Tuesday, June 24, 2014
Silent Night: Supreme Court Adopts Test For Authenticating Surveillance Recordings
A defendant allegedly steals a vacuum cleaner from a store. At trial, the prosecution seeks to authenticate and admit a surveillance recording of the robbery. How does the prosecution go about authenticating the recording? As noted by the Supreme Court of New Hampshire in State v. Stangle, 2014 WL 2782016 (N.H. 2014),
"Virtually all jurisdictions allow the introduction of recordings pursuant to ‘silent witness' authentication, but jurisdictions differ on what evidentiary showing is required to satisfy the ‘silent witness' standard."...The approaches fall into two general categories....Some jurisdictions adopt a flexible, less formulaic approach focusing on the facts of each case....
Other jurisdictions adopt a multi-factor test for determining the admissibility of photographs or videos....Some of the factors those jurisdictions consider are: "(1) how the recording system operates, (2) the system's working condition and pattern of maintenance, (3) who operates the system, has access to it, and maintains its archive[s]... (4) the quality of the recording, and (5) the means by which the recording was copied to the format viewed at trial."...However, even those jurisdictions that have adopted "a multi-factor analysis tend to acknowledge that the facts of each case may differ."...They "neither require every factor be met nor rule out taking other circumstances into account in particular cases."
So, which approach did the court adopt?
In January 2012, while shopping in a store in Woodsville, the defendant placed a vacuum cleaner in his shopping cart, passed through an unattended register line without paying, and proceeded to the customer service area to "return" the vacuum cleaner. Although the defendant lacked a receipt for the vacuum cleaner, a store employee accepted the exchange, recorded the number of the defendant's state-issued identification, and provided the defendant with a gift card for the value of the vacuum cleaner. The video surveillance system in the store recorded the defendant's actions.
Approximately one week later, an asset protection manager at the store viewed the surveillance video looking for any suspicious activity related to non-receipt returns. By "backtracking" through images from various surveillance cameras located throughout the store, the manager traced the defendant's movements from when he entered the store until he completed the exchange. After viewing the images, the manager downloaded a copy of the surveillance video onto her computer and transferred it to a compact disc (CD). She provided the CD to the police, together with the paperwork regarding the return.
After the surveillance video was introduced and the defendant was convicted, he appealed, claiming, inter alia, that the video was not properly authenticated.
In addressing the issue of first impression, the Supreme Court of New Hampshire adopted the flexible, less formulaic approach, concluding
that it is not "wise to establish specific foundational requirements for the admissibility of photographic [or video] evidence under the 'silent witness' theory, since the context in which the...evidence was obtained and its intended use at trial will be different in virtually every case."..."It is enough to say, that adequate foundational facts must be presented to the trial court, so that the trial court can determine that the trier of fact can reasonably infer that the subject matter is what its proponent claims."...This allows the trial court "to consider the unique facts and circumstances in each case and the purpose for which the evidence is being offered in deciding whether the evidence has been properly authenticated."
Then, applying this standard, the court found that
the State authenticated the video through the testimony of the asset protection manager regarding the surveillance system and how she linked the store records to the defendant's transaction and to the cameras recording the defendant's movements. See id. at 89–90. The manager testified at length about the location and number of cameras in the store, their maintenance and operation, and the storage system for video files. She testified regarding her observations as she viewed the videos, including the date and time displayed on the video, and she demonstrated on the computer in the courtroom her process for viewing the video files. She testified that she downloaded the video files to her computer, copied the files to a CD, and provided that CD to the police department. Further, she verified that the CD offered into evidence was the same one given to the police department because she recognized her handwriting on it. She also confirmed that the video played for the court was the same video that she had copied onto the CD....
Viewed as a whole, the manager's testimony was sufficient for the trial court to "fairly conclude" that the matter in question was what the State claimed it to be.