In order to make sound, informed decisions about the content of videos tendered as evidence, it is preferable to have the original recording, or a copy that has been verified to be accurate, available for viewing and examination. Ordinarily, this is achieved by exporting the video files from the camera, DVR, server, computer or other storage device in a forensically sound manner. On occasion, the only evidence of the original video may be video or photographs taken of the monitor that displayed the original video. This situation can arise for a number of reasons:
- Not having the required hardware to export the video from the storage device.
- Not having the requisite skills to properly export the video from the storage device.
- A device so old that it does not have an output function.
- Time constraints which necessitate recording the monitor before the video is overwritten.
- Not being permitted access to the storage device to export the video.
Recording the monitor is not the preferred method of capturing video evidence, though it is certainly preferable to losing the images altogether, in which case the only evidence available would be the hearsay evidence of a witness describing what was viewed on the monitor. This would typically garner an inadmissibility ruling as exemplified in Commonwealth of Massachusetts v. Connolly, (2017) 91 Mass.App.Ct. 580 (Appeals Court of Massachusetts). Monitor recordings severely limit the ability of a forensic video analyst to examine the images due to the inaccessibility of the original metadata, resulting in the loss of potentially valuable evidence.
Case Law
There is case law in the United States and Canada on this point and this updated article includes recent case law. In United States v. Hicks, 27 Fed. Appx. 577; 2001 U.S. App. LEXIS 27085 (6th Cir. 2001), the defendants were charged with bank robbery. Part of the evidence against them consisted of stills that were obtained from the bank’s CCTV system. These stills were created by photographing the CCTV monitor and by digitizing images obtained from the original analog video. The defendants appealed their convictions and argued that the stills should not have been admitted at trial as they were not the best evidence and had not been properly authenticated.
The Court of Appeal ruled that under Federal Rule of Evidence 901, photographs are admissible provided their content is authenticated and that pursuant to Rule 1001(2) “photographs” include videotapes. The Court held that the stills were admissible as “duplicates” as they had been sufficiently authenticated. Accordingly, the challenge based on Rule 901 failed.
A Canadian example is R. v. JSC, 2013 ABCA 157 (Alberta Court of Appeal), wherein the trial judge admitted photographs taken of a video monitor and police testimonial evidence of what was seen on the monitor even though the actual video itself was not entered into evidence. Defense counsel unsuccessfully argued that admission of such evidence violated the best evidence rule, asserting that the video itself should have been entered into evidence.
On appeal, regarding the testimonial evidence of the officers who viewed the video, the Court of Appeal stated:
16 In our view the best evidence rule does not preclude the admission of viva voce evidence of persons who observed the video (see R. v. Pham, 1999 BCCA 571 (B.C. C.A.) at paras 18-25, (1999), 139 C.C.C. (3d) 539 (B.C. C.A.)). However, the evidence may vary greatly in its weight and reliability. In this case, the trial judge was entitled to admit the evidence of the police officers who testified about what they observed in the video, and to give it the appropriate weight. It was only one item among several pieces of evidence which the trial judge found to be confirmatory of the identification evidence.
The Court ruled that monitor photographs are admissible if they accurately represent the facts, are not tendered with the intention to mislead, and are verified under oath by a person capable of doing so. The officer’s evidence was sufficient proof in this regard.
More recently, in State v. Brown, 463 N.J.Super. 33; 229 A.3d 216 (Superior Court of New Jersey, Appellate Division, 2020), the state relied upon cell phone video of a CCTV monitor of a bus stop camera to prove arson at a nearby parking lot. A civilian witness confirmed that it was her in the video and that the video accurately portrayed the explosion she observed while at the bus stop. The police were unable to export the video from the CCTV system due to its age and recorded what was shown on the monitor with a cell phone in order to preserve the evidence. At trial, the defendant argued that the cell phone video should be excluded for lack of authenticity. The trial judge admitted the video on the basis that there was a valid reason for the absence of the original video and the civilian witness authenticated its content. The defendant appealed his conviction and this ruling. The Appellate Division noted that under NJRE 901 authentication does not require absolute certainty or conclusive proof. A prima facie showing of authenticity suffices with the final decision to be made by the jury. Any person with requisite knowledge of the facts depicted in the images is capable of authenticating them and the trial judge did not err in finding that the civilian witness had sufficiently authenticated the cell phone video.
Analysis
In an ideal world counsel would be able to present original video evidence in court but practically that may not be feasible. Video of a monitor limits the ability of a forensic video analyst to examine the original media. However, when that is the only evidence available, counsel must look for ways to authenticate the media. Providing evidence is presented on why the original video could not be obtained, how the monitor images were recorded, and the accuracy of the images in portraying the event depicted, admissibility should be achieved. As a prosecutor, it was always my preference to have as much evidence as possible and then figure out how to best utilize it. In this sense, monitor video is better than no video at all.