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Last week I participated in a CLE event sponsored by the Eastern Band of Cherokee Indians Tribal Court. It was a great event and an opportunity for me to learn […]
Special thanks to Sloan Godbey, Summer Law Fellow at UNC SOG, for their significant contributions to this post.
In March of last year, I did a thorough review of North Carolina cases addressing the authentication of surveillance video. I created a chart to understand what ingredients are adequate (and inadequate) to lay a foundation. That chart can be found here, and the related blog here.
However, a case came down in March of this year that raises significant questions about how video is authenticated, or at least introduces a new potential avenue for authenticating video. I’m afraid my cherished chart may soon be of limited utility. But such is the way the law develops!
A common evidence question that arises is how to properly authenticate digital communications. We have written on the topic in several blogs: How Can a Party Show Authorship of a Social Media Post or Other Electronic Communication?, Authenticating Photographs Obtained from Social Media Platforms, Business Records: Posts, Chats, and Texts, New Guidance on Authenticating Social Media, Admissibility of Electronic Writings: Emails, Text Messages, and Social Networking Posts, and more.
Last year, I created a chart to highlight the ingredients of authentication our appellate courts found to be adequate or inadequate as a foundation for surveillance video (also see the accompanying blog, Surveillance Video- When It Comes In and When It Doesn’t). I’ve received positive feedback on the chart and practitioners have asked for more evidence content in this format. For a second installment, I chose digital communications.
Video evidence authentication has received a fair amount of treatment on this blog. The topic remains an area of practical significance given the prevalence of video evidence in criminal trials and how common it is for the prosecution’s case to hinge on the admission of video. We are increasingly a video-focused society. Between home security cam, doorbell cam, body-worn cam, in-car cam, pole cam, and even parking lot cam, juries increasingly expect to see video, whether the incident in question occurred outside a home, near a business, or on the roadside.
In this post, I will focus on surveillance video.
In my last post, I wrote about how a party might authenticate a Facebook direct message or other text-based electronic communication. That post focused on how the proponent of the evidence might establish who wrote the message, i.e., authorship. But what if a party wants to introduce a photograph that was posted on a social media platform? The concept of authorship doesn’t really apply, and in the age of Photoshop and AI-generated images, courts may have serious concerns about the accuracy of online images.
Suppose that a defendant is charged with possessing fentanyl with the intent to sell it. The state’s evidence includes a Facebook direct message, purportedly from the defendant to an informant, saying “just got some China Girl, you want any?” An officer took a photograph of the direct message as it appeared on the informant’s smartphone, and everyone is satisfied that the photograph fairly and accurately depicts the message. But the defendant objects to the introduction of the message on the grounds that there’s no way to be sure that he wrote it. How might the state respond?
Nearly half of the 7.7 billion people in the world are on social media, and each of those users has an average of 8 different accounts. The rate is even higher in the U.S., with around 70% of the population active on social media for an average of 2 hours every day. You can find more jaw-dropping statistics here.
Given these trends, it’s no surprise that social media evidence is showing up more frequently in criminal cases. A quick search for criminal cases mentioning the most common social media platforms brought up well over 100 North Carolina cases decided in the last decade, but only a few of those cases have directly analyzed the authentication requirements for this type of evidence. The Court of Appeals recent decision in State v. Clemons, __ N.C. App. __ (Dec. 1, 2020) provides some additional guidance in this important area.
My colleagues and predecessors here at the School of Government have written about video evidence many times over the years, summarizing the basic rules and significant cases in posts available here, here, here, here, and here.
Recently, though, I’ve been getting questions about a relatively new but increasingly common type of video evidence: high-tech, app-controlled, and remotely stored videos taken by automated devices ranging from doorbell cameras to wifi-enabled, cloud-connected, teddy bear spy cams. Do the old rules still work the same way for these new video tools? Is it substantive or illustrative evidence? If it’s substantive, how is it authenticated? Is a lay witness qualified to testify about how these cameras work? Does the proponent need the original video? Come to think of it, what is the “original” of a video that exists only as bits of data floating somewhere in the cloud…?
After Roshawn Thompson picked up his cousin Kendall Rascoe from the Greenville mall in November 2014, Thompson and a friend, Andre Grey, robbed Rascoe at gunpoint. At Thompson’s armed robbery trial, his defense attorney sought to cross examine Rascoe about Facebook messages he sent to Thompson earlier in the day asking whether Thompson could get some marijuana for him while he was in Greenville. Rascoe denied sending the message and testified that he just happened to run into Thompson at the mall. The State objected to the admission of the screenshot of the messages.
Later in the trial, the State sought to introduce a screenshot of a picture of Thompson and Grey copied from Thompson’s Facebook page. Rascoe showed the investigating detective the picture for purposes of identifying Thompson and Grey. Thompson objected to the admission of the screenshot, in which both of his middle fingers were extended.
How did the trial court rule? Did it make the right call?
Technologists tell us that we are in the age of ubiquitous video. It seems that almost everything is being recorded. Naturally, this means that more and more video recordings are being introduced in court. A recent decision by the court of appeals is a helpful reminder of the two primary methods of authenticating video.