Surveillance Tapes Not Admissible in this Criminal Case

March 14, 2013

    Video tapes would have to be properly authenticated to be admitted into evidence in court.  In criiminal cases the standards may be more stringent.  In the case reviewed below [I've used exerpts from the decision] a defendant was video taped tresspassing.  The accusing witness however did not observe the tresspass and the tape was not properly authenticated.  Charges were dismissed.  

Be carefull representing to your subscribers that tapes will be admissible, because sometimes they are not.  Thanks to Alan Cooper of American Communications for sending me this case.

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Surveillance tapes not admissible in this criminal case

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    The defendant is charged with one count of Criminal Trespass in the Second Degree and one count of Trespass.  The defendant has moved for an order dismissing the information as facially insufficient.

    Facts:  On November 8, 2011, the defendant was arraigned on a misdemeanor complaint, charging her with Trespass.   On November 3, 2011, at approximately 3:30 pm, at Grove Street, Kings County, New York, "Deponent is informed by that, at the above time and place, defendant is observed on video surveillance knocking on the informant's bedroom door, is then observed entering said bedroom and rubbing an unknown substance onto the informant's bed, baby's crib, towel and other items,and defendant is then observed exiting the bedroom and then returning again to continue.

In seeking dismissal of the accusatory instrument, defense counsel alleges that the statements regarding the complaining witness' observations from surveillance footage are hearsay and therefore can not form the basis of an accusatory instrument.

    Defense counsel further argues that the surveillance footage has not been authenticated and thus may not be referenced as a factual source in the criminal court complaint.

    In opposition, the People argue that the subsequent viewing of a crime on a surveillance videotape by the complaining witness is not hearsay and thus the allegations asserted by the People satisfy the Law, making the accusatory instrument facially sufficient.

    To be facially sufficient, an accusatory instrument must (1) allege non-hearsay facts that would give the court reasonable cause to believe that a defendant committed the offense(s) charged and (2) establish, if true, every element of any such offense charged and the defendant's commission thereof.

In this case, the defendant alleges that the accusatory instrument is not based upon the complaining witness's personal knowledge, but is instead based solely upon her review of an unauthenticated surveillance video.

    Here, the accusatory instrument and supporting deposition do not allege that the video truly and accurately represented the defendant's actions on November 3, 2011, that the video was not altered in any way and that a proper chain of custody was established. There was no affidavit from anyone establishing as such. The allegations in the accusatory instrument are based upon a non-authenticated video obtained from an unknown source. Thus, no evidentiary foundation was established for the video viewed by the complaining witness. People v. Allison, supra. There are no facts of an evidentiary character as to who personally placed and tested the surveillance camera and the chain of custody of the video. Such descriptions would have provided reasonable assurances "that the camera recorded reliably and that the videotape accurately depicted the events that it purported to depict;' providing a proper foundation for the admission of the video recording into evidence."  

    Because it has not been authenticated, the instant video recording consists of inadmissible hearsay.

    In People v. Allison, the court dismissed the information, which was based on a supporting deposition from a store employee who did not personally or contemporaneously observe the defendant's alleged actions, but instead merely reviewed a surveillance video after the fact. The court found that the employee's statements did not constitute "facts of an evidentiary character." Allison at 3.  As these facts are analogous to the facts of the instant case, People v. Allison does not support the People's argument.

    People v. Patten is distinguishable from the instant matter. In Patten, the information was subscribed by a deponent police officer who reviewed a video of a public fight. Attached to the information were supporting depositions from two other police officers who had personally observed the fight, as well as later reviewed the video. In those depositions, the police officers with first-hand knowledge of the fight attested that the fight depicted on the videotape was a fair and accurate representation of their observations in person, providing an adequate foundation for the video's admission. Here, the complaining witness did not observe the defendant's alleged conduct while it transpired, either in person or through video monitoring.

    In People v. Lambert, the information alleges that the deponent police officer personally observed defendants in possession of a video camera and bleeding and wounded pit bull dogs.  The deponent reviewed the defendant's videotape, which showed the pit bull dogs fighting. The defendants were also heard on the tape urging the dogs to fight each other. The court found that the deponent officer's "observations of the bleeding dogs, and his actual review, on the spot, of the videotape showing the recently concluded dog fight, were firsthand observations which fully supported the charges." As in People v. Patten, the deponent officer was able to attest in his supporting deposition that the dog fight depicted on the videotape was a fair and accurate representation of his personal observations of the dog's wounds.

    Accordingly, the People's argument is not persuasive. In the absence of proper authentication of the video recording, the complainant's observations dismissal of the accusatory instrument.

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