Authentication is a prerequisite for the admissibility of video evidence.  As discussed in several articles on this website, failure by the tendering party to lead sufficient reliable evidence to prove authentication will result in a ruling of inadmissibility.  Such was the case in the May 21, 2018 ruling in State of New York v. Caleca (Supreme Court, State of New York, Criminal Term, Part K-21, Queens County, Indictment No. 221/2015).

In this case, the defendant was indicted on numerous counts arising out of an incident in which it was alleged that he ran over the complainant with his truck.  Portions of the incident were captured by different surveillance video cameras; however several seconds in the middle of the incident were missing from the tendered video evidence.  The prosecution made an in limineapplication to permit the use of the surveillance video at trial.  This article analyzes the evidence presented in this application and the admissibility ruling.

Prosecution Evidence

The prosecution called four witnesses as part of its application.

Witness 1 – The NYPD Detective

The case detective was assigned to the file on August 6, 2014, seven days after the incident occurred.  On that day, he went to the location of the incident to obtain surveillance video from a nearby business.  He observed external cameras but could not say how many cameras were present, nor could he say how many cameras were shown on the DVR’s monitor.  He testified that the business owner showed him the DVR and advised him that it was a motion activated system.  By viewing the live feed, the detective was satisfied that it was working correctly and he also noted the offset of the date and time stamp. The detective had written in his DD5 that when he arrived at the business he was given the surveillance video by the business owner but he could not recall that when he testified in court. Conversely, he testified that he previewed the video of the incident on the DVR monitor as captured by two cameras and downloaded that video to his flash drive as AVI files.  He could not recall if other cameras also captured portions of the incident.  He then uploaded the videos to the NYPD computer and confirmed that the videos that he uploaded appeared to be the same ones he downloaded from the business.  On August 8, 2014, the detective returned to the business and downloaded video from the DVR as AVI files showing the suspect vehicle two days before the incident in daylight conditions.  It too was uploaded to the NYPD system and was not edited or altered.  The detective later downloaded video from the NYPD system onto a disc that he brought to court and confirmed the contents.  He said that he never edited or altered the video evidence.

Witness 2 – The Surveillance Camera Provider Representative

The surveillance camera provider testified that there were two outside cameras at the corners of the business and one above the front door.  He testified in detail as to the workings of the cameras and DVR, including motion activation functionality.  He said that once recorded to the DVR, it is not possible to alter or edit the video in the DVR, nor could video be uploaded into the DVR other than from the camera feed. He testified that within the DVR is a log and if selected, the log will provide information about recording and downloading times.  Once a file is full, a new file will be created and there may be a slight gap in between the two files.

Witness 3 – Participant in Incident

A participant in the incident viewed the video evidence, was aware of the camera locations, recognized himself in the videos and testified that they fairly and accurately depicted what occurred in his presence on the night of July 30, 2014.

Witness 4 – Employee of Business

The employee testified as to camera placement, confirmed that the surveillance system had not been changed since the date of the incident and that it was motion activated.  She also testified as to the location of the DVR and monitor.

Defence Evidence

The defence called a forensic video analyst who was qualified as an expert witness by the Court.  The analyst was present for the prosecution evidence and also went to the business and examined the surveillance system and downloaded some video samples for analysis.  The analyst testified as to the technical details of the cameras, their location and the DVR itself.  He noted that the DVR created a metadata log when video is downloaded, which included the following information:

• requested start and stop time of the video
• number of cameras requested
• date and time the video was downloaded

The metadata of the downloaded file also contains a file creation or modification date.  The analyst agreed with the surveillance company witness that the DVR is not capable of editing or altering a video, nor can video be uploaded to the DVR.  Once exported however, an AVI file can be edited.

Based on his examination of the surveillance system and experimentation during both daytime and nighttime conditions, it was the analyst’s opinion that on the night of the incident, the door camera should have been activated and would have captured whatever was within its purview.  He also noted that the video files from the night of the event that were downloaded by the detective did not contain a data log, though they should have had such a log as part of the data.  The video files obtained by the detective from July 29, 2014 and the ones downloaded by the analyst did contain such a log.  Since the log is automatically downloaded with a file export, if an AVI file does not have a log, it could not have been downloaded directly from the DVR.  Finally, the analyst noted that the video files of the event showed a creation date of July 31 in the metadata, six days before the detective said he downloaded the video.

