Be advised: video presents the facts

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Video evidence can be a great storyteller. A storyteller of the truth, revealing the scene exactly as it occurred.  One such visual truth telling benefited the prosecution when video evidence revealed missing pieces in the story of a case involving drug possession with intent to distribute. The video evidence became "the most important evidence the government presented to the jury" according to the opinion on the case's appeal; US v. Jose Santos Morin, US Court of Appeals for the Fifth Circuit, No. 09-40702. At the same time, in this case, along with acknowledgement of the importance of the video evidence, the opinion offers some cautions on the analysis and interpretation of that video evidence.

On January 20, 2009 at the Falfurrias, Texas U.S. Border Patrol checkpoint a trained canine nose raises concerns outside a white trailer pulled by a red tractor-truck. After a secondary inspection by drug dogs the driver of the tractor, Jose Santos Morin, consents to a search. A U.S. Border Patrol Agent opens the rear of the trailer. His canine partner enters, jumping onto stacks of produce boxes. Inside the boxes layers of cabbage leaves wilt in their attempt to hide large black bundles. Bundles containing a harvest from a different plant. The trailer contains 284 bundles in all: a total of 9,146 pounds of marijuana with an estimated street value of $7.3m.

Morin claims to have no idea how it got there. The passenger, Juan Manuel Hernandez, presents a bill of lading to Border Patrol Agents. The bill of lading states they're hauling cabbage from ISPE produce warehouse to Houston, Texas.

The DEA investigates

DEA Agents Suzanne Minnick and Xavier Bedoya arrive and interview Morin about the sequence of events leading to his arrest. In his statements to the agents, Morin claims Hernandez recruits him to drive a tractor pulling a trailer loaded with cabbage on the evening prior to his arrival at the checkpoint. He claims their route was from Mission, Texas to Houston. Morin says a friend calls a cab to pick him up and bring him to a Jack in the Box restaurant for the rendezvous with Hernandez. He claims Hernandez arrives later, around 12 a.m., driving the tractor pulling the trailer. From there they head straight to Falfurris, Texas stopping only for gas in Encino where Morin takes over the driving.

The DEA agents find a receipt in Hernandez's wallet from the evening of the departure. It's from a place neither Morin nor Hernandez mention in their interviews: a Stripes convenience store in Mission. This is where video evidence enters the picture. Agents Minnick and Bedoya obtain video from the Stripes store -- 16 cameras worth, 30 minutes before and 30 minutes after the time listed on the receipt. Analysis of the video evidence launches the agents on a path to the truth.

The video shows a tale of a tractor-trailer switch-off. Around 10 p.m. on January 19, 2009 a tractor pulling a white trailer, similar to the trailer Morin was pulling when arrested, backs away from the gas pump area and parks. Soon after, a second tractor, a red one similar to the one Morin was driving when arrested, arrives and pulls up to a pump.

The first tractor detaches its trailer and pulls to a different pump.  Then the red tractor backs up and connects to the white trailer.  Agent testimony also notes the video importantly shows that during this trailer switch a person "who appeared to be Morin inside the store" is making purchases.

When things go to trial Morin's story changes. He admits being at the store during the time of the video and testifies with his new story.

Morin's new story

Morin testifies that on the evening before his arrest Hernandez picks Morin up at his house and drives him to the Stripes store in the red tractor -- the same tractor Morin was driving when he was arrested. Morin testifies that there is no trailer attached when Hernandez picks him up. At the Stripes store they fuel the tractor, still without trailer, and Morin heads inside to get food and drinks. When he comes out of the store he runs into an acquaintance.  The acquaintance drives him to his house because he wants to say goodbye to his family and he later meets up with Hernandez to drive with him.

But the court didn't buy it and with the video and other evidence Morin is convicted. The value of interest in the video evidence doesn't end there. We have something else to learn.

Morin's appeal

Morin appeals his conviction with one of his objections challenging Agent Minnick's testimony regarding the surveillance video from the Stripes convenience store. Morin claims that Minnick crosses a critical line in her analysis of the video evidence. He claims she uses the video to make an impermissible comparison between a drug profile and himself. In the appeal's corresponding opinion, the judges offer some explanation of crossing this line. They explain that evidence should present only facts, thus, testifying to a defendant's state of mind rather than the facts is not allowed. Describing behavior common to the drug-trafficking trade is allowed. Explaining what a defendant was thinking is not allowed. Here's an example from a different case: an agent testified that a "defendant 'must have known he was carrying drugs' because he falsified the log book"; Ramirez Velasquez, 2003.

In Morin's case the appeal opinion indicates that Minnick did transition from giving background testimony about how drug organizations work to describing her "theory" of the surveillance video from the Stripes convenience store. The judges ruled that Minnick was entitled to provide a summary of the video testimony and her expert opinion of it (under federal rule of evidence 1006). But she should not have offered the opinion that based on her interpretation, "after everyone met at the pumps at the Stripes station, Morin and Hernandez backed up the 'already loaded' trailer that had been delivered to the Stripes station and attached that trailer to Hernandez's tractor."

Amid their ruling that Minnick crossed a line at one point in her testimony, the judges point to numerous witnesses presented by the prosecution. They herald the video evidence as the most important evidence the government presents to the jury. They acknowledge Morin admitted being at the store during the time of the video. They point to numerous facts all showing that Morin's story can't be corroborated. Employees of the produce warehouse testified that the bill of lading was forged. An employee of the Stripes convenience store testified regarding the receipt and security cameras. The owner of the cab company that Morin claimed picked him up testified that none of his drivers had any record of a passenger in the area of Morin's address on that evening. Morin wouldn't provide correct contact information for either the friend he claimed took him home from the Stripes store or the friend he claimed called the cab for him.

The judges explain that the jury was well entitled to infer from the video that Morin was present when the trailer containing the marijuana was attached. The jury was also entitled to consider the suspicious circumstance of picking up a supposed load of produce at a gas station and to consider all the other evidence. In the end the judgement of conviction was affirmed. The opinion states, given the volume of the evidence produced by the government "we are persuaded that Morin has failed to demonstrate a reasonable probability that trial would have had a different outcome".

This opinion does, however, leave those testifying to video evidence to consider how careful they must be in presenting the facts and not extending to "theories" or opinion on what is going on in the minds of those in the video. Presenting video evidence means presenting only the facts shown by that video evidence.

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