Prosecution improperly authenticated Belk security footage and Court of Appeals mitigated the charge.

A recent North Carolina Court of Appeals case articulated a rule for authenticity that will make it difficult for prosecutors to authenticate video evidence in North Carolina trials. Authentication requires the person to lay an initial foundation that the video is actually what the proponent claims it is. I always think back to when we traded Michael Jordan rookie cards when we made sure the golden seal attached was one the card company actually created. At trials, there are specific hoops proponents must jump through to likewise show the video is actually an authentic depiction of the events in dispute.

That is not always a sure thing. In State v. Snead, video footage revealed defendant committing larceny. A regional loss prevention manager testified that he viewed the video after the theft took place, that the video recording system met industry standards, and that it watermarked the recording to prove the time and date of the incident. The trial court admitted the video and the jury viewed its contents. The problem? That foundation could not legally support admissibility of the evidence because we couldn't be sure it was what the proponent claimed it was.

Why? There was no chain of custody. North Carolina requires the proponent to lay a proper foundation for admissibility. This means the proponent must offer 1) testimony that the recording fairly and accurately depicts the events filmed; 2) testimony that describes how the recording transferred through the chain of custody for use in trial; 3) testimony that the photographs of the recording are the same as those the witness viewed after the theft; or 4) testimony that the videotape had not been edited, and that the picture fairly and accurately recorded the actual appearance of the area photographed.

The foundation in dispute did not sufficiently explain what happened to the video recording after its recording and when the witness viewed it. The witness was not on location when the theft occurred, so it remains possible without a proper explanation of the chain of custody that Belk manipulated the contents of the photo before the regional loss manager viewed its contents. The prosecutor's foundation did not adequately account for that time gap and thus the Court of Appeals properly applied the law to those facts and ruled that the evidence could not withstand that weak foundation for admissibility at trial.

In the end, the Court of Appeals concluded that defendant still admitted to the crime during the investigation and therefore did not completely overturn the conviction; however, because the admission did not include the amount of theft, the lack of video evidence avoided a conviction as to an aggravating factor that made it previous to the appeal a felony conviction. Now the defendant is only convicted of a misdemeanor. 

The takeaway: There's a high danger with video recordings because they are easy to manipulate at the same time as very conclusive. A proper foundation is absolutely necessary to admit video recordings at trial due to that possibility.