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 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.
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?