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If I am driving a car and get into a crash that is 100% my fault can I rip my dash cam down and delete the footage or completely refuse to give the footage to anyone or am I legally required to provide that footage?

Beans
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    Many dash cams have automatic overwriting. So if your camera has capacity to store 1 day of footage then it will store 1 day of footage and keep storing more footage by overwriting the old stuff. The effect is that you do not have to take any action to effect erasure. The more interesting question is "what if I do not tell anyone about the footage until after the automatic overwriting has already erased it?" – emory Oct 11 '21 at 02:51
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    @emory you may not be compelled to be a witness against yourself. This would have such effect – kisspuska Oct 11 '21 at 04:47
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    Many dash cams have protected automatic overwriting. If they sense a collision, they flag that segment [& bordering] as not to be deleted. – Tetsujin Oct 11 '21 at 09:02
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    This probably depends on the country as well. But I can imagine in most countries the law doesn't like people to destroy evidence. – MC Emperor Oct 11 '21 at 09:23
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    @kisspuska: First, the Fifth Amendment protection against self-incrimination applies only to criminal cases. You certainly may be compelled to testify against your own interests in a civil case. (You can take the Fifth in such testimony to avoid saying something that would show you guilty of a crime, e.g. criminal reckless driving, but the court would be allowed to draw adverse inferences from your doing so. https://www.advocatemagazine.com/article/2016-october/pleading-the-fifth-in-civil-cases) – Nate Eldredge Oct 11 '21 at 12:26
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    What country do you live in? Are dash cams required by law where you live? Or are you a professional driver where dash cams are required by law for your industry? – TylerH Oct 11 '21 at 13:11
  • Is there any other party involved in the crash (any damage to property that is not yours)? – gerrit Oct 11 '21 at 13:23
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    @kisspuska the camera footage is not a withness statement. It is a physical evidence (the camera is not a person). You may get in (additional) trouble by tampering with physical evidence, no matter if it is your property, or not. – fraxinus Oct 11 '21 at 14:44
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    @fraxinus The question related to whether you may be compelled into disclosing the existence of such physical evidence – kisspuska Oct 11 '21 at 16:28
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    What about the case of dashcams where the video is erased automatically unless the user takes a specific action? Could you be punished not for deleting the video but instead for not taking the actions necessary to save it? – Caterpillaraoz Oct 11 '21 at 16:39
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    Destroying (and actively hiding) evidence is a crime, period. The fact of hiding/destroying the evidence may or may not be discovered, but this is not related to the Q. "Can I rip my dashcam?" No. "Can I delete the footage?" No. Do I have to disclose a previously hidden camera? No, this would be self-incriminating. – fraxinus Oct 11 '21 at 16:40
  • For this question, should we assume that you are not planning to admit it was your fault? If you admit it and pay the damage caused, I believe nothing would happen. It could still be meaningful to keep quiet about the camera (e.g. if you jumped a red light and caused an accident.) – Quora Feans Oct 11 '21 at 22:44
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    @kisspuska "you may not be compelled to be a witness against yourself. This would have such effect" This is definitely wrong. The 5th Amendment right to be free from self-incrimination does not apply to dash-cams and does not make you immune to punishment for destroying evidence which is a crime and prohibited in civil cases most severely as well. – ohwilleke Oct 11 '21 at 23:58
  • @Tetsujin A previous camera I owned had an impact sensor--which I turned off because it was running the card out saving bumps in the road. My current one doesn't have it--just a big enough card it's not going to overwrite in a relevant timeframe. – Loren Pechtel Oct 12 '21 at 00:33
  • @ohwilleke I agree. But I cannot see how you could be compelled to tell that the video evidence exists within the 1-day period for automatic erasing. – kisspuska Oct 12 '21 at 08:51
  • Possibly relevant detail to question: Are you a law-enforcement officer on duty? (Relevant because, AFAIK presently in the U.S., police and prosecutors enjoy immunity from criminal or civil liability for spoliation of evidence.) – feetwet Oct 13 '21 at 20:56
  • @QuoraFeans: If you think your insurance should pay, you DONT admit anything. Yes, you state truthfully what happens ("I drove through the crossing without noticing the red traffic light") but you NEVER say it was your fault. That's because then your insurance can claim that they only had to pay because you admitted it, and ask for your money back. – gnasher729 Apr 19 '22 at 18:38

