Meaningful Disclosure of Video Evidence: A 1L Student Perspective
“Your Honour, we requested The Lion King, and were sent a VHS tape and something labelled 'Blu-Ray'. I only have a VHS player and didn't know what the circular thing with a hole was, so the store failed to meaningfully deliver the movie.”
This is a pretty ridiculous assertion – but is a disturbingly close analogy to arguments made about technology in Canadian courtrooms. In January 2018, several Robson Hall students sat in and watched an appeal filed against a conviction in the Manitoba Court of Queen's Bench. The grounds for appeal? A surveillance video from Stony Mountain Penitentiary. According to defence counsel, “meaningful disclosure” had not been made by the Crown – a CD had been sent with two files. One was a low resolution .asf file, which, when double clicked, was played by Windows Media Player. The other was called “Document”, and when double-clicked on, nothing happened. Eventually, they discovered it was a higher resolution copy of the same video, in a proprietary format called “.g64”. Defence counsel argued that as the one file had opened on their computer, the other had not, and because nobody had told them what the unopenable file was, they had been denied access to evidence. Apparently, the lower resolution video used at the trial had made it harder to see events, and contributed to the judge's decision that there was no “air of reality” to a defence invoked.
When I got home, in amazement, I sat down at my computer. Google provided the answer I'd suspected. Searching for nothing but “.g64” gave me “About 9,460 results (0.51 seconds)”.i The top result was entitled “G64 File Extension – What is a .g64 file and how do I open it?”.
From that page, it was a total of three mouse clicks and under two minutes to have the free Genetic video viewing software on my computer which would open the higher definition copy. According to arguments presented at the Court of Appeal, there should instead be a fresh trial, and perhaps the Crown should widely adopt the policy of bringing together Crown, Defence, and Correctional Service employees, so they could all open and watch video files together.
In terms of technological competence, what do we expect from lawyers? I was so disturbed by what I'd seen that I spoke to law school colleagues, family, and friends, and the divide was clear. People who have been building hardware and software since they were children, people who like to explore technology, people who were early adopters and enthusiastically sought out 'toys' couldn't conceive of Counsel not looking for and finding software if presented with a file they couldn't open. Others, who ask friends to fix their computers when it slows down due to bloatware and viruses, couldn't conceive of how they would go about that or why they would be expected to.
There are Public Prosecution Service guidelines on how to deal with, and disclose video evidence:
3.8. Documentary and other evidence
“Where reasonably capable of reproduction, copies of (or access to) all documents, photographs, audio or video recordings of anything other than a statement of a person, should be provided whether or not they are intended to be relied upon by the Crown” (ii).
Had the video been provided? Both sides agreed, yes. Two copies had been provided: one more likely to be opened, and one with better quality. Perhaps there's an argument that providing the lower quality version was actually a distraction – without that, counsel would have known they didn't have the video they needed, and would have asked for it. But there was no suggestion that the Crown asked what operating system defence were running. The .asf format belongs to Microsoft,iii and if they had been using Linux, the .asf video would have been just as immediately inaccessible as the .g64. It seems very unlikely that the provision of the guaranteed Windows-compatible video was anything but a courtesy.
What if a monolingually English speaking lawyer were sent untranslated original evidence in French, Canada's other official language? What if it were in Cree, an ancient Canadian language, but unofficial? Or Tagalog, one of the most widely spoken immigrant languages? We would surely in all cases expect them to know they needed it to be translated, and have an idea how they could find someone to do it. It would be valid to complain that the document they'd been sent required work, but it would be untrue to claim it couldn't be read. Being presented with a file that cannot immediately be opened doesn't mean you haven't been sent it. If the file is somehow encrypted, scrambled, or doesn't fit in whole on a disc, these are all very different situations than if you simply don't, at the moment the file arrives, possess the free software needed to open it. In this instance, reading the file would have needed nothing more than the ability to go online, and type in the name of the thing they were looking at.
Lawyers are not, and should not be required to have degrees in computer engineering before they represent a client using anything more than a fountain pen. But they should be expected to understand the world they live in. It is not unreasonable to expect someone who cannot open a file to identify that there could be a way to open that file. If current lawyers and law students do not know how to do it themselves, they can and should be expected to ask for help. We expect this of them in any other area where they encounter a problem they cannot solve themselves – why would computers be any different? Rejecting this would lead to one of two paths: the development of specializations based on whether or not a lawyer was comfortable with anything higher tech than plain paper, or the refusal to admit any evidence from technological sources. Neither of these is reasonable. The knowledge of the world is available online for people who ask – including how to open a video file.
i Google Search result for “.g64” in incognito mode, January 10th 2018 online: <https://www.google.ca/search?dcr=0&source=hp&ei=fL1jWpLpIZSWjQP816f4Cw&q=.g64&oq=.g64&gs_l=psy-ab.3..0l2j0i30k1l8.1036.1832.0.2040.4.4.0.0.0.0.127.436.0j4.4.0....0...1c.1.64.psy-ab..0.4.434....0.Nd24JZdFWTk>.
ii Public Prosecution Service of Canada Deskbook, Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act, March 1, 2014 at 3.8 online: <www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/tpd/p2/ch05.html>.
iii Overview of the ASF Format, Microsoft, online: <https://msdn.microsoft.com/en-us/library/windows/desktop/dd757562(v=vs.85).aspx>.