the court knows this case what rises out of a cliff in between mcdonough county sheriff's police officer and a minivan that was being driven by a man to take the passenger in the minivan the crash this particular case has several unique aspects i think in twenty years i've never seen a case where we have actual live footage of a crash we have live footage in this case actual real time footage of how this crash unfolded and the events leading up to that second unique aspect  this case is that the evidence of the issue at the heart of this pill was addressed by this court in opinion offered by justice o'brien in two thousand and twelve case and johnson versus  unclear about and that is the evidence very foundation required for demonstrative that the cases are deal with photographs this particular case used in the video but i would submit to the court the standard is no different this court has always held that before a photograph may be admitted a proper foundation must be offered establishing one that the photograph or in this crazy video is true an accurate representation of what it purports to portray and number two that the subject of the photo was in substantially the same condition as it was the time of the accident a second foundational requirement that this court has repeatedly imposed is that demonstrative evidence should not be admitted if they are inaccurate or would mislead or  this case is also unique because i would submit to this court that if we simply apply the principles and johnson to these facts it is clear that no proper foundation was ever laid for the video that was created by the defense at the trial of this case this appeal the reason we are here today is because of a videotape we caught in our previous the defense video it was created by a defense expert accident reconstructionist it was allowed into evidence despite the fact that it failed and i might add failed miserably to meet the foundations set by this court  three separate occasions the defense video in this case is undisputedly an actor the defense and their expert acknowledge that it's inaccurate the events shown which meant that it was never written on the night of this crash at all times the police video shows her moving through the intersection yet this is taken from a static position the defense video shows one minute and twenty four seconds of emergency lights traveling southbound on route sixty seven now we know and it's undisputed that that did not happen amanda dayton never had the ability even to see the squad car lights for a minute and twenty four seconds how do we know that because as we pointed out to the court officer pledge the sheriff's department officer wasn't even in his c about huge gaps in time huge distances that can be trapped the defense video slows down the vehicles that are traveling south on the forty mph when we know that the officer reported traveling in excess of a hundred at one point  hundred ten miles an hour within the city limits to confuse the concept of humility of the s u v the lights are illuminated in the defense video not the case on the night of the crash i'd like to take the opportunity to answer a few questions that were raised in the defendant's brief in this case here's the first one question how many times must the defendants explain that the quote line of si video was never intended or trade the incident or explain how it happened here is the answer not no more no more need to try to characterize this video as some limited purpose no more it doesn't matter how many times they say line of sight in this case it will never be true it will never be accurate we need only look at the trial transcript here to see that this video was used for far more than a limited purpose defense counsel quote once again this is of those visibility study of what the certified accident reconstructionist recreate as far as what her big visibility would have been under almost identical circumstance that's the fence council this isn't just the line of sight in his opening statement quote the point of this visibility is that you will see it on the video is to give you an idea of what amanda deep either could or should have seen that night again it's undisputed that amanda dating did not and could not have seen emergency lights for a minute twenty four seconds this limited  purpose argument incidentally rejected in the johnson case you recall in the johnson case that there was an argument that that the photograph of the parking lot was for a limited purpose this court rejected that argument and said that photograph showed more than what the proposed limited purpose was saying in this case this isn't a visibility study this isn't a photograph from the sight then i would have a quirk just listen carefully and look carefully at the question and answer this is the first question and first answer that was that happened after the jury saw the defense video here it is questionable the video has now concluded and it is approximately a minute and twenty four seconds does that correspond with your recollection was as far as the length of the time of the video you shot the defense expert yes or so we're talking about the defense video here's your next question question based on that video and some of the other things that we've talked about in your opinion what or how long would a manda d in seconds were timeless would have had to appreciate and observe the i'm coming emergency vehicle he turned this into a perception reaction times that and here's his answer defense expert well first off based on the video again the video isn't a stagnant position she didn't sit in observe it that will time that's not what i'm trying to say i'm saying it was viewable for that entire time this isn't  visibility study of what you might be able to see this is an effort here afferent to extend the perception reaction to destroy the show that this girl had a long time to perceive this s u v that had no farther than defense counsel here's what he said about the defense video and its importance in the case quote this is absolutely the type of evidence that if you're is going to want to see the sea to fully evaluate all of the facts and circumstances before they render a verdict in this case oh yes this was a critical piece of evidence in this case now this court has addressed prejudicial impact on the stand and found that in cases that where photos have objects that are arranged to favor one hardens theory of the case it's prejudicial similar to the united to the only supreme court in the french case where the court h where demonstrative evidence is geared toward precondition in the minds of jurors to one side's theory of the case it should be excluded all these factors certainly exist in this case this video was biased to achieve the purpose of the defense it was biased and it was staged and it was skewed to show that amanda didn't have plenty of time to react to this how did they do it here's how they did they position the camera slow