Destroyed Surveillance Footage, Court Approves

Author: IPVM Team, Published on Jan 02, 2014

All is not always lost if surveillance footage from a crime is unavailable for the trial. If enough people have seen the video before it goes missing then their testimony is admissible in lieu of having the actual tape in court ... at least that is what an appellate judge affirmed this week in Washington State. In this note, we examine the case and whether or not it should have been thrown out.


Two men were charge and convicted of a 2009 burglary of a Toys R Us store. The state’s case against the two men centered around at surveillance video that purported to show the men committing the crime.

An employee was suspicious of one man when he came into the store on Nov 1, 2009 and told two other employees to keep an eye on him. The two were known for retail theft schemes. He watched him pace around in the electronics section then meet up with the other man who was pushing a cart with a box in it toward the exit. A second employee called for them to stop as they walked past the registers, but they continued past the cashiers and outside to a waiting Jaguar. The employee says he called 911 as they loaded the box into the trunk. The box was so heavy it took two of them to lift, and he saw the car’s suspension shift. The store says the box contained $5,800 worth of Nintendo DS systems.

The responding officer saw the car on his way to the store and pulled them over and detained them seven minutes after the initial 911 call. Another officer brought an employee to the scene to identify them, which he did. The Jaguar was impounded, and police got a warrant to search it. They found the box that was in the surveillance video, but it was empty.

What The Footage May Have Showed

Back at the store, the employee who first noticed the men was reviewing surveillance footage. He says several cameras showed that one man open a locked storeroom door, fill up and empty box with Nintendo video game systems, and set the box outside the door. Ballou came back with a cart, and they loaded the box and pushed it to the exit.

The Tape Disappears

When they Lynwood Police Department asked for a copy of the tape, a Toys R Us employee tried to make a copy, but “the machine did not work properly” and “the disk drive on the video recorder was stuck closed, so he could not burn a copy to disk.” A police officer reviewed the video. A week later an integrator came to look at the recorder and said the whole thing needed to be replaced, so they replaced the system, disposing of the video.

The store employee never offered for police to take the whole recorder and police never asked for it or got a court order to take it, the appeal says. There was no additional evidence like fingerprints or pry marks on the door.

After learning the video had ultimately been destroyed when the system was replaced, one filed a motion to dismiss the trial suggesting he was being denied due process. The motion was not granted. A judge said: “The fact that the video is not available the Court determines is a matter of weight, not admissibility, and the court will allow it.”

The Trial

The trial relied on recaps of the video from the responding officer and three employees who watched the video. One employee said he watched the video more than 30 times.

The defendants argued that a jury should have been able to watch the video to make a decision for themselves what it showed. For all anyone knows, they could have just stolen an empty box, which was going to get thrown in the trash anyway, the defense said. They also argued that the only thing he is guilty of based on actual evidence is accessing a locked storeroom.

A jury convicted him anyway, and he was sentenced to 51 months in prison. He appealed the case.

The Appeal

In December 2012, one man filed an appeal arguing that there was not enough evidence to convict him of anything other than unlawfully entering the store’s stockroom. The appeal further says the court was wrong to let witnesses testify they had seen him in the store security video.

“The trial court erred in failing to exclude the witnesses’ testimony about what they say on a videotape that had been destroyed well before trial and have never been available for the defendant or his counsel to review,” the appeal reads. It says there is no evidence he entered the room with the intent to commit a crime.

It also argues this violated the defendants’ right to due process saying “Fundamental fairness requires that the government preserve and disclose to the defense favorable evidence that is material to guilt or punishment ... In this case, the State allowed the loss or destruction of the only evidence that Pegs had committed a burglary.”

The appeal was denied. An appellate judge ruled that the 14th Amendment was not violated because the state was not responsible for the destruction of the video and the destruction was no “improperly motivated.”

The appellate judge further said that because the tape was destroyed, and it wasn’t the state’s fault, that the testimony, describing the contents of the tape, was admissible.

Additionally, “Those two men were the only African American customers in the store at that time and were wearing the same clothes that [employees saw them] wearing while they were in the store, when leaving the store, and at the show-up,” the ruling says.

Should this Case Have Been Thrown Out?

This case relied obviously relied heavily on evidence that was not there: surveillance video. There was no physical evidence and the Nintendos were never recovered. Should this case have been thrown out?

Comments (20)

IMO, the video evidence now becomes eyewitness evidence, bearing less weight but still admissible in court.


But does it fit the definition of "eyewitness." Eyewitness evidence usually applies to something that a person witnessed themselves. Does a person who watches a video of a crime on YouTube become a witness with court-admissable testimony?

