There are occasions when investigators are unable to export an original video recording from the DVR and therefore use a video camera to record the CCTV monitor as it plays the relevant video. This less-than-ideal solution for video capture makes forensic video analysts bristle and opposing counsel cringe. What does the law say about this?
This article builds upon earlier articles on this site about monitor recordings (Authenticating Monitor Photographs; Should Video Recordings of Monitors be Ruled Authentic?). To understand this issue more fully, I recommend reading those articles first.
A US appellate court recently had an opportunity to weigh in on this issue in Watts v. Chastain, 2022 WL 17171097 (Court of Appeals of South Carolina). Relevant CCTV evidence was obtained by the police in circumstances that gave rise to objections by the plaintiff. A business CCTV system recorded video that was relevant to issues before the court. Owing to an apparent lack of knowledge by the business owner and the police, they were not able to export the recording from the DVR. Instead, the police set up a tripod and camera in front of the CCTV monitor and video recorded the monitor as it played the relevant video. The original video was eventually overwritten and the only copy that remained was the one recorded by the police.
The plaintiff objected to the admission of the recording for lack of authenticity and other reasons. The trial judge ruled that the recording complied with Rules 1001-1004 of the SCRE because it was a duplication of the original video, there was no challenge to the authenticity of the original video, and the original video was not producible. The Court of Appeals agreed with the trial judge’s analysis and conclusion, and noted that the witness tendering the video evidence need not be an expert but should have sufficient knowledge to describe the recording process. The Court found that the police officer presented sufficient knowledge about his recording to authenticate the video evidence presented (not the original).
Analysis
The decision in Watts v. Chastain is consistent with previous decisions on this subject, as reflected in the earlier articles cited above. It represents a rather lax approach to authentication but is legally defensible. The best version of CCTV video evidence is a forensically sound digital file that has been exported from the DVR by a person with knowledge of the requisite procedure. Using this methodology will generate a faithful replication of the original video file with its corresponding metadata. When through lack of knowledge or other reasons this procedure is not followed, what the court is left with is a second generation copy with no original metadata and decreased visual information and image quality. Courts permit such evidence on the basis that the recording of the CCTV monitor can be authenticated and that even a substandard version is better than no version at all.
Whether this methodology is problematic depends upon what the CCTV images are being used for. If the recording is being used to provide a general overview of a scene or incident, likely little is lost using a monitor recording. Conversely, if the parties are looking for more intricate details, they will face more challenges given that the original metadata is absent, and the image quality of the secondary recording will be less than ideal. From a legal perspective, this procedure is permissible. However, if the CCTV recording is important, it would be preferable for a person with knowledge to be tasked with obtaining the original video in a forensically sound manner. That will benefit all parties and the court.