Videotape as a Source of Evidence: Notes to a Scholarly Dispute

Abstract

Provisions of procedural legislation on giving definition to evidence and a videotape as one of its types are considered in the article. A videotape can refer both to physical evidence and documents pursuant to the provisions of procedural codes. But the au­thor disagrees with these provisions. She mentions that procedural code defines the document as a material object which is specially created to keep information and can be used as a proof of facts or circumstances during criminal proceeding. But the le-gislator formed such definition of the document without analyzing a semantic mean­ing of this word. A document is interpreted in the definition dictionary as 1) an offi­cial paper that proves some legal fact, certificates something, serves as an evidence of something. It is everything what confirms something. Commercial paper. 2) a cer­tificate which tests the person; 3) a written essay, commendation etc. which proves something important or historical; 4) a paper which is created to be filled in. In this regard the author makes a conclusion that a document is a paper and a videotape can not be considered as a paper.

Physical evidence is items of the physical world which contain information on cir­cumstances important for the case. Some procedural codes say that physical evi­dence includes magnetic, electronic and other data storage devices which contain audiovisual information on circumstances having the meaning for the case. In such a way a videotape can be the type of physical evidence. But a videotape does not cor­respond to the definition of a physical videotape which is contained in procedural codes. Magnetic, electronic and other data storage devices are items containing in­formation which can be helpful to establish important circumstances. This informa­tion can be obtained from the content of these items through special equipment. This process differs from the process of examining physical or written evidence when their material from is examined. In this regard the author makes a conclusion that the leg­islator referring a videotape to physical evidence or documents does not want to take into account transformations in the world including progress in science and techno-logy. In turn it tries to explain new facts with old definitions.

The author does not accept this position and proposes to give a videotape the status of an independent type of evidence. The author proves that this step will assist judges to have a more serious attitude to this type of evidence and take it into account dur­ing the trial. In this regard the author offers to amend procedural legislation in force with a provision that factual circumstances can be established by audio-and vid­eotapes and allocate in separate section procedure for handling with this evidence.

The author analyzes procedure of using videotape in a non-judicial process. She considers provisions of the Code of Ukraine on Administrative Offences and makes a conclusion that this law does not regulate handling with videotapes during procedures on administrative offences which are conducted by the representatives of public administration agencies. Thus propositions on amending procedural judicial legislation can be used in a non-judicial process. The author also proposes to amend the draft law on Administrative Procedural Code of Ukraine with provisions concerning videotape.