What about testimony from a guard who was watching a live feed during a crime where the recording could not be produced?

You would think that testimony would be admissible.

I think that testimony would be less questionable because the guard was actually watching something as it happened so technically an eyewitness. The guard isn't just watching footage after the fact.

Man, I want to use a Jaguar as a getaway vehicle for my shoplifting schemes.

For better understanding: FBI training movie "Caught on camera".

Arie, you mean this video?

If so, I think the advice is super high level and misleading in many instances. We did an analysis of the FBI video here.

THe appellate court ruling was consistent with rules of evidence and past precedent. There is nothing that says if you don't have an original item that you then cannot testify as to it's condition, revelations or actions observed relative to it. Sure, it's now substantially harder to obtain a conviction after opposing counsel mounts a vigorous challenge but in this case multiple witnesses viewed the video and can testify to what they observed in that video and the corroborating details of what the suspects were wearing upon apprehension, the vehicle, the box, etc.

It does point out the importance of training for security staffs. Any experienced manager would have made sure the HD was preserved when the old unit was replaced as it might have had several incidents on it. Basics....basics...basics.

Jack, would you feel that making sure the HD was preserved should have been the managers duty, or the integrators?

When I am replacing a recording unit, I specifically tell the client that the data will be lost and to back up anyything they potentially are going to need. That being said, I do keep the recorders for a few weeks before destroying the hard drive just in case, but I think it should be the clients job to make sure they have what they need.

Do you think I am in the wrong?

That part aside, "the machine did not work properly” and “the disk drive on the video recorder was stuck closed". Sounds like a load of crap to me. By "disk drive", Im going to make the assumption they are referring to a CD recording drive. Granted I have not been in the industry as long as most of you here, but even the oldest recorders with a CD recorder are capable of being networked, or even have USB ports to back up to a flash drive. So many options, the footage could have been pulled off if they really wanted it, but sounds like it was just sort of shrugged off to me.

What I don't understand is that if this is the case, why can anyone even challenge the legitimacy or surveillance video anyway? i.e., the video was altered, the video was missing critical moments, etc.

If this sets precedent, shouldn't cops just watch video and then have it destroyed so no one can challenge them?

John, you're right to have that as a concern but consider for a moment a "dying declaration" by a suspect moments before expiring that "I saw my partner shoot that clerk, and I feel so bad that I didn't stop him". You can't effectively prevent testimony by the detective about that dying declaration and challenge in court the guy who died after making the statement. It's not first person testimony from the suspect about what he claimed he saw, but the court does take notice that dying people are less inclined to lie and the detective's testimony is admissable.

Sure police officers can collectively agree to lie in court but that's hard to orchestrate for a minor crime. Regardless of the We're Gonna Frame O.J., Spread The Word suspicions in some quarters, testimony from various observers of a common act or fact is generally rather reliable. The judge(s) then has the duty to sort it out. That's got to be the hard part!

Jack, thanks. My main concern is how much strength or weight one puts into certain types of evidence. So let's say we admit testimony describing destroyed video surveillance, it seems reasonable that it would carry less weight than surveillance that could be analyzed, viewed and challenged in court. To me, it's the same as a deathbed confession vs having a witness testify in court.

Dying declarations are an exception to the hearsay rule and there are strict requirements for when this exception can be used.

Under the Federal Rules of Evidence, a dying declaration is admissible if the proponent of the statement can establish:

  1. Unavailability of the declarant
  2. The declarant’s statement is being offered in a criminal prosecution for homicide, or in a civil action;
  3. The declarant’s statement was made while under the belief that his death was imminent; and
  4. The declarant’s statement must relate to the cause or circumstances of what he believed to be his impending death.

Your 'my partner shot the clerk' scenario is not an instance where a dying declaration can be used - unless it was the clerk making the declaration on his death bed - not the partner who witnessed the shooting.

The example used in the dying declaration link above is:

"Furthermore, the statement must relate to the circumstances or the cause of the declarant's own death. A counterexample is the dying declaration of Clifton Chambers in 1988, in which Chambers confessed that ten years earlier, he had helped his son bury a man named Russell Bean, whom the son had killed by accident. The statement was sufficient cause to justify a warrant for a search on the son's property; Bean's body was indeed found, but there was no physical evidence of a crime after ten years, and since Chambers was not the victim, his dying declaration was not admissible as evidence, and the son was never brought to trial."


