Surviving Surveillance Video Evidence: Pre-Trial Considerations in Criminal Defense Cases

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January 5, 2016

psgThere are few types of evidence in criminal cases that are more damaging than surveillance video.  Such evidence, if admitted at trial, will almost certainly create a theme for prosecutors to argue in front of a jury that “seeing is believing.”  Yet even when the video evidence is properly admitted at trial, improper witness testimony concerning the contents of surveillance video can lead to errors that have a devastating effect in front of a jury.  Moreover, the combination of the prosecution’s use of video surveillance evidence, coupled with improper testimony by witnesses identifying the suspect on the video as the defendant, can result in wrongful convictions that are ultimately reversible on appeal.[1]

In Florida, only eyewitnesses to a crime, people with a certain level of familiarity with the defendant, or experts in video identification may testify whether the person shown in the video is the defendant.[2]  Absent testimony from witnesses that fall into one of these three categories, deciding whether or not the defendant is the person shown in the surveillance video is the task of the jury alone.[3]  Otherwise, there exists a very real danger that the testimony allowed improperly interferes with the jury’s duty to weigh the evidence.  Typically, this occurs when a police officer, who does not fit into one of the three categories, is allowed to testify that the defendant is the person shown in the video.[4]  If the officer does not fit into one of the three categories of witnesses mentioned above, his or her testimony is impermissible lay opinion testimony and intrudes on the jury’s fact finding duties.  The danger in this situation is that the lay opinion testimony is coming from a law enforcement officer, whose testimony may be given greater weight by the jury for no other reason than because the witness is a police officer.

While courts have held that convictions based on improper testimony concerning surveillance video as described above are grounds for reversal[5], the better practice is to try and prevent the testimony from ever being presented at trial.  Pre-trial motions aimed at excluding the type of testimony discussed above should be considered in the early stages of the case.  Certainly this works to protect the defendant’s right to a fair trial, if granted.  If, however, a pre-trial motion to exclude this type of testimony is denied by the trial court, then it will create a record for an appellate court’s review in addition to the trial transcript and could form the basis for a reversal of the conviction.  As such, pre-trial strategy and motion practice considerations are of critical importance when dealing with surveillance video evidence.

If you have further questions regarding surveillance video as evidence or any other type of evidence in a potential case, you should consult an attorney.  An attorney will be able to advise you of your rights and assist in a rehearing if eligible.

[1] See Proctor v. State, 97 So.3d 313 (Fla. 5th DCA 2012).

[2] Charles v. State, 79 So.3d 233, 235 (Fla. 4th DCA 2012).

[3] Proctor, Id. at 315 (citing Charles v. State, 79 So.3d 233 (Fla. 4th DCA 2012) (holding the detective’s testimony that Charles was the suspect in the video “invaded the province of the jury.”)).

[4] Proctor, Id.  See also Charles v. State, 79 So.3d 233 (Fla. 4th DCA 2012).

[5] See Alvarez v. State, 147 So.3d 537 (Fla. 5th DCA 2014) and Razz v. State, 155 So.3d 447 (Fla. 4th DCA 2015); compare Wade v. State, 156 So.3d 1004, 1023 (Fla. 2014)(finding the officer’s alleged improper testimony as to surveillance evidence did not “undermine confidence in Wade’s convictions or sentences.”).

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