In an earlier post, I set out the evidence that was required in order to properly authenticate surveillance video, namely evidence about the system that captured the images, exporting and post-exporting processing of the images. Depending on the case, this may require as many as three witnesses or as few as one. Below are a series of cases wherein sufficient authentication evidence was led resulting in a favorable admissibility ruling. These cases set out the varied approaches that may be used to achieve that objective.
Canadian Cases
- v. Bulldog, 2015 ABCA 251 (Alberta Court of Appeal)
In this case it argued that the tendering party was required to call one or more of the following witnesses in order to authenticate video evidence:
- the camera operator
- an eyewitness present when the video was recorded who can testify as to video accuracy
- a person qualified to state that the video is accurate
- an expert witness
The Court disagreed with this formulaic proposition noting that these categories are not exhaustive. Other evidence may be employed to establish authentication, accuracy and fairness, including the circumstantial evidence of witnesses.
- v. He, 2017 ONCJ 790 (Ontario Court of Justice)
An incident occurred outside of a business but was captured by the business’s CCTV system. The officer attended the business the next day, watched the incident on the CCTV system and then observed the manager copy the video onto a DVD that the officer brought for that purpose. At trial, only the officer testified regarding the authentication of the video evidence, a situation argued by the defense to be fatally flawed.
Relying on R. v. Bulldog, the Court noted that circumstantial evidence may be used to authenticate real evidence, in this case the video evidence. It is the whole of the evidence that must establish that the video is substantially accurate and a fair depiction of the event. Here, the CCTV system operated automatically, the copying process is a familiar procedure and did not require a side by side comparison. Nothing in the evidence cast doubt on the integrity of the video evidence. The testimony of the manager would have added little on this point.
Of further note was direct evidence that independently confirmed the accuracy of the video evidence. The arrival of the police, the actions of the police and the defendant, and the arrival of the ambulance were all captured on the same video, further confirming its accuracy.
U.S. Cases
Walthall v. State of Georgia, 281 Ga.App. 434, 636 S.E.2d 126 (2006, Georgia Court of Appeals)
Authentication can be proven non-technically by having witnesses depicted in the video testify as to the accuracy of the images. This approach was exemplified in Walthall, a case that dealt with the aggravated sexual molestation and sexual exploitation of children. The defendant allegedly videotaped himself engaging in sexual acts with two young boys as well as other improper conduct. He argued on appeal that the trial court erred in admitting damaging photographs and video recordings without the State properly authenticating them. The Court of Appeals ruled that the State properly authenticated the images by having the boys testify as to the fairness and accuracy of the images. See also State of Tennessee v. Ratliff, 2008 WL 450628 (Tennessee Court of Criminal Appeals), wherein the Court ruled that someone familiar with the setting and people involved in a child molestation video could authenticate the video even though she was not present when the video was made.
State of Nevada v. Archanian, 145 P.3d 1008 (2006, Nevada Supreme Court)
In this murder prosecution, a key piece of evidence was the digital video recorded by the store’s surveillance system. The defendant argued that the State had not properly authenticated the video evidence. An ADT Security technician, who did not testify, connected the store’s DVR to a VCR and monitor, thereby allowing the detective to review the images and at the same time created a VHS videotape of the recorded events. The VHS tape was then given to a police video technician who isolated the relevant camera view and highlighted certain portions of the video. It was this composite videotape that was shown to the jury. The detective testified that the composite videotape was an accurate representation of what he observed when the ADT technician played the original digital recording for him. During the voir dire, the detective acknowledged that he had no way of knowing whether the images were accurately transferred from the original digital recording to the VHS version but testified that they appeared to be the same. The detective also testified that the hard drive had been seized and was in police custody.
The defendant argued that the trial court erred in admitting the video evidence as the State had not properly authenticated it by calling the ADT technician who downloaded the images and copied them for the State. The Supreme Court held that this would have been the preferred method to establish the foundational link between the digital surveillance recording and the VHS version. However, the Court ruled that the detective’s testimony was sufficient to establish authentication and noted that the defense had access to the hard drive and the ADT technician had they chosen to make their own inquiries. While this latter obiter comment seems to place the onus on the defense to examine authentication, it is clear that the detective’s evidence was the foundation for authentication.
State of Arizona v. Haight-Gyuro, 218 Ariz. 356, 186 P.3d 33 (2008, Court of Appeals of Arizona)
The Court of Appeals stated that “a flexible approach is appropriate, allowing a trial court to consider the unique facts and circumstances in each case and the purpose for which the evidence is being offered in deciding whether the evidence has been properly authenticated.” The store employee testified as to camera placement and selection, the CCTV system, date and time stamp offset, and the exporting of the relevant video segments. Interestingly, in ruling that authentication had been established, the Court also relied of the similarity of the stolen product shown on the surveillance video and the items found in the defendant’s vehicle upon arrest. This shows flexibility in finding proof of authentication.
State of Indiana v. Rogers, 902 N.E.2d 871 (2009, Court of Appeals of Indiana)
The store supervisor reviewed the CCTV images from the multi-camera digital system and copied the relevant camera views to a CD. The CD was then given to the prosecutor’s office where an investigator copied the content, then edited the video images for relevance and created four still images for the court. At trial, the store supervisor testified as to camera placement, selection of relevant cameras and confirmed that the exporting properly replicated what was on the hard drive. He further confirmed that the images produced by the prosecutor’s office were fair and accurate portrayals of the original images. The Court of Appeals ruled that the evidence presented met the requirements of the silent witness theory and were properly authenticated.
State of Texas v. Thierry, 288 S.W.3d 80 (2009, Court of Appeals of Texas)
In this theft case, the loss prevention officer testified as to the workings of the CCTV system and how he was able to use to computer data on the relevant receipts to locate the relevant video images. He exported the video and confirmed that the copied video fairly and accurately replicated what was on the server. He further testified that no alterations or deletions were made to the video evidence. This was a classic example of silent witness theory authentication.
State of Ohio v. Freeze, 2012 WL 6115671 (Ohio App. 12 Dist.)
The officer testified that he viewed the video in the business and confirmed that the date and time stamp were accurate. While present, the officer viewed the store owner export the video to a DVD which the officer confirmed was an accurate representation of what he viewed on the monitor. The officer was also able to testify as to the location of the camera and the locations shown in the video. The Court of Appeals of Ohio held that the State had properly authenticated the video and that the trial court was correct to admit the video evidence.
The above cases show a flexible approach taken by the courts in evaluating whether the tendering party has sufficiently authenticated video evidence so as to favor admissibility.