‘Video world’ provides opportunities, challenges in the court of law | MyWindsorNow.com

‘Video world’ provides opportunities, challenges in the court of law

Tommy Simmons
tsimmons@greeleytribune.com

Fifteen years ago, the case of Katrina Kennedy-Flores may not have come to court at all.

In May 2016, the Lochbuie Police Department arrested her on suspicion of misdemeanor child abuse, after a video surfaced on YouTube of her yelling, swearing and throwing a booster chair at her 2-year-old son, according to an affidavit for her arrest. The video, which received a great deal of attention online, was key in prosecutors' case against her. She was sentenced Jan. 3 to 60 days in jail and five years supervised probation.

The case itself sadly was not unusual. The Weld District Attorney's office handles many child abuse cases every year. But the fact the incident was recorded and then went viral, placed Kennedy-Flores at the center of a hurricane of public outcry and shed light on some of the unique challenges viral video poses in the judicial process.

The availability and scope of video technology can make it difficult for attorneys to trace a clip back to its source. It can also bias juries before they even see a courtroom, and it can be a thorny issue at sentencing.

“With the popularity of editing software we’re hesitant to use video if we can’t trace it back to its source.

— Michael Rourke, Weld district attorney

Video in the courtroom is nothing new. Weld District Attorney Michael Rourke said prosecutors try to use it whenever they can. The technology surrounding video in the 21st century has changed drastically, though.

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"With the popularity of editing software we're hesitant to use video if we can't trace it back to its source," Rourke said. "There's been times when we've been suspicious a video has been edited from what was originally shot."

He added prosecutors always try to have a witness available who can tell a jury more about the video, and verify its authenticity. For example, the affidavit for Kennedy-Flores' case said police recognized her voice from previous encounters, and were able to verify she was indeed the woman in the video.

"One of the interesting things is these days people take any sort of video as gospel truth," said former Weld District Attorney Al Dominguez. "So it's the responsibility of the party using it … to show it hasn't been altered."

The public's reluctance to question a viral video can also create problems during jury selection, Rourke said.

"If a good portion of the jury panel is already familiar with the case (through publicity), then we run the risk of them already having come to a conclusion," he said.

Those conclusions can be dangerous and inaccurate. Dominguez was quick to point out that video never shows a situation in its entirety — it only highlights certain segments of what happened.

Ideally, attorneys and judges do not change how they handle a case based on the publicity it has received. Rourke said one of the guiding principles in sentencing is that people in similar circumstances are treated similarly.

Colorado law lays out a number of factors for judges to keep in mind when sentencing an offender, such as their likelihood to re-offend and their ability to be rehabilitated. They also must consider the deterrent factor the sentence might have.

In their arguments during a sentencing, prosecutors often cite the opportunity a judge has to send a message. Weld Chief Deputy District Attorney Ben Whitney at Kennedy-Flores' sentencing listed many reasons for a stiff sentence, including the fact the video footage went viral.

"This case ended up on social media and in the news, and in a very real sense, this offense is out there," Whitney said at Kennedy-Flores sentencing. "The sentence this court imposes will be looked at by future offenders down the road as the cost of doing business for this type of crime."

Despite that, Rourke said while prosecutors always are conscious of the public's reaction to an offender's sentence, they do not seek harsher punishment simply because an offender's case has received publicity.

"Absolutely not," he said. "That would not only be unfair to the offender, but it would also be unethical. Ben (Whitney) was saying, 'what is the deterrent factor to the next person in the community who commits this kind of offense.' We're very cognizant of the potential deterrent effect when crafting sentencing arguments."

Dominguez said he believes the sheer speed and scope of viral media puts more responsibility on everyone in the judicial system to use it ethically.

"We live in a video world," he said.

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