Appellate courts can’t reweigh the evidence just because there is a video of the stop. Even video is subject to interpretation, and the trial judge’s findings are final. Robinson v. State, 5 N.E.3d 362 (Ind. 2014), affg Robinson v. State, 985 N.E.2d 1141 (Ind. App. 2013):
While technology marches on, the appellate standard of review remains constant. As we said above, we do not reweigh the evidence. Our colleagues in other states have taken a similar approach when faced with video evidence. State v. Vanscoyk, No. A-12-024, 2012 Neb. App. LEXIS 244, 2012 WL 6580786 at *6 (Neb. Ct. App. Dec. 18, 2012) (“Vanscoyk essentially asks us to reweigh evidence and witness credibility to determine whether Officer Kowalewski’s testimony is credible in light of the video. This is not the appropriate province of an appellate court.”); State v. Gross, 281 P.3d 598, 2012 WL 3136809 at *4 (Kan. Ct. App. July 27, 2012) (“We do not reweigh the evidence, and the district court’s conclusion that the video was ‘the clearest evidence’ is not contrary to any uncontested testimony.”); State v. White, No. E2010-02238-CCA-R3CD, 2011 Tenn. Crim. App. LEXIS 811, 2011 WL 5335471 (Tenn. Crim. App. Nov. 2, 2011) (declining, in a challenge to the sufficiency of the evidence for a conviction for drunk driving, to reweigh the evidence and find a video recording more reliable than eyewitness testimony).
We do not believe, however, as some of our colleagues in other jurisdictions do, that the very act of reviewing video evidence constitutes impermissible appellate reweighing. State v. Rascon, No. 30,561, 2011 N.M. App. Unpub. LEXIS 12, 2011 WL 704472 at *2 (N.M. Ct. App. Jan. 14, 2011) cert. denied, 2011-NMCERT-003, 150 N.M. 619, 264 P.3d 520 (2011) (table) (declining even to review a video of a traffic stop in a reasonable suspicion case on the ground that doing so would amount to reweighing the evidence). Rather, we consider video evidence admitted in the trial court to be a necessary part of the record on appeal, just like any other type of evidence. But see Nava v. Kan. Dep’t of Revenue, 281 P.3d 597 (Kan. Ct. App. 2012) (table), 2012 WL 3135902 at *4 (“the Department asks us to reweigh not only the witness[es]’ testimony but also the district court’s factual determination regarding the video evidence without having even included a copy of the video in the record on appeal.”).
And just like any other type of evidence, video is subject to conflicting interpretations. In Scott v. Harris, 550 U.S. 372, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007), Justice Scalia, writing for the majority of the Court, described a videotape as showing “a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury.” Id. at 380. Based largely on his impression of that video, he concluded police were justified in using deadly force to end the pursuit. Id. at 386. Justice Stevens, dissenting, described the very same video as “hardly the stuff of Hollywood” and opined it did not show “any incidents that could even be remotely characterized as ‘close calls.'” Id. at 392 (Stevens, J., dissenting).
What is more, “the video record may ‘speak for itself,’ but it does not and cannot speak for the visual input a judge observes and interprets that falls outside the scope of the camera, nor does it filter events and behavior through his or her experience and expertise.” Bernadette Mary Donovan, Note, Deference in A Digital Age: The Video Record and Appellate Review, 96 Va. L. Rev. 643, 676 (2010). Although this statement was made in the context of a discussion of appellate consideration of video trial transcripts, we believe the same reasoning applies to appellate consideration of video evidence, and even to law enforcement reaction to an evolving situation. Deputy Claeys, as he drove down County Road 4 on that October night, was observing Robinson’s vehicle through the lens of his experience and expertise. And when Deputy Claeys testified at the suppression hearing, the trial judge heard his testimony—along with the other witness testimony and evidence, including the video—through the lens of his experience and expertise. Ultimately, that experience and expertise led the trial judge to weigh Deputy Claeys’s testimony more heavily than the video evidence, and we decline Robinson’s invitation to substitute our own judgment for that of the trial court and rebalance the scales in her favor.
The trial court found, as a matter of fact, that to the extent Deputy Claeys’s testimony conflicted with the video, the former was more reliable than the latter.8 Deputy Claeys testified “both passenger side tires were over the fog line” and “completely off the roadway” “twice.” Tr. at 48, 24. Thus, we must now decide whether those facts constitute reasonable suspicion for a traffic stop, as a matter of law, in accordance with our federal and state constitutions.
