In re Jayshawn B.
975 N.Y.S.2d 863, 42 Misc. 3d 492 (2013)
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Rule of Law:
The Best Evidence Rule, which typically requires the production of an original writing or recording, does not apply to eyewitness testimony of events observed live through a video surveillance system, even if a recording of those events existed but was subsequently destroyed.
Facts:
- On August 23, 2013, American Apparel asset protection investigator Jude Bright was in the store's camera surveillance room watching a live video feed.
- Investigator Bright allegedly observed the respondent shoplift a watch through the live video feed.
- American Apparel's policy was to store surveillance videotapes in a central location in Los Angeles, California, and to destroy them after 39 days.
- On October 1, 2013, investigator Bright informed the presentment agency that the August 23, 2013 tape might have been destroyed.
- On October 15, 2013, investigator Bright notified the presentment agency that due to a miscommunication, the August 23, 2013 surveillance tape had, in fact, been destroyed.
- A representative from American Apparel explained that the tape was destroyed because the store believed the incident was being resolved through the Department of Probation and that court action would not be required.
Procedural Posture:
- On October 3, 2013, a petition was filed charging the respondent with petit larceny and criminal possession of stolen property.
- The respondent subsequently filed a motion to prevent investigator Bright from testifying about the alleged larceny, arguing that a video-surveillance tape of the incident had been destroyed, thus violating the best evidence rule and `Brady`/`Rosario` requirements.
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Issue:
Does the Best Evidence Rule preclude a witness from testifying about events they observed in real-time on a live video feed when a recording of that feed existed but was subsequently destroyed?
Opinions:
Majority - Mary E. Bednar, J.
No, the Best Evidence Rule does not preclude a witness from testifying about events they observed in real-time on a live video feed, even if a recording of that feed existed but was destroyed. The court clarified that the Best Evidence Rule applies when the contents of a recording are in dispute and sought to be proven, but it does not apply to testimony about personal observations made by a witness through a live video feed. The court likened observations made through a live video monitor to observations made through a telescope or binoculars, asserting that the use of an electronic or mechanical aid does not diminish a person's status as an eyewitness. The court found persuasive reasoning from foreign jurisdictions (Illinois, US Air Force Court of Military Review, Indiana, and Massachusetts) that consistently upheld the admissibility of such testimony. Furthermore, the court rejected the respondent's claims of `Brady` and `Rosario` violations, as law enforcement never had possession or control over the destroyed videotapes, and the tapes were not demonstrated to be exculpatory.
Analysis:
This decision is significant as it clarifies the application of the Best Evidence Rule in the context of modern surveillance technology, distinguishing between direct observations made via live feeds and the contents of a recorded medium. It establishes that a witness who observes events in real-time through a video monitor is considered an eyewitness, whose testimony is admissible regardless of the availability of a recording. This ruling supports the use of live surveillance observations in legal proceedings, particularly in retail theft cases, ensuring that crucial eyewitness accounts are not automatically excluded due to the destruction or unavailability of a corresponding video recording. This helps prevent a potential loophole where evidence could be suppressed by merely claiming a recording existed but was lost.
