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.
Background
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?
Login to read this IPVM report.
Why do I need to log in?
IPVM conducts reporting, tutorials and software funded by subscriber's payments enabling us to offer the most independent, accurate and in-depth information.
Comments (20)
Undisclosed Manufacturer #1
IMO, the video evidence now becomes eyewitness evidence, bearing less weight but still admissible in court.
Snowman
Create New Topic
Ari Erenthal
01/02/14 09:28pm
Man, I want to use a Jaguar as a getaway vehicle for my shoplifting schemes.
Create New Topic
Arie Segal
For better understanding: FBI training movie "Caught on camera".
Create New Topic
Jack Sink
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.
Create New Topic
John Honovich
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?
Create New Topic
Marty Major
01/04/14 05:06pm
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'".
Create New Topic
Undisclosed End User #3
All,
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.
Create New Topic
Jack Sink
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?
Create New Topic
David Spreadsys
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:
http://uk.practicallaw.com/books/9781845922344/chapter03
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!
Create New Topic