In his song Somebody’s Watching Me, Rockwell describes himself as an average man with an average life, who longs to be left alone in his average home. He can’t shake the feeling that someone is always watching him, hesitant to even shower “Cause I might open my eyes and find someone standing there.”
Being surveilled is unsettling, but the ordinary life of a Petitioner is a fascinating area of workers’ compensation and can have a significant impact at any trial. When surveillance is introduced for the first time at trial, gut reactions of “feeling violated” come into play, with objections flying fast and furious. When the rules of evidence don’t immediately come to mind, the default objections are usually foundational objections or hearsay objections. An attorney may also allege “unfair surprise” and argue that surveillance shouldn’t be introduced on this basis.
Beyond hurt feelings, there is little basis to disallow the introduction of surveillance video at the time of trial, and every effort should be made by a defense attorney to get those videos into evidence. Also, if a Petitioner has nothing to hide, objections to the admission of the footage can itself shed light on a Petitioner’s veracity.
Workers’ Compensation Takes a “Mellow Fellow” Approach to Chain of Custody
Unlike in a criminal case, chain of custody requirements are more relaxed in workers’ compensation. It is not necessary to call every individual who accessed/touched/or processed the surveillance, and it is not necessary to exclude every possibility that the surveillance has been tampered with. People v. Winters 97 Ill. App. 3d 288 (1982). Chain of custody is sufficiently established when the condition of the evidence described matches the description of the evidence when examined, even if links are missing in the chain.
In Richard Verklan v. Ahren’s Concrete Paving (05 WC 19198), the Arbitrator refused to allow surveillance videos into evidence, due the Respondent’s alleged failure to establish a proper chain of custody. According to the Arbitrator, testimony was needed to establish that the contents of the video were the same or unchanged from when they were originally shot, and that stickers were not “switched with some other video.” The Commission disagreed, noting that the Arbitrator cited criminal cases (with a much more stringent chain of custody standard) in support of rejecting the videos. Since Respondent’s Section 12 examiners relied in part on the surveillance videos, the Arbitrator’s decision to exclude the evidence constituted reversible error.
Use the Silent Witness to Your Advantage
Establishing a foundation for surveillance may not necessitate a particular investigator to testify, or even necessitate the testimony of an investigator at all. Increasingly, footage is captured in an “unmanned” fashion, with cameras permanently placed on businesses, schools, hospitals, etc.
The Silent Witness Theory was discussed by the Illinois Supreme Court in People v. Taylor, 2011 IL 110067. In Taylor, thefts at a suburban high school were captured with a motion activated, wireless, digital camera concealed within a clock radio and a DVR. The defendant sought to suppress the videos, arguing that the video skipped forward 30 seconds, and that the State failed to explain why the gap existed. The Supreme Court listed some factors that should be used to establish the foundation of the video, and ultimately concluded that the dispositive issue on each case was the accuracy and reliability of the process that produced the recording.
“Unfair surprise” is not a good reason to exclude video surveillance. Some petitioner’s attorneys may seek to expand the “48 hour rule,” articulated in Ghere, to argue that surveillance should be excluded. There is no basis for such objection (actually, the objection does not even exist) and no case law to support the rejection of video surveillance on this basis. Surprise is an essential ingredient to a good defense, and strategy should not be tossed away to pamper a Petitioner with more time for preparation.
If you believe that surveillance was inappropriately rejected on a foundational basis by the Arbitrator, the decision should be reviewed, especially if your §12 examiner relied on that surveillance to render a causation opinion. No matter how boring and ordinary surveillance seems at first, mundane activities can sometimes have an extraordinary effect at trial, shedding light on a Petitioner’s credibility or motivation to return to work.
If you have any questions about foundational issues relating to surveillance, please feel free to contact me.