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Law of evidence when dealing with CCTV video recordings

The objective of this article is to educate Hi-Tech Security Solutions’ readers, equipping you with the basic necessary knowledge to ensure the admissibility as real evidence of CCTV recordings in a court of law or quasi judicial tribunal, and that the maximum probative value is attached to the recording. Without this knowledge the investment in a sophisticated recording system will be of little value as such recordings may be declared inadmissible evidence or alternatively have little probative value.

Probative material refers to anything a court may take into consideration in making a finding. Real evidence can be photographs, video and audio recordings. The Criminal Procedures Act, 51 of 1977 expressly allows for production of photographs as evidence. Video recordings, including digital recordings, are to be considered as merely a series of photographs and are therefore allowed as evidence in terms of the same section of this act.

Calibration of equipment

* Where a machine need not be calibrated, a court can take judicial notice of its accuracy or call for preliminary professional testimony that the instrument or process is generally known to be accurate or trustworthy.

* Where a machine needs to be calibrated the court will need expert evidence to prove that the particular instrument was reliable.

A camera is not an instrument that needs to be calibrated. The recorder date and time, however, needs to be set or reset, which is information supplied by human agent. The party responsible for checking or setting the time and date will have to produce additional evidence to show the correct procedure was carried out in checking or setting the time and date. This may have to be supplied in the form of an affidavit.

Printouts

Computer printouts, protocol files, etc, are real evidence. Printouts are therefore reliable in and of themselves. As such, video recordings and computer data printouts constitute very strong and direct evidence of its contents.

Authentification of computer printout

Computer printouts, which may be video or data information, must be accompanied by an affidavit authenticating such printouts. The affidavit should:

* Identify the printout and confirm that it is a computer printout as defined in the Act (Computer Evidence Act 57 of 1983).

* Confirm that it is a true copy, reproduction, transcript or interpretation of the information.

* Describe in general terms the nature, extent and sources of its data, instructions supplied to the computer and the purpose and effect of the data processed by the computer.

* Certify that the computer functioned correctly.

* Certify that no reason exists to doubt or suspect the truth or reliability of any information recorded or contained in the resultant printout.

This procedure should be followed where evidence is likely to become relevant in a trial.

Evidence obtained unconstitutionally

The test that evidence must be subjected to in order to pass the Constitutional test is:

1. Was there a personal right?

2. Was this right violated in the manner in which the evidence was obtained?

3. Would its admission render the trial unfair and/or

4. Would its admission be detrimental to the administration of justice?

The onus to prove point 1 and 2 above rest with the defense.

Ensuring admissibility

What does one need to do to ensure admissibility and maximum probative value of digital recordings and printouts of computers? Simply put, one needs to:

* Make two copies of the incident onto a stiffy or CD.

* Make sure the stiffy or CD is labelled according to the incident or case number.

* Make an affidavit as detailed in 4 above.

* Store the stiffy or CD in a sealed envelope with the operator's signature and date across any place where the envelope can be opened.

* Store these in a safe.

* One copy of the disk affidavit should be handed to the investigating officer.

* If necessary, make two video cassette recordings of the incident. Label the cassette in a similar manner to the stiffy or CD. Store these with the CD or stiffy;

* Make a copy of the original incident onto a PC workstation if this is possible.

* Do not use a stiffy, CD or cassette tape for numerous incidents. Use it only for one incident.

* Make sure that camera lenses and housing glass fronts are clean to ensure the best quality recording.

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