Who is permitted to express an opinion on identification of people shown in surveillance video? That was one of two issues before the Appellate Division of the Superior Court of New Jersey in State v. Sweet, 2019 WL 5250809. 

Issue 1 – Video Identification

In Sweet, two detectives testified before the jury that the defendant was the person shown in certain surveillance videos. Neither detective had previous familiarity with the defendant nor any other specialized knowledge that gave them abilities of identification superior to that of the jury. While the jury was told to disregard the evidence of the second detective, no such warning was given regarding the first detective’s identification evidence. Many courts have stated that in such circumstances, permitting video identification evidence by a person unfamiliar with the person shown constitutes reversible error. In this case, identification was the sole issue and there was no evidence linking the defendant to the crime other than it was the victim’s “intuition” that the defendant was her masked attacker. The Appellate Division noted that the detective had no more insight into the suspect’s identity than the jury and he should not have been allowed to testify on this point. This resulted in the conviction being overturned and a new trial ordered. 

Issue 2 – Video Authentication

Surveillance video admitted as evidence was authenticated by the detective rather than the owner or operator of the CCTV system. The detective testified that he watched the video on the CCTV system, found the relevant event, and determined the accuracy of the time and date stamp by comparing the DVR’s data to his cellphone. He further confirmed that the location depicted in the video was a location familiar to the detective. The defendant appealed his conviction and, inter alia, this ruling. The Appellate Division noted that under NJRE 901 authentication does not require absolute certainty or conclusive proof. A prima facie showing of authenticity suffices with the final decision to be made by the jury. Any person with requisite knowledge of the facts depicted in the images is capable of authenticating them and the trial judge did not err in finding that the detective had sufficiently authenticated the CCTV video. It was not necessary to additionally present testimony by the CCTV system owner or operator. 

Analysis

Securing a conviction using inadmissible evidence as was done in this case defeats the purpose of having the trial. When the appellate court orders a retrial, that does not mean there will necessarily be one as the prosecutor may decide there is insufficient admissible evidence to warrant a new trial. For this reason, the trial must be conducted correctly the first time. Lay opinion testimony on video identification is limited to people who have previous familiarity with the person depicted. Without that logical limitation, counsel could call unlimited witnesses to the stand to venture a guess on who is shown in the video, a move that would be of no assistance to the jury and would invite a retrial. Counsel must guard against such evidence being given by helpful but unqualified witnesses. Additionally, while it is sometimes helpful to call the owner or operator of the system that recorded the video, a police officer is quite capable of authenticating surveillance video provided sufficient information is obtained about the video itself, how it was recorded, and the location depicted.