I'm not a lawyer and I did not stay at a Holiday Inn Express last night, but I tend to agree with Undisclosed#0021312's very first post on this thread (with one caviat):

Without the video evidence that was later destroyed, accounts from people who viewed the action LIVE (whether on the floor or on screen back in the office) before it was destroyed should be treated as eyewitness testimony - with the appropriate weighting for eyewitness accounts. (i.e. "I saw this happen - when it happened.")

However, I think that testimony from people who reviewed the now destroyed video should be excluded as hearsay and not allowed. (i.e. "I saw a video showing this happen after the fact, but the video no longer exists.")

Marty, so in the same way that testimony that somebody who said they read a suicide note confession, would not be allowed if the actual note could not be found?

However, I think that testimony from people who reviewed the now destroyed video should be excluded as hearsay and not allowed. (i.e. "I saw a video showing this happen after the fact, but the video no longer exists.")

Which is exactly what I expected to be the outcome of this case, but it wasn't. What's interesting is that in contrast, in DC when they are putting together drug cases if they lose the footage, they don't have a case, regardless of how many people saw it, says a narcotics officer here. He said in DC it's too risky to try a case on footage that doesn't exist anymore.

Well, I am assuming that someone else is being tried for the murder of this person whom your witness says penned a suicide note that he/she read, then 'lost'?

If testimony like this were allowed, imagine how filled with glee any prosecutor would be at the idea of cross examining someone who purports to have read a suicide note from the deceasedmurdered, but now this 'suicide note' doesn't exist.

I'm not a lawyer, but your scenerio appears to me to be straight-up hearsay - it is a defacto statement: 'this guy told me 'X'".


I have been doing this as an end user for years in the corporate world. The statement that the drive door was stuck this is the CD/DVD drive or burner. Not the hard drive. As previously stated even 10 -12 year old DVR's had a network feature. Clearly the Toys R us folks did not know what they were doing. To allow the unit to be removed from the site knowing it had evidence on it.

As to the integrator who stated who's responsibility is it to secure the evidence? He stated that when he replaces a unit he keeps the unit for a few days or weeks than discards it. Here at my Corporation, every unit that is replaced or hard drive that fails we have instructions for our integrator, to return all hard drives to us. We will maintain the hard drives for 90 days in the event there may be evidence still recoverable on the drive before we shred the drive. We do not leave this up to the integrator. It is not his evidence it is ours.

As to the integrator who stated who's responsibility is it to secure the evidence? He stated that when he replaces a unit he keeps the unit for a few days or weeks than discards it. Here at my Corporation, every unit that is replaced or hard drive that fails we have instructions for our integrator, to return all hard drives to us. We will maintain the hard drives for 90 days in the event there may be evidence still recoverable on the drive before we shred the drive. We do not leave this up to the integrator. It is not his evidence it is ours.

Thats the way I think it SHOULD be, however in most cases I find as an integrator, the end users wouldnt have a clue on what to do with the hard drive if I gave it back to them. I realize Im getting a little off topic, but where is the common ground? Should it be my job as an integrator to ensure that the drive makes it into their hands afterward, or should it be the end users responsibility to ensure they get the drive back after swapping recorders. To date, Ive never had an issue with my method, but I guess I'm curious to hear from other integrators/end users on what their policies are on this subject.

In this particular case, if I was the integrator and I knew there was specific footage that they needed, I would have done what needed to be done to ensure they get it (probably network the recorder would have been the easiest solution). But as I stated before, between the integrator, the police, and the end user in this particular case, it seems nobody really gave a crap.

We have probably covered a lot more ground in this discussion than the original topic might otherwise engender but the custody/retention of customers' HD's after a DVR or NVR failure is an important discussion. As an integrator servicing a client's equipment, the HD itself is just hardware but the video on it is data. That data belongs to the client thus it seems prudent to have a rule in place to consistently return the data/HD to the clent. At least that avoids potential entanglements, doesn't it?

Interesting case... In the UK we have a judicial term called 'breach of process'. If evidence is destroyed before it is secured then a question is asked as to what actions took place in order to secure it. If it could have been secured, but it wasn't, then a breach of process can be alledged. If a judge rules that all appropriate actions did take place and the destruction was down to an unforeseen event then the case may be allowed to continue.

More here:

A good example would be....

Officer visits store and watches the video. They must make contemparaneous notes at the time and document what the video shows. Due to the store owner not knowing how to export the video, the officer documents that the owner states it has a 7 day overwrite. A request is made for Forensic Video Recovery. We attend within 48hrs and the footage has already overwriiten. It was not 7 days, it was 17hrs! Breach of process? No

What would happen though if it was 7 days, and we received the request on day 1, but did not attend until day 8, after it had overwritten. Breach of process......Maybe! Thats for a judge to decide!

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