This is a review of the relevant Illinois Case Law regarding use of video at Trial.
Barenbrugge v. Rich, 141 Ill. App. 3d 1046, 490 N.E. 1368 (1st Dist. 1986) holds that a videotape of a Day in the Life of a plaintiff in a medical malpractice action, which was an accurate portrayal of his condition and circumstances and whose probative value was not questioned was properly admitted. Videotape and photographs are properly admitted if their probative value is not outweighed by the inflammatory effect.
In Georgacopoulos v. University of Chicago Hospitals and Clinics, 152 Ill. App. 3d 596, 504 N. E. 2d 830 (1st Dist. 1987), the court upheld the admissibility of a Day in the Life Video which demonstrated a medical malpractice plaintiff undergoing painful physical therapy sessions. Defendants’ objections that the videotape was prejudicial and cumulative were unavailing. The court reasoned that no objection had been made that the videotape was not an accurate portrayal of the plaintiff’s condition and circumstances. Furthermore, the judge described the tape as ‘tasteful’ and the objectionable therapy session amounted to only a few minutes out of a nineteen minute tape.
The lead case in Illinois decided by the Supreme Court is Cisarik v. Palos Community Hospital, 144 Ill 2d 339, 579 N. E. 2d 873 (1991). This case established a two prong admissibility test for videos:
- A proper foundation must be laid by the person having personal knowledge of the filmed object, who can attest that the videotape accurately depicts what it purports to show; and
- The probative value of the videotape must outweigh the danger of unfair prejudice in order to be admissible.
Additionally Cisarik set parameters regarding discovery rules:
- Materials generated during the preparation of a video, such as schedules or storyboards are not discoverable because such material is attorney work product;
- Outtakes or unused videotape, that is scenes which were taped but not included in the final edited version, are privileged as attorney work product; and
- Opposing counsel has no right to be present at the time of videotaping.
A videotape depicting decedent responding to a reporter’s question about a job program in which she was involved was admissible in a Wrongful Death Action to show the decedent’s state of well being prior to her death. Exchange National Bank v. Air Illinois, 167 Ill. App. 3d 1081, 522 N. E. 2d 146, (1st Dist. 1988).
In Roberts v. Sisters of Saint Francis Health Services, 198 Ill. App. 3d 891, 556 N. E. 2d 662 (1st Dist. 1990), the defense attorney used a Day in the Life film prior to voir dire to expose the veniremen to a potential source of bias in the case. Whether a party may use such a film as an aid to assist the jury selection process is a case of first impression. The court held that since litigants have a right to examine prospective jurors to enable them to select a jury that is qualified and competent. To determine the facts in issue without bias, prejudice or partiality, it seems only fair that defendants should be allowed to make prospective jurors aware of the condition or injury, which would be graphically exposed to them during trial.
In Drews v. Global Freight Lines, 144 Ill. 2d 84, 578 N.E. 2d 970 (1991), the court properly admitted videotapes depicting the decedent teaching his son to swim and play golf as they conveyed the uncontested truth concerning the decedent’s state of health, his relationship with his family, and the services and instruction that he provided to them. Since there was no question about the probative value of the exhibits, the defendant’s only argument is that they are inflammatory and prejudicial in their cumulative effect. As in Barenbrugge, this argument is not persuasive and the videotape and photograhic exhibits of the decedent and his family were properly admitted.
In a case involving an amputation, the appellate court could not review arguments that damages awarded for pain and suffering, disability and disfigurement were excessive because the railroad failed to identify where the videotaped materials and photographic material used in determining damages appeared in the record on appeal. Barton v. Chicago & Northwestern Transportation Co., 325 Ill. App. 3d 1005, 757 N.E. 2d 533 (1st Dist. 2001).
The animation purported to show in a step-by-step fashion how the blood clot traveled from the lower part of decedent’s body to the upper part of the body, resulting in her death. While the trial court called the animation a demonstrative aid, the appellate court found the animation to be substantive evidence. Cross-examination of the plaintiff’s expert showed that the expert had nothing to do with the creation of the animation. The appellate court held that the animation could not be used since the expert could not state that the animation was an accurate portrayal of what it purported to show.
In a personal injury action resulting from a motor vehicle accident, testimony from the plaintiff’s wife provided the proper foundation for the admission of the Day in the Life film. She testified that she had personal knowledge of the contents of the film and that she had attended two physical therapy sessions and the film accurately depicted how the plaintiff ambulated and how his therapy was administered. The film did not focus on the plaintiff’s pain and suffering to the exclusion of everything else. While he did wince and grimace in various parts of the film, the plaintiff also smiled and talked with the therapist. The film focused on the therapy sessions that would be required for the rest of his life, rather than focusing on his pain. Donnellan v. First Student, Inc., 383 Ill. App. 3d 1040, 891 N.E. 2d (1st Dist. 2008).