The Ruling

The Court did not accept the evidence of the detective that he downloaded the video directly from the DVR.  This decision was based on the detective’s lack of specific memory regarding the retrieval of the video on August 6, 2014, his failure to remember how many external cameras were present, his DD5 which showed that picked up the downloaded video from an employee of the business and equivocal testimony about the downloading of the video files.  The Court was further troubled by the evidence of the detective that the video was downloaded on August 6 when the video files themselves show a download date of July 31.

Conversely, the Court accepted most of the evidence given by the other prosecution witnesses, including the participant who said that the video accurately portrayed the event.

The Court also accepted and adopted the evidence of the analyst that one of the cameras, from which no video was collected, would likely have recorded the missing portions of the event.

Stating the relevant law to be applied, the Court noted that:

…in order for a videotape or audiotape to be admitted into evidence, its accuracy or authenticity must be established by clear and convincing proof that it is genuine and that there has been no tampering with it.

And further that:

As the ultimate object of the authentication requirement is to insure the accuracy of the

sought to be admitted into evidence, any person having the requisite knowledge of the facts may verify the evidence. Therefore, a videotape may be authenticated by a witness to the recorded events, and, in addition, by testimony of the operator, installer or maintainer of the equipment that the subject matter was accurately recorded, or by chain of custody evidence establishing “acceptable inferences of reasonable accuracy and freedom from tampering.” Further, “[t]estimony, expert or otherwise, may also establish that a videotape ‘truly and accurately represents what was before the camera’.” These methods of authentication are illustrative and are not exclusive. Where a sufficient foundation has been laid for the admittance of a media recording, and that recording contains minor gaps, lapses of time or glitches, the recording will nevertheless be admissible provided the breaks or gaps do not invite undue speculation of the events depicted so as to preclude its admission into evidence. A minor gap in a recording that does not invite undue speculation implicates the weight accorded the evidence, not its admissibility. Even when original media evidence is destroyed or not preserved by the police or even when the interaction is not recorded in its entirety, a copy or portions of the audio or video may be admissible, provided a foundation is laid and there has been no bad faith, lack of due diligence or claims of alteration or tampering, although an adverse inference may be required. [case citations omitted]

The Court expressed concern about the lack of video of the second segment of the incident when on the basis of the accepted evidence, it should have been recorded.  The absence of that video gave rise to the “strong possibility that the absence of video was not a result of happenstance or lack of due diligence but was the result of bad faith.”  Given the missing download logs, “the People have failed to demonstrate by clear and convincing evidence, the accuracy or authenticity that the nighttime videos are genuine and that there has been no tampering with them.”

As regards the testimony of the participant as to the accuracy of the video, even though the Court found his evidence to be credible, it noted that he was not able to credibly testify that the videos were a complete portrayal of the event in light of the fact that several seconds in the middle of the event were not recorded. On this point, the Court ruled:

While a minor gap in a recording implicates the weight accorded the evidence, not its admissibility, that is not the case where, as here, the gap invites juror conjecture and undue speculation regarding the events depicted, thus precluding admission into evidence. [case citations omitted]

In conclusion, the Court ruled that:

After the hearing and the credible evidence and testimony presented, there is insufficient proof of accuracy and authenticity of the nighttime AVI video files from July 30, 2014 to allow them to be offered into evidence. The infirmities concerning chain of custody, possible tampering and possible destruction of video from the camera over the door that likely recorded the second segment of the interaction raises serious issues as to the integrity of the video files actually offered by the People. Further, given the likelihood that the jury will speculate as to what happened during those crucial missing seconds, the People’s application to admit the nighttime video evidence from July 30, 2014 is denied.

Analysis

The state has the ability to dedicate considerable resources to the prosecution of defendants. With this power comes the responsibility to present properly admissible evidence.  The burden on the prosecution to authenticate tendered video evidence is far from insurmountable.  What is required is thoughtful consideration of the following elements:

• the configuration and operation of the system that recorded the video evidence
• the proper, forensically sound exporting of all potentially relevant video files from the DVR
• information as to any editing or alteration of the exported video evidence

From my review of the case law in North America and the consultations I have provided on many video-based cases, where there is a failure to authenticate video evidence, the errors are almost always human rather than technical.  The above noted authentication elements must be established very early in an investigation while memories are fresh, evidence can be collected and errors corrected. It is very unlikely that anything nefarious was involved in the collection and presentation of video evidence in the Caleca case.  The evidence of the detective was less than ideal and created troubling gaps in the authentication chain.  While another judge might have decided the application differently, the reality is that the video evidence was not fully and properly authenticated and the ruling follows established case law.  As a side note, the Court’s ruling only relates to the admissibility of the video evidence, not the overall case.  The prosecution is still free to continue its case with other admissible evidence.