4 Answers4

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As an example, under the laws of Colorado, USA, deleting the footage would be a crime. See CRS 18-8-610:

A person commits tampering with physical evidence if, believing that an official proceeding is pending or about to be instituted and acting without legal right or authority, he:

(a) Destroys, mutilates, conceals, removes, or alters physical evidence with intent to impair its verity or availability in the pending or prospective official proceeding;  

If you cause a crash, you should certainly believe that you are going to be sued, and a lawsuit is definitely an official proceeding. And it sounds like your purpose in deleting the footage is to prevent it from being used in that lawsuit. So you'd be clearly guilty under this law. It is a class 6 felony, carrying a sentence of 12-18 months in prison and a fine of $1,000 to $100,000.

It may be counterintuitive, but according to a law firm, a digital video would be considered physical evidence:

Physical evidence may include electronic records, videos, or audio recordings. This includes emails, text messages, social media messages, image files, video files, and computer files.

If you don't delete the video, it is likely to be demanded by the plaintiff during the discovery process so that it can be entered into evidence. Rule 37 of the Colorado Rules of Civil Procedure lists the sanctions that can be imposed if you refuse, such as:

  • charging you for legal fees incurred by the plaintiffs in trying to obtain it

  • assuming that the video proves whatever the plantiffs say it would show (e.g. that you were speeding, driving recklessly, etc)

  • entering a default judgment against you (the plaintiffs automatically win the suit, as if you had refused to show up in court)

  • holding you in contempt of court, which can lead to you being put in jail until you choose to comply, as well as fined.

Nate Eldredge
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    Would you be forced to mention the dashcam or are you allowed to remain silent on the existence of a dashcam if it is never brought up during discovery? – Neil Meyer Oct 11 '21 at 11:55
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    @NeilMeyer: I don't know for sure. However, people obviously know that dashcams and other video devices are a common thing, so the plaintiff would be foolish not to demand that you disclose the existence of any such recordings and produce them. – Nate Eldredge Oct 11 '21 at 12:15
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    @NateEldredge: I'm not a lawyer, so I don't know if you're right, but the law you quote at the beginning of your answer says you're guilty if you destroy evidence while "acting without legal right or authority". So how do we know if a person has the legal right to destroy their own dash cam video? – James Oct 11 '21 at 13:07
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    @James: It's a fair question. My guess is that there is no such right, and that this clause is meant for situations like having permission from the court to destroy the evidence. But I can't find a source addressing this one way or the other. – Nate Eldredge Oct 11 '21 at 13:31
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    While I agree with this answer, I'm not sure you should necessarily believe you'd be sued. If it's just resolved with the insurance or something, it may be avoided. –  Oct 11 '21 at 14:21
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    Would this apply to any video of the collision, such as from the dashcam of an uninvolved third party, or from a nearby security camera? I'm imagining the perspective of another driver who witnesses the crash and records it, but just doesn't want to get involved. They have as much idea about a "pending proceeding" as anyone involved in the crash, so it would seem illegal for them to delete the footage as well. Is it illegal to record someone else's crash and just keep on driving, thereby "concealing" evidence with the intent to make it unavailable in any official proceeding? – Nuclear Hoagie Oct 11 '21 at 15:49
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    @NuclearHoagie - That sounds like a great new question to ask. Here's a related article for video evidence, but not necessarily that of a third party. Actually, there's real-life discussion (in USA) about this, with Ring Doorbells (or the like) being used by Police to check video. Edit: see a Consumer Reports article – BruceWayne Oct 11 '21 at 17:04
  • "a digital video would be considered physical evidence" Is 'physical' being used here in the sense of 'not from testimony'? – Flater Oct 12 '21 at 07:40
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    Physical evidence may include electronic records, videos, or audio recordings. I like the first amendment implications of this interpretation, not in this context, but in the context of widespread surveillance. – dotancohen Oct 12 '21 at 15:56
  • I have had a couple of times where when I started my car there some kind of error accessing the storage card, and the dashcam didn't start recording automatically. If I hadn't noticed, stopped the car and reinserted the card there would have been no footage for that trip. In such a case, what would be the best course of action when one discovers there was no footage recorded? Provide the empty card and hope the court believes your story? – Andy Oct 12 '21 at 18:40
  • @Andy: What other course of action is there (that doesn't involve perjury)? – Nate Eldredge Oct 12 '21 at 18:49
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    @Andy: You'd want to hand it over, at the minimum so that the prosecution/opposing council could perform forensics and confirm that yes, the data didn't record at all, and not that there was deleted footage that can be recovered. You'd ideally want to get in front of the "bad facts" that it didn't record than have it become a publicly suggested fact during discovery that the document was erased. – Alexander The 1st Oct 12 '21 at 21:28
  • How do you comply while you're in jail? – Someone Mar 09 '23 at 05:14
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    @Someone: You could instruct your lawyer or a friend to retrieve the data and hand it over, or you could inform the court where it is and how to get it. If for some reason it can only be retrieved by you in person, I suppose we could imagine a situation where, once you agree to hand it over, you're taken to wherever it is under guard. – Nate Eldredge Mar 10 '23 at 16:05
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If things go to court, and the court knows that camera evidence existed, then two things can happen: 1. You may be in trouble for destroying evidence. 2. In a civil court, the judge can and likely will conclude that any evidence that you destroyed or refused to supply would be against you.

