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authenticating video issues September 28, 2017

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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authenticating video issues
September 28, 2017
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authenticating video issues
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Ken:
    Most of us know that major manufacturers of NVRs and DVRs have a way to authenticate video being exported for use as evidence. Supposedly the algorithms verify the video hasn’t been tampered with and is an exact copy of the original recording.
    I question the admissibility of Dewarped fisheye video which is deliberately modified to obtain a usable picture. These are altered from the camera view, so who is to say how much and in what areas the altered video is in?  I have been reading up on the admissibility of video as evidence, knowing about signing off for chain of custody, and having at least one extra copy, also sealed. I thought the exported video using the manufacturer’s player that authenticates the video while playing is good enough for evidence.
    The research I’ve done indicates that the self authentication doesn’t apply to video. Of course I’m not an attorney. Just an engineer trying to make sense out of FRE902 and case law. I came away thinking that the player and authentication from the manufacturer’s system is not nearly enough. There are a number of ways a defense attorney can challenge the admissibility of any video. Most of them appear to be easily dealt with by having a tech testify about the system, the way the copy was made, in addition to proper chain of custody and evidence handling procedures.
    My main two questions are 
  1. is the self authentication built into NVRs and software worth anything at all?   And 
  2. how does one get dewarped video admitted as evidence when it is not the actual viewed video or isn’t the actual recorded video. It’s a re sampling of the camera view with dewarping applied either before the recording or upon playback. Either way it isn’t what the actual camera hardware sees. How is this admissible at all?
    What is your professional opinion?
Mitch Cohen
BRIC SECURITY
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Response
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    I have no professional opinion, other than mentioning that I suspect only a very few alarm companies would consider this anything other than intellectual stimulation; not something that comes up in their business.
    There are two levels for admissibility into evidence.  Civil cases and criminal cases, the latter of which requires far more scrutiny.  In civil cases there often is no need for "chain of custody".  Either the picture or video depicts what was seen or its doesn't.  A lawyer doesn't need to be Perry Mason to get a video admitted.  "How was this video obtained?  Do you recognize the area as part of your house?  How did you make your copy of the video?  Is what you have here today the same as what you viewed on your recorder?  I move it into evidence...."  
     Unless your subscriber lets you know that it requires data that can be used in civil or criminal matters I don't think you need be concerned with the data's admissibility.  It's enough that the subscriber can retrieve it.  
    I'm sure others will have better answers and we'd like to hear from you.
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
516 747 6700
www.KirschenbaumEsq.com