Destroyed Surveillance Footage, Court Approves

By: 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.

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?

Comments (20) : Members only. Login. or Join.

Related Reports

Austria’s First GDPR Fine Is For Video Surveillance on Jan 29, 2019
Should EU businesses be concerned if police see a business' surveillance cameras filming public areas? This is what happened with Austria’s first...
US City Sued For Hiding Surveillance Camera Map on Mar 08, 2019
UPDATE: The judgment is now in and updated information is at the bottom of the post. Should maps of public surveillance camera locations be kept...
UK Camera Commissioner Calls for Regulating Facial Recognition on Apr 15, 2019
IPVM interviewed Tony Porter, the UK’s surveillance camera commissioner after he recently called for regulations on facial recognition in the...
San Francisco Face Recognition Ban And Surveillance Regulation Details Examined on May 14, 2019
San Francisco passed the legislation 8-1 today. While the face recognition 'ban' has already received significant attention over the past few...
Kidnapping Victim Rescued With Video From Ring Doorbell Camera on May 24, 2019
A kidnapping victim was rescued within 24 hours, with the police crediting video from a Ring Doorbell camera as key to solving the case. A girl was...
First Video Surveillance GDPR Fine In France on Jul 08, 2019
The French government has imposed a sizeable fine on a small business for violating the GDPR after it constantly filmed employees without informing...
New GDPR Guidelines for Video Surveillance Examined on Jul 18, 2019
The highest-level EU data protection authority has issued a new series of provisional video surveillance guidelines. While GDPR has been in...
UK Facewatch GDPR Compliance Questioned on Aug 27, 2019
Even as the GDPR strictly regulates biometrics, a UK company called Facewatch is selling anti-shoplifter facial recognition systems to hundreds of...
First GDPR Facial Recognition Fine For Sweden School on Aug 22, 2019
A school in Sweden has been fined $20,000 for using facial recognition to keep attendance in what is Sweden's first GDPR fine. Notably, the fine is...
France Declares School Facial Recognition Illegal Due to GDPR on Oct 31, 2019
France is the latest European country to effectively prohibit facial recognition as a school access control solution, even with the consent of...

Most Recent Industry Reports

Every VMS Will Become a VSaaS on Feb 21, 2020
VMS is ending. Soon every VMS will be a VSaaS. Competitive dynamics will be redrawn. What does this mean? VMS Historically...
Video Surveillance 101 Course - Last Chance on Feb 20, 2020
This is the last chance to join IPVM's first Video Surveillance 101 course, designed to help those new to the industry to quickly understand the...
Vulnerability Directory For Access Credentials on Feb 20, 2020
Knowing which access credentials are insecure can be difficult to see, especially because most look and feel the same. Even insecure 125 kHz...
AI/Smart Camera Tutorial on Feb 20, 2020
Cameras with video analytics, sometimes called 'Smart' camera or 'AI' cameras, etc. are one of the most promising growth areas of video...
China Manufacturer Suffers Coronavirus Scare on Feb 20, 2020
Uniview suffered a significant health scare last week after one of its employees reported a fever and initially tested positive for coronavirus....
Cheap Camera Problems at Night on Feb 19, 2020
Cheap cameras generally have problems at night, despite the common perception that integrated IR makes cameras mostly the same, according to new...
Milestone Launches Multiple Cloud Solutions on Feb 18, 2020
Milestone is going to the cloud, becoming one of the last prominent VMSes to do so. Milestone is clearly late but how competitive do these new...
Video Surveillance Architecture 101 on Feb 18, 2020
Video surveillance can be designed and deployed in a number of ways. This 101 examines the most common options and architectures used in...
UK Stands Behind Hikvision But Controversy Continues on Feb 18, 2020
Hikvision is exhibiting at a UK government conference for law enforcement, provoking controversy from the press, politicians, and activists due to...
IronYun AI Analytics Tested on Feb 17, 2020
Taiwan startup IronYun has raised tens of millions for its "mission to be the leading Artificial Intelligence, big data video software as a service...