of your decisions now, because when the judge rules, he is not going to give us time to have a two-hour meeting to decide what you want to do; you need to have thought this over. We will have to decide right then.” However, I always reserve the right to override them in tactical trial decisions. I explain they hired me for my knowledge and experience and if they disagree, they can fire me.
eJournal: One last question. When we research laws affecting legality of recording, we often see Federal statues cited. Do Network members need to be concerned about the Federal rules about making recordings?
Dean: Yes, they do, but understand that Federal law is about wiretapping and eavesdropping, and as with everything else in the law, we consult the statutes, case law and Black’s Law Dictionary and not Webster’s dictionary, by which I mean that seemingly common words do not always mean what you might think they mean.
I am presuming in our conversation, that none of this topic pertains to recording telephone calls. We are discussing incidents that are happening in person that we are watching and seeing and hearing. For that reason, the big question is what is public and what is private? Two very simple words with enormous, life changing implications.
Here, though, is another question that I want you to think about. During COVID-19, we held a tremendous number of Zoom-type hearings. How often does what people say in a meeting get out of hand? With people in separate places, what if one is video recording the screen of the Zoom meeting on a smart phone? We had Zoom-type trials and hearings with courts issuing rulings of what could be recorded of the recordings.
What about the political meetings that have been held via Zoom? What if one person is recording all of it on their phone or with a video recorder pointed at their monitor? It would be easy to do because no one could see you.
eJournal: It is a brave new world, and we have to feel our way through it.
Dean: I wish I could find a website with reliable, current information about what’s legal from state to state. The way I like to use those Internet sites, is to be able to say, “Look, I don’t claim to know it all, and this website also may not be the be-all end-all. Do not rely on it without asking an attorney, but use it for guidance.”
eJournal: Some of the websites you and I checked out during our initial chats on this subject didn’t distinguish between the current information and what had been posted many years ago.
Dean: Without endorsing the website, https://www.dmlp.org/legal-guide/recording-phone-calls-and-conversations has a January 2021 date stamp, but I am also going to give you a general guideline I rely on. When I find a law review article that was published within the past 10 years, I consider it current. In law review, five years or even 10 years is up to date in many areas of the law.
I think the question about when it is legal to video, is going to have to be treated a lot like the answers we give when people ask when it is legal to shoot. We are going to have to give people principles as a framework through which they can analyze their questions.
eJournal: Any kind of adult education, in my opinion, has to be principle-based because we cannot know what circumstances an individual who has read and absorbed these ideas may encounter. If we have done well, we hope to have provided principles the reader can encode into their decision-making, and then, spend time working through what is right for them to do so they have a pre-built foundation from which to generate reactions if they are ever attacked. Thank you, Penny, for contributing your knowledge and wisdom to that educational process.
1 18 U.S.C. §2510 et. seq. For example of a state law, see New Hampshire RSA 570-A:2 (I-a).
2 https://www.supremecourt.gov/opinions/12pdf/12-246_7l48.pdf Salinas v. Texas.
3 Charges under various provision so 18 U.S.C. provide for a charge for each gun and each round of ammunition with potential penalties of many years per charge.
Attorney Penny Dean is a well-known name in Northeast U.S. gun rights litigation, and has been a Network affiliated attorney since 2008. She practices law in NH, ME and MA and is admitted to all federal and state courts in those states as well as the First Circuit Court of Appeals, the United States Supreme Court and the D.C. Circuit. In addition to her busy law practice, Penny is a frequent media consultant on gun rights and firearms issues, and is well known by students of firearms courses at which she teaches the legal segments of the instruction. Enjoy her blog posts at http://www.pennydean.org.
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