Details will be different from country to country.

gnasher729
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Under UK law this could be considered Perverting the course of justice, which includes The disposal, or fabricating, of evidence.

There are defences you can use such as Genuine mistake or error. So you could argue that you went to make a copy of the footage for the Police/Court and deleted it by accident. This of course would need to be argued in court.

Heddy
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Matt Bartlett
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    Im tempted (tongue in cheek of course) to add, "There are defenses you can use such as Genuine mistake or error, or being a member of HM government and finding a permanent email record under your non-personal official email address inconvenient"......... – Stilez Oct 12 '21 at 13:32
  • Being a member of the UK government doesn't protect you from jail if you got a speeding ticket and convinced your then wife and now ex-wife from saying she drove the car. – gnasher729 Apr 19 '22 at 18:41
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IANAL but I recommend setting a retention policy. Hopefully your dash cam will allow you to set a policy that it can implement automatigically. What you need specifically is that all footage will be erased after some time without any action on your part - unless you take action to preserve it.

For example, let us assume that footage shows Delinquent Dan pounding down some beers while driving. Then Dan crashes. Dan is in very bad shape. Dan can not control the dash cam anymore. The footage shows the police arriving. The footage shows an ambulance taking Dan away. The footage shows a tow truck hauling Dan's car to an impound lot.

The camera is still following retention policy and (according to policy) a week later has deleted all this footage and replaced it with footage of the impound lot. Dan knows he messed up big time and has kept his mouth shut.

The police want that footage and the camera is in their physical possession. Do they need a warrant to get it? (I don't know.) Will they try to take it before the week is up? (I don't know.) Do they know they have a week deadline to get it? (No, they don't.)

The downside of this is if one is not at fault and the footage would exonerate one then one must take action or else one loses one's footage. For example, what if Dan had not been drinking and the crash was totally not Dan's fault but Dan is at the hospital and Dan's car is in the impound lot. How would Dan stop the retention policy from destroying exonerating evidence?

