Technologists tell us that we are in the age of ubiquitous video. It seems that almost everything is being recorded. Naturally, this means that more and more video recordings are being introduced in court. A recent decision by the court of appeals is a helpful reminder of the two primary methods of authenticating video. A word about ubiquitous video. Every year it is cheaper and easier to take, to store, and to share video recordings. The graph below illustrates the rate at which video footage is being uploaded to YouTube and so conveys some sense of magnitude of the ongoing explosion of video recording. State v. Fleming. The rise of video was on full display in State v. Fleming, decided about three weeks ago. The case arose when two men worked together to steal purses from several department stores. One of the thefts was caught on the store’s surveillance video. An officer eventually located and interviewed one of the perpetrators, and that interview was also recorded on video. At trial, both videos were introduced. The court of appeals found that both were properly authenticated, though a different foundation was used for each video. The interview: “fair and accurate.” Although it sounds like it could be the slogan for a television news program, “fair and accurate” is actually the most common foundation for admitting photographs and videos. A witness testifies that a photograph or a video fairly and accurately depicts what the witness saw, and says that the photograph or the video [...]
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