By: Talya Torres
If a picture is worth a thousand words, a video can be worth many more. In a court of law, video evidence, when admissible, can be even more impactful than word-of-mouth evidence since it is sometimes the actual record of a crime right before the jury’s eyes. With the popularity of vlogging increasing with the popularity of video publication sites like YouTube, video evidence has become an important part of convictions.
When YouTube launched in 2005, video logging or “vlogging” immediately started to grow in popularity. Vlogs are distinct from normal videos, as vlogs are known for cataloguing a person or people’s day-to-day lives. From 2005-2010, YouTube vloggers such as Justine Ezarik (known as “I, Justine”), Grace Helbig, Jessica Rose (known as “lonelygirl15”) and John and Hank Green (known as “vlogbrothers”) started to regularly upload vlogs and garner hundreds of thousands of views. The number of people making vlogs on sites like YouTube climbed with the usage of smart phones, which allowed people to record and upload without having to buy an expensive vlog camera. Of these vlogging channels, lifestyle and family vlog channels rose to the top of the subscriber and view charts.
One of these family vlogging channels that has recently come into notoriety is the channel “8 Passengers”. The channel was created in January of 2015 by Rube Franke, a mother of six who vlogged her day-to-day life with her children and her husband Kevin Franke. Franke’s channel focused on parenting her children in light of her Mormon faith to her 2.5 million followers.
The channel had received criticism from many people over the course of their over 10 years on YouTube, with most of the complaints surrounding Franke’s parenting methods, as thevlogs frequently displayed her disciplining her children. Such disciplinary action included Franke denying food to her children if they did not complete chores, taking away her son Chad’s “bedroom privileges” for seven months and forcing him to sleep on a bean bag in the living room, and telling her youngest daughter Eve to sleep on the bathroom floor after she told her mother that she wet the bed. Eventually, Franke’s oldest daughter Shari notified Child Protection Services of her mother’s alleged abuse of her and her five siblings.
YouTube removed Franke’s channel as well as her second channel called “ConneXions” after she was arrested on August 30, 2023 alongside her business partner Jodi Hildebrandt. The arrest occurred after Franke’s 12-year-old son climbed out of Hildebrandt’s home and to a neighbor’s front door emaciated, with open wounds, and duct tape around his wrists and ankles.Franke’s 10-year-old daughter was also found in similar condition, and Franke was changed with six counts of felony child abuse.
As simplified video recording devices have increased over time, the court and the rules have had to shift to adapt to the use of video evidence in court. Under Federal Rules of Evidence 901on authenticating or identifying evidence, “[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.”
Generally, video evidence can be authenticated under Federal Rules of Evidence 902 (13) on certified records generated by electronic processes, and 902 (14) on the certified data that is copied from an electronic device, storage medium or file. Rule 902 (13) states that “[a] record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirement of Rule 902(11).” Rule 902 (14) states that “[d]ata copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902 (11) or (12).”
The standard for authentication is reflected in many cases, like in United States v. Vidack where the court affirms that “the burden to authenticate under Rule 901 is not high—only prima facie showing is required” and a “district court’s role is to serve as gatekeeper in assessing whether the proponent has offered a satisfactory foundation from which the jury could reasonably find that the evidence is authentic.”
In United States v. Hollingberry, the defendant who was charged with cyberstalking, shared the victim’s face, home address and email to his 3,000 followers on YouTube. Among other things, he also live-streamed his visit to the Attorney General’s office to his YouTube channel, told his viewers to flood the office with calls and directed them to post the victim’s address in the chat.
Not only have incidents of cyberstalking been catalogued through videos, but the internet has made people bold enough to post even things as vile as child abuse. In United States v. Heatherly, the defendant livestreamed himself sexually abusing his under aged nephew. The evidence used was not only the videos of the act, but also the activity logs that provided the IP addresses of all those watching, and the chat messages from the stream.
With such a backlog of vlogs including day-to-day interactions with Franke and her children, YouTuber and former Los Angeles District Attorney Emily D. Baker discussed the ways these videos could be used in court. “[S]omewhere, someone is trying to get their hands and watch all of these videos and is likely subpoenaing YouTube to do that because their channel is not readily available on YouTube any longer,” Baker said. She clarified that “[t]he interactions between her and her children on video can be used in court – especially if she testifies and it goes to contradict things,”.
All of these cases set the standard for the ways Franke may not only be convicted of felony child abuse, but also may be further charged once the video evidence is further examined. Under the rule 901 test, it would not be difficult to prove that the YouTube videos that were recorded, edited, and published by Franke support a finding that these videos are authentic. If the Prosecution subpoena’s the videos from YouTube as Baker suggested they would, the evidence could also make it past rules 902(13) and 914(13) with an expert able to certify the metadata on the videos.
Student Bio: Talya Torres is a second-year law student at Suffolk University Law School. She is a staff writer on the Journal of High Technology Law and is a member of the Executive Board of the Child and Family Law Association (CAFLA). Talya received a Bachelor of Arts in Journalism from the University of Massachusetts, Amherst.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
