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10 June 2021  | Tumi Mokobe | Views: 69

To the exclusion of CCTV cameras, there is a tremendous rise in ownership of gadgets such  as smart phones, making it easier for individuals to personally capture incidents that amount to criminal behaviour by just a touch of a finger, either for the purpose of directly keeping evidence of an incident or innocently capturing a moment which might later become relevant to a criminal case.

A practical example…”it’s a night out at a local club, you’re with a friend-dancing and having fun when a fight breaks between your friend a local man in which your friend is stabbed and fatally wounded. The perpetrator flees the scene however as per norm you took a video of the whole incident using your phone and it is safely stored"

What do you think of the video? Is it admissible evidence in a court of law or not? Does a video taken without consent of the other party have any potential to assist solve a case and subsequently lead to a conviction? Can a person be convicted of a crime solely based on digital evidence presented in a court of law? Answers to these questions are to follow, should you find yourself in such a compromising situation.

The answer to this question is not necessarily in the affirmative, a person cannot be convicted of a crime solely based on a video, it is not considered prima facie evidence which means that a video at first sight is not sufficient to lead the court to draw a judgement however it is not ultimately written off from the evidence. A video on your phone is regarded as “film“ which falls under the category of documentary evidence. When dealing with presentation of documentary evidence, the most decisive rule in its admissibility is the authenticity of the video, the video needs to be proven to be authentic by an expert in terms of it actually being what it appears to be. In addition, the contents of the video need to be verified by a reliable witness, this is where the person who took the video is called to the stand as a witness to swear on the authenticity of the video and explain the reason why it was taken, the necessity, etc.

The crux of the process of a video being admissible and leading to a conviction are subject to the evidence being authenticated and that is the key element. If a witness can attest that the video is authentic and an expert can attest to same and that no tampering had taken place and the court is satisfied with authenticity and corroboration of the video, weight will be assigned to the video based on its content, the extent in which it is relevant to the case in session and it will be carefully analysed and admitted as well as considered when convicting and passing a sentence to the guilt party.