Most serious cases have surveillance video evidence that may prove to be valuable.  When I have such a case, my first task is to ascertain how I will authenticate the video.  From experience, I know that I need evidence that covers three key areas:

1. CCTV System: Details of the CCTV system that recorded the images. This should include the make and model of the system, camera placement, accuracy of the date and time stamp, frame rate, whether the cameras record constantly, are on a rotational cycle, are motion activated or operated by a person.
2. Export: Who exported the video from the DVR or server? The export may have been done by the merchant, security personnel, homeowner or a police officer.  The exporter must be interviewed to determine how the exporting was performed, whether all camera views were collected and whether any editing was done.  Also of interest is whether further image compression was occasioned by the method used for exporting.
3. Post-Export Processing: Once the exported video was collected, what happened to the video evidence? Was it analyzed by a forensic video analyst?  What processes were undertaken?  Were changes made to the video?  Was the video edited in any impermissible way?

One of the most common errors attorneys make regarding video evidence is failing to gather and present sufficient testimonial evidence to cover the above authentication requirements.  Examples of cases where insufficient authentication evidence was presented, resulting in the video evidence being ruled inadmissible, are as follows:

Canadian Cases

1. v. Doughty, 2009 ABPC 8 (Alberta Provincial Court)

In this shoplifting case, the prosecution failed to call the person who actually selected the appropriate cameras and exported the relevant video sequences.  Instead, a supervisor testified but was unable to answer any questions about exporting, CCTV system operation, accuracy of the date and time stamp or whether all relevant video had been exported.

1. v. Chevannes, 2011 CarswellOnt 14837 (Ontario Court of Justice)

The court ruled that authentication is not established simply by an officer tendering a copy of the video obtained from the establishment where the video system was located, even if the officer can testify as to the accuracy of the copy.  More evidence is required to authenticate video evidence.

U.S. Cases

State of Maryland v. Washington, 406 Md. 642, 961 A.2d 1110 (2008, Court of Appeals of Maryland)

Following a shooting outside a bar, the bar owner hired a technician to export video from the DVR system onto a CD for use by the police.  At trial, the technician was not called to testify.  The defense argued that the failure to call the technician made it impossible to properly authenticate the video evidence.  While this challenge was unsuccessful at trial and on the first appeal, the Court of Appeals was of a different view.  In ruling the video evidence inadmissible, the Court faulted the prosecution for calling no evidence as to the attributes of the CCTV system, exporting from the DVR, creation of the compilation video, processing of the images or their reliability.  In short, the prosecution failed to lead any evidence on the threshold issue of authentication.

State of New Jersey v. Nieves, 2013 WL 4104088 (Superior Court of New Jersey, Appellate Division)

The state tendered a composite video consisting of video from three different establishments.  Two of the videos were not properly authenticated nor did they have accurate date and time stamps or other indicators of reliability.  The state expert used those two videos plus a third video that was properly authenticated and then created a video timeline of what he theorized happened and in what order.  The Appellate Division of the Superior Court of New Jersey upheld the trial judge’s ruling that the two non-authenticated videos and the composite video were inadmissible.

Commonwealth of Massachusetts v. Connolly, (2017) 91 Mass.App.Ct. 580 (Appeals Court of Massachusetts)

The only witness tendered by the prosecution was a police officer who viewed video of the alleged assault in circumstances where the video itself had been inadvertently erased shortly after the officer viewed the video.  The state sought to prove its case based solely on what the officer viewed on the video.  The defense argued that to admit such evidence would be unfair because cross examining the officer would be of limited value given that neither the defense nor the jury had ever seen the video that was the sole subject of the officer’s testimony.  The Appeals Court held that in order for the officer’s testimony (the secondary evidence) to be considered, the state first had to lay an adequate foundation for authentication of the video (the primary evidence).  Since the state led no evidence as to the CCTV system, location of cameras, date and time stamp accuracy, how the video was stored before it was erased and whether it had been altered before the officer viewed it, the requirement for authentication was not met and the officer’s testimony about the content of the video was wrongly admitted at trial.

These cases should be viewed as cautionary tales, examples of what not to do when seeking to have video evidence ruled admissible.  The requirements for video authentication are not overly demanding and are usually easily met, provided the attorney addresses his/her mind to the issue.  Further posts will address how to successfully authenticate video evidence.