everything down extended time forty miles per hour instead of a hundred instead of a hundred and ten closing speed of sixty feet per second and set of a hundred forty five to one hundred sixty depending if you  hundred or one hundred ten miles an hour eliminate the s u v why did they do that make it more conspicuous run the video for a minute and twenty four seconds the cars are in the long run lanes of traffic now why would they do that because obstruction minimize the obstruction that amanda didn't would have had you can see in the police video if you look at it that there's a there's a portion of the video where the s u v is actually in between the squad car you can't even see her minivan sitting there these are not high bars that we're asking people to get over here we're talking about one day in court and all we ask is that the evidence that you introduced is accurate i'd like to up i'd like to just address the issue of recklessness and i'd like to point out to the court you know there's been these suggestions about about drunk driving and about the menace  drivers are to our society we can all agree about that but hopefully we can all agree that's not the issue in this case did the mcdonough county sheriff's department has a policy about high speed chases and that policy is that you can engage in a high speed chase only if there is an actual or threatened tack even why is not on the list and i'm sure there's a good reason for that because we don't want anybody rather one hundred miles an hour but certainly won't want drunk people driving one hundred miles an hour trying to keep ahead of speeding police vehicles i'm going to close with this one final unique aspect of this case one final unique aspect and it's this and i think this is going to be true even when we walk out of here today the defense has never shown in the record it never shown any testimony that a proper foundation was laid before the defense video was admitted  have never pointed to the record to show us where they established that it was true and accurate they've never pointed to anywhere in the record to show that it was substantially the same conditions and i think that will be tru his head lights are turned off you're a police officer how do you respond to that don't don't spend five or ten minutes or think about this decide now because that's what he had to decide right then and there what do you do do you let his car ahead of a call at high speed with his head lights turned off or do you pursue with your lights flashing and sirens blaring giving warning to everyone up ahead just what's coming their way what would you agree that the video was about as an experiment it's completely different this is entirely different from holding up a photograph and saying this is the this is the condition of the factory floor which was done in the french case of when it it was covered at trial the interval of the seante the foundation is that it was limited to a specific test a specific test to a step which line of sight nothing more and that was made clear of the case that these cars were only moving at forty miles an hour that's ridiculous the first minute of opening statements they discuss or got up there and mention the speed of these vehicles as being in excess of one hundred miles an hour in the second minute opening statements they showed the video which gives clear graphic testimony that these cars are moving at a very high rate of speed and you have deputy pledge announcing on his radio what his speed was now we are going to put up a to demonstrate that there was a clear unobstructed line of vision for the top of that hill all the way down which exceeded over a half a mile that's all it was there for that's all it was there for and it was prepared with the sole intent  fact remains that we still have of the right to show that there was an unobstructed view no it's true at one point the lead s u v blocks the car and that happened that shown in the s car video it's also shown in ours other than the of the line of sight video was never intended to show that these cars were moving at forty miles an hour and if it was we would have looked like idiots travel is different it here if you are showing something at forty miles an hour as opposed to not at one hundred miles an hour not when all when all you're trying to do is show that the look that the those lights were unobstruct evidence that was introduced at trial just to show that this would change the fact remains is that we were looking to shoot we were attempting to show that there was an unobstructed view of this car the the the squad car with its lights flashing court understood that that the jury understood that made understood that numerous times all the way through and this court's ruling in the bill in don't be riddle case states that where an experiment is not represented to to be a reenactment it and it deals with one aspect or principle which is exactly what we were dealing with here directly related to the occurrence of the exact conditions need not be duplicated but there is a requirement of would have made no difference at all you still would have seen this the only difference would be those that are in preparing to test we would have been placing people at risk we didn't do that we would have been foolish to have a couple of cars particularly one of them with their headlights off running at a hundred miles an hour while this just produce a line of sight the fact remains is that the time element is completely on the horns the only thing that's important is that there was an and he said no i have not he said it was a minute in twenty four when i recorded it and it's a minute and twenty four now that proves that we didn't edit the tape that's all to us and that's why we've got that i mean were in there that further establishes the veracity of the evidence that's all now we have another regard yes that's the way it was pointed out that's precisely what was done that's why he asked them that question you ask what was the length of this video is that the time you spent when you originally filmed it didn't you actually said no i did not get it this is the true version of the video and we have a number of fundamental considerations in this appeal the first first one is this this is a jury verdict rendered by the people who have a vested interest in the manner in which the local law enforcement conduct themselves this is local county this is what they think was done right this was not a case of negligence this is a case for willful and wanton conduct the question is not whether officer pull a deputy pledge made a mistake or was negligent it's whether he had it conscious disregard for the safety of others and that is an extremely high standard and there's another high standard issue here every single issue they raise on appeal is subject to the abuse of discretion standard of review and what that means is that each one of you individually if you disagree with chuck and rose ruling