emory
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    I wonder how this plays out for a civil case if you are served with a preservation order. I'd think this could require you to take action to stop the recording from being automatically deleted. – Nate Eldredge Oct 11 '21 at 12:19
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    From the above source that "Another event triggering this duty to preserver occurs when you reasonably anticipate litigation. When can you reasonably anticipate litigation? There are many situations which trigger reasonable anticipation of litigation; however, when a person files a complaint, or tells you or writes you about suing you or seeing you in court, your duty to preserve may have been triggered. When your I-am-about-to-be-sued-sense starts tingling [...] you should immediately stop any normal document disposal procedures immediately to prevent accusations of spoliation of evidence." – David Mulder Oct 11 '21 at 13:08
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    A week is probably too long. But I guess if you set it to 1 hour it could work because I assume the shock of a crash or the medical treatment you could be expected to get after any serious crash would take longer than an hour and your legal right to get medical treatment would probably be more important than any duty of preservation of evidence. But of course then the utility of the dash cam in case it would provide evidence to your benefit would also decrease. – Nobody Oct 11 '21 at 17:35
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    This question gets much more interesting if you have cryptographic (and possibly also steganographic, i.e. not exposing whether the camera was recording or not at the time of the event) storage and refuse to divulge the key or claim not to have the key or that it wasn't recording. Commercially available dash cams do not have such features but it would be a prudent way to design a DIY one. – R.. GitHub STOP HELPING ICE Oct 11 '21 at 18:27
  • @NateEldredge I am sure if you are served with a preservation order reasonably BEFORE the retention policy auto-deletes then you must prevent the deletion. I am sure the "triggering event" happens have auto-delete then you are clear. I am not sure what qualifies as a triggering event. – emory Oct 12 '21 at 11:51
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    @R..GitHubSTOPHELPINGICE That is technologically interesting, but I doubt it is legally interesting. A court could order you to share the key. Your camera could encrypt the footage with multiple keys and auto-delete the old keys but I do not see how that is fundamentally different than auto-deleting the footage itself. – emory Oct 12 '21 at 11:54
  • @emory - If there is any possibility that one would be charged criminally, then divulging of a key is protected as self-incriminating. – paulj Oct 12 '21 at 11:58
  • @paulj I would like to believe that is true. I agree that is what should be. But my understanding of current law is otherwise. (I hope to be proven wrong.) – emory Oct 12 '21 at 11:59
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    @Nobody I think people should think about these things. A habitual drunk driver should (1) get treatment for the alcohol problem and stop drunk driving; but failing that (2) not use a dash cam because it will likely cause more harm to the drunk driver than good. If one knows one is drunk and is still driving then why is one leaving the dash cam on? It would not be illegal to just turn it off, but it might be illegal to post-crash delete footage. – emory Oct 12 '21 at 12:04
  • @Nobody but for other people they should be auto-deleting after a certain period of time. Why do they have a dash cam? To record evidence in case of a crash or a ticket. After say a week, it should be obvious whether you need that evidence or not. If you do not need it, then it can only be used against you. Get rid of it if you legally can. – emory Oct 12 '21 at 12:06
  • Auto-retention depends on the device being on as well as the details of the software. For instance, my dash cam only starts deleting when it gets low on storage, not based on some time interval. If I hard were to hard-wire it to the battery (which I don't) it would only record based on detection certain types of activity, so just sitting in the impound lot would likely add very little footage. – Andy Oct 12 '21 at 18:37
  • @Andy most of them work the way you describe (deleting when low on storage), but if you have 1 week of storage space on your device it works out to be the same thing. – emory Oct 12 '21 at 18:57
  • @emory As far as I know, the Supreme Court has not yet ruled on the question of being compelled to provide an encryption key as a violation of the 5th Amendment, but the 11th Circuit Court of Appeals has ruled that it is indeed a violation. – reirab Oct 13 '21 at 05:42
  • @reirab I would not pretend to understand the nuances, but I think it is far from settled https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/06/07/the-fifth-amendment-limits-on-forced-decryption-and-applying-the-foregone-conclusion-doctrine/ – emory Oct 13 '21 at 15:48
  • @reirab regardless you bought and installed a dash cam for a reason - to gather exculpatory evidence. You should have realized it would also record incriminating evidence as well - and not done criminal things on tape. You can't "forget" the password for the incriminating parts and then "remember" it for the exculpatory parts. – emory Oct 13 '21 at 15:51
  • @emory Yes, it isn't settled, but that ruling is the highest-level one to date specifically on the particular question of whether you can be compelled to provide an encryption key, as far as I know. – reirab Oct 13 '21 at 17:09
  • I'm not so sure the question about encryption is very relevant for a civil trial. Unlike a criminal trial, in a civil trial courts are allowed to draw negative inferences from pleading the 5th. Which means ultimately it's going to be treated as an admission of guilt. – Chuu Oct 13 '21 at 20:55
  • @reirab no one is going to even think about compelling you to provide your key. You were involved in an accident. You have a dash cam. You were asked for unencrypted footage. You did not provide it. You did not provide a good reason why you could not provide it. The other side needs to prove you were at fault by a preponderance of the evidence. They can use spoliation inference - so maybe they would actually prefer you don't provide the footage. – emory Oct 13 '21 at 23:47
  • @emory I was specifically responding to your comment about criminal cases. Agreed that civil cases are a different matter. – reirab Oct 17 '21 at 04:25
  • @emory " I think people should think about these things. A habitual drunk driver should (1) get treatment for the alcohol problem and stop drunk driving; but failing that (2) not use a dash cam because it will likely cause more harm to the drunk driver than good. If one knows one is drunk and is still driving then why is one leaving the dash cam on? It would not be illegal to just turn it off, but it might be illegal to post-crash delete footage. " Perhaps a person normally does not drive drunk, but did one time, and was too intoxicated to think about this? – Someone Mar 09 '23 at 05:18