Surveillance Video- When It Comes In and When It Doesn’t

Video evidence authentication has received a fair amount of treatment on this blog. The topic remains an area of practical significance given the prevalence of video evidence in criminal trials and how common it is for the prosecution’s case to hinge on the admission of video. We are increasingly a video-focused society. Between home security cam, doorbell cam, body-worn cam, in-car cam, pole cam, and even parking lot cam, juries increasingly expect to see video, whether the incident in question occurred outside a home, near a business, or on the roadside. In this post, I will focus on surveillance video. As discussed by my colleague Jeff Welty, a party generally authenticates surveillance video in one of two ways. The first method involves calling a witness who was present for the events captured on video and eliciting testimony that the video “fairly and accurately depicts” what happened. The video is then admitted for illustrative purposes. The second method, often referred to as the “silent witness foundation,” involves eliciting testimony that the recording equipment was functioning properly and that the video introduced at trial shows the same footage as that captured by the recording. The video can then be admitted for substantive purposes. See G.S. 8-97; also see this prior post for a discussion of the (generally minimal) difference between illustrative and substantive purposes. When the State seeks to admit surveillance video at trial, the first method generally relies on a civilian such as a store clerk or loss prevention officer who was [...]