Video footage of murder: Is it too prejudicial or probative?

WMU-Cooley Law School Professor Karen Fultz

By Karen Fultz

WMU-Cooley Professor Karen Fultz explains why the use of video footage may not be considered admissible in the court of law in Florida’s State v. Dontae Morris case.

In this country we are innocent until proven, by the requisite legal standard of beyond a reasonable doubt, guilty. Additionally, lawyers (defense counsel and prosecutors) are prohibited, during criminal trials, from making any attempts to evoke a juror’s sympathy to obtain a favorable verdict.

“Closing arguments must not be used to inflame the minds and passions of the jurors.” Bertolotti v. State, 476 So.2d 130, 134 (Fla.1985). “It is improper for the State to evoke the jury’s sympathy regarding the victim.” See Watts v. State, 593 So.2d 198, 203 (Fla.1992). Thomas v. State, 787 So. 2d 27, 30 (Fla. Dist. Ct. App. 2001)

These rules are enforced by the judiciary. In criminal trials, the judge is the gatekeeper and determines what will or will not be presented to the jury for consideration and deliberation of a defendant’s guilt.  Those rulings must be guided by the Florida Evidence Code.

For evidence related to a criminal defendant’s prior wrongdoing of convictions, the Judges refer to FL. Stat. 90.404(2)(a) which provides, in pertinent part, that “[s]imilar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.” Further, FL. Stat. 90.402 provides that “[r]elevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” [Emphasis added]

In the State v. Dontae Morris case, involving the alleged murder of Derek Anderson, the prosecution filed a Motion with the Court requesting the right to introduce as evidence the dash cam video and audio footage depicting Mr. Morris shooting and killing Officer David Curtis and Officer Jeffrey Kocab in 2010.

Allegedly, based upon ballistic testing of the weapon used by Mr. Morris to murder Officers Curtis and Kocab, it was also used in the killing of Derek Anderson. The prosecution may seek to use the video footage to show the identity of Mr. Morris as the one who allegedly killed Mr. Anderson.  However, it lends for discussion whether this type of evidence would only serve to evoke the sympathy of the jurors and distract them from weighing other evidence that may be stronger to prove the defendant’s guilt. When the dash cam video and audio footage was released to the media in 2011, Melanie Michael of Tampa Bay News 10 recalled that “[t]he 19 reporters and photographers who watched the video … were stunned and let out an audible gasp when they watched the moment when the officers were shot. Several of them walked out of the room.”

Based upon the emotional impact of seeing the video, it may be more prejudicial to Mr. Morris’ defense than provide any probative value to the charges in the case, especially in light of the other evidence the prosecution had available and Mr. Morris’ constitutional right to not testify in his own defense.

*In November 2013, Mr. Morris was convicted of two counts of murder, among other charges and sentenced to death in May 2014.

**The field of ballistics is able to identify rifling patterns, marks made by using suppressors (silencers), shell casings, powder burn and many other different areas relating to the use of firearms and the evidence they leave behind.