Date and time stamps are superimposed on video images for the laudatory purpose of indicating the time the events depicted actually occurred.  In reality, date and time stamps are often inaccurate.  Inaccuracy occurs for a variety of reasons including failure to account for Daylight Savings Time, failure to account for the correct time zone, never setting the correct date and time at the outset or deliberately setting the wrong date and time.  An issue that is frequently litigated is the impact that an inaccurate date and time stamp should have on the question of authentication.

The typical argument that is made by the party opposing the admissibility of video evidence on authentication grounds is that if the date and time stamp is incorrect, then the reliability of the video as a whole is called into question.  What this “sky is falling” argument fails to address is the fact that the date and time stamp is superimposed on the video images, it is not part of the actual event that was recorded.

A number of courts in the United States have considered this argument.  In State of California v. D.S., 2012 WL 5411556 (Cal.App. 1 Dist.), the California Court of Appeals, first District, held that the possibility of minor inaccuracies in a date and time stamp goes to the weight of the video evidence, not authenticity, and therefore not admissibility.  In State of California v. Colbert, 2014 WL 4243576 (Cal.App. 2 Dist.), the prosecution in this homicide case sought to tender surveillance video purporting to show the defendant arriving at and leaving his residential hotel at relevant times.  The state called the manager of the hotel to testify as to the accuracy of the date and time stamp of the video images.  She gave conflicting evidence as to how far out the date and time stamp was from the actual time and the defendant sought to have the video evidence excluded on the basis that her evidence was too vague to constitute adequate authentication.  The trial judge ruled that the manager’s evidence laid an adequate foundation for authentication and that the lack of certainty of her evidence was a question of weight not admissibility.  On appeal, the California Court of Appeals, Second District, ruled that conflicting views of date and time stamp reliability go to the weight of the evidence, not its admissibility.  Thus, the evidence remains admissible for use at trial and the parties can argue what impact inaccuracies in the date and time stamp should have when assessing the video evidence.  In State of Tennessee v. Long, 2017 WL 2958700, the Court of Criminal Appeals of Tennessee held that an inaccurate date and time stamp had no impact on authentication given that a witness was able to confirm that the recorded event was a true and accurate depiction of what occurred.

Canadian courts have also faced this issue.  The accuracy of the date and time stamp and its impact on admissibility was considered by the Alberta Court of Appeal in R. v. Saddleback, 2016 ABCA 204 (Alberta Court of Appeal).  The appellant argued on appeal that the video evidence was inadmissible because there was insufficient evidence as to the accuracy of the date and time stamp and that any inaccuracy meant the video was inherently unreliable.  The Court ruled that accuracy of the date and time stamp is a question of weight and is not determinative as to whether the video accurately represents the particular event.

What if there is no date and time stamp at all?  Does that affect admissibility?  In Callaway v. State of Maryland, 2016 WL 7379300, the Court of Special Appeals of Maryland) considered the relevancy (rather than authentication) of video evidence that did not bear a date and time stamp.  So long as there was evidence that showed that the video pertained to the events in issue, the court ruled that the absence of a date and time stamp was a question of weight, not admissibility.

I recommend that when video evidence is obtained from a scene, the witness should compare the time shown on the DVR with the correct time and note the offset.  That is very helpful when introducing and using the video evidence at trial, particularly when the time an event occurred is important.

In summary, inaccuracies in the date and time stamp are questions of weight, not admissibility.  Being able to lead evidence as to the offset is helpful in fully utilizing the video evidence.