EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, December 11, 2011

Can I Get A Copy: Court Of Appeals Of North Carolina Finds Copy Of Surveillance Video Admissible Under Rule 1004(a)

Like its federal counterpartNorth Carolina Rule of Evidence 1002, the Best Evidence Rule, provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.

That said, like its federal counterpartNorth Carolina Rule of Evidence 1004(a) provides that

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:

all the originals are lost or destroyed, and not by the proponent acting in bad faith....

In its recent opinion in State v. Mitchell, 2011 WL 6046201 (N.C.App. 2011), the Court of Appeals of North Carolina used North Carolina Rule of Evidence 1004(a) to allow for the admission of a copy of convenience store surveillance tape. My question: Why didn't the court simply rely on North Carolina Rule of Evidence 1003?

In Mitchell, Tayari Mitchell was convicted of possession of one-half of an ounce of marijuana or less and possession of heroin. A convenience store surveillance tape captured these alleged crimes and officers used his hand-held camera to record a thirty-second segment from one of the surveillance cameras.

The officers recorded the video by aiming the video camera at the computer screen and recording the images from the surveillance tape. After recording the video on the hand-held video camera, and checking again to make sure the video matched what they had viewed on the screen, the officers finalized the video recording by making sure it could not be recorded over. Evidence at trial showed the original recording was no longer available due to the store's system automatically recording over itself, thereby deleting any previous recording, after seven days.

After he was convicted, Mitchell appealed, claiming, inter alia, that the admission of the copy violated the Best Evidence Rule

because the State put forth no reasonable effort to obtain the original video before the expiration of the seven-day time period before which the video surveillance was erased from the system.

The Court of Appeals of North Carolina disagreed, concluding that

The State showed that at the time of the investigation, the function of the surveillance computer permitting the recording to be downloaded was not working properly and prevented the officers from obtaining the original surveillance video from the hard drive. Officer Wall testified as to each step he took in procuring the secondary video and Officer Beasley explained that the computer automatically erases video every seven days. Due to this, the original video was unavailable at trial and was not recoverable. This does not show that the State acted in bad faith.

But here's my question: Why didn't the State argue and/or the court find that the copy was simply admissible under North Carolina Rule of Evidence 1003, which provides that

A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

The only thing that I can think is that Mitchell (could have) argued that it was unfair to admit the copy in lieu of the original because it was only a 30 second excerpt.



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