that's insufficient to overturn what you need to show is that is decision was arbitrary that was beyond the bounds of reason and that is an incredibly house standing and finding we're dealing with one last standard when this is all said and done you have to show before you can reverse this case that these errors if they occurred and if they were beyond the bounds of reason materially affected the outcome of this case and you just can't not with that with a case like this this was a case that was based and the arguments are based entirely on an attempt to show that our jury cannot be trusted to understand the facts it's based on the notion that by viewing this video that the jury would have completely forgotten all about the squad car video and said you know what even those cars really were moving forty miles per hour of course we never made that and we never wanted that argument it control it contradicts  and they tried to sneak in testimony all through trial that this was a reconstruction video and we continually had to respond to that and we did so our brief in this appeal then read over again the key point to reconstruction video in here the worst of it came on seven of the reply brief and this is a quote defense counsel even referred to it as an informal reconstruction unquote that is not true that the two citations they make to the record are page fourteen and for twelve page fourteen shows that we were talking about the squad car video not hours before twelve is opening statement where we told the jury it is not a reconstruction no would have you believe that just by looking at this video that the entire viewpoint of it he's changed suddenly that the boy maybe she really sat there for a minute and twenty four seconds washing that car or so the light were changed a couple of times and over over a minute twenty four seconds we never posited that we continue this line of argument when they talk about their arguments or closing argument they said that the weave they were prevented from reaching the five second that is that they did not want to subjected to cross examination because if they have if they are experts and said it was only five seconds we have been able to impeach that if one of our experts said it was thirteen seconds if he had cross examined our expert and says it should be five we would have been able to show had he brought this up during the testimony portion of the trial you were served to confirm that if there was thirteen seconds as it is they put this in their pocket saved it up when we don't have the ability to cross examine it now we're looking at a very blurry video that the only way that you can really look at this is in stop action slow motion it takes numerous views to to do this any one of the experts having viewed this would have agreed with us but they saving this up and by avoiding eliminating any possibility of cross examination they are all of the avoid that entire problem and what they're doing here is the rely on a hope that our jury is not going to be smart enough to figure this out and this comes up over and over and over in this case they claim that it was everywhere for expert of a police officer to say that you have a take exception to that we think that this jury was fully intelligent intelligent enough to know the difference between a reconstruction and a line of sight else just we we believe that this jury was perfectly positioned to make this  because they are the very people with the greatest stake involved in the outcome of this case they're the ones that are going to be protected by these officers but let's start with this we don't think the jury's done ok and here's another thing we don't think we don't think that we need x birds to count the seconds on videos we don't what they had here was a professional witness i've seen this for over an action it's pretty good he talked his way around in this case and they talk their way into what we call in the trial business of the piece of sloppy this evidence was sloppy and the reason and trial business is called slop is because it sticks to you and it's prejudicial and you can't get it off and that's what that's what they did here there's some suggestion that they have that we should have expert movie watching us i'm going to i please when my wife was here today because my son she would tell you would qualify he would be an expert and we don't need expert movie watchers we don't need people to count the seconds in videos to is this and i'm going to read this this portion that our position here is what they're trying to do is they want you to change the standard we're going to move the goalposts here we need to change the standard let's call this we call this an experiment that i don't believe that word ever appears anywhere anywhere in the trial transcript experience but it doesn't matter anyway because the standards the same substantially similar so let's change that they they  resorted to characterizing us as calling the jury down why did they do that well the reason they do that is because what they would have all of us all believe is that the standard should be that if the evidence is bad if they slow the cars down to forty miles an hour it's so inaccurate that the jury would believe that's not a standard the standard doesn't have an exception that says you're an actor it's substantially similar except in cases where the evidence is so in fact that it's admissible so we're not we don't need to change the standard here that the opening statement what they said to the jury is that this they're referring to the defense video this is not a formal accident reconstruction thus the informal accident reconstruction it's a new way that we can characterize demonstrative evidence so we'll have informal axle reconstructions we'll have what experiments will have actually reconstructions will have line of sites there's no need for any of this this is just a bunch of obfuscation to try to get around the fact that this was prejudicial we talked about fundamental principles i'm glad they brought that up fundamental principles and this is where i want to end fundamental principles the bar is not very high for your one day in court that you would expect that evidence that that it's not biased for one person of the other ok all we want is a fair fight what is the reason what is the purpose for the foundation simple ensure fundamental fairness mcdonough county sheriff has a policy this that the officer knew what the policy was and he violated the policy in mcdonough county for high speed chases does not allow for a high increase speeds to say that i guess i don't think that the jury is in this case is going to buy that said this was going to and that there was any purpose for this this is not a clint eastwood movie where he was going to pull up next to him and shoot the tires out  what's the first no purpose really there's no purpose for this chase so i think there's ample evidence of recklessness here most importantly their own po