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Point of Law

Francisco Ed. Lim

CCTV footage as evidence

Francisco Ed. Lim

October 17, 2014

Closed circuit television (CCTV) cameras in public places are now a worldwide fixture. We see them on the streets, train stations, bus stations, restaurants, hotels and apartment buildings. They have proven extremely helpful in tracking down perpetrators of crimes.

A case in point is the Boston Marathon bombing in 2013. Using CCTV footages in different positions in downtown Boston, the Federal Bureau of Investigation was able to focus its investigation on the Dzhokhar and Tamerlan Tsarnaev brothers as the possible perpetrators of the heinous crime. The FBI’s release of the CCTV footages and the corroborating photographs on its website led to the Tsarnaev brothers’ identification and eventual capture.

We have other deadly incidents caught on CCTV cameras. Examples are the Oklahoma City bombing in 1995; the London underground train bombing in 2005, more popularly known as the 7/7 terrorist bombing, and the 2013 bomb attacks outside the Iranian Embassy in the Lebanese capital of Beirut.

Locally, we have the highly sensational case of Vhong Navarro, who was mauled by businessman Cedric Lee and his friends for allegedly raping 22-year-old Denise Cornejo at a plush condominium in Bonifacio Global City. But the CCTV footage released by the National Bureau of Investigation showed that Navarro and Cornejo were not in the condo unit at the same time. In fact, the footage showed Cornejo entering her building’s elevator and then exiting the building shortly after Navarro arrived. She did not appear like she had just escaped from a rape attempt and, instead, casually examined herself in the elevator mirror.

Quite recently, we have the frat mauling incident involving Guillo Cesar Servando, a sophomore student of De La Salle-College of St. Benilde, details of which were also caught on CCTV. The release of the footage triggered the surrender of some participants in the fraternity hazing and eventual resolution of the crime by the Manila Police Department.

Undoubtedly, CCTV footages are great help to authorities in investigating the commission of crimes. But are they admissible in evidence; if so, how should they be presented in evidence before our courts of law? How should they be authenticated as to make them admissible in evidence?

First, what is meant by authentication? Authentication is the process of convincing the court that a document is what it purports to be; of proving the origin of the image and that it has not subsequently been altered (or, where alteration has occurred, proving the nature of the alteration). Such alteration could include, for example, image enhancement or image manipulation.

The rules of evidence contained in the Rules of Court do not expressly deal with the authentication of video evidence such as CCTV footages. This is understandable because video evidence was unheard of, or at least not well known, when the Supreme Court formulated the Rules of Court almost fifty years ago.

Fortunately, following the enactment by Congress of the E-Commerce Act (ECA) in early 2000, we were tasked to draft what eventually became the Rules on Electronic Evidence (REE).

Unlike the Rules of Court, the REE contains a provision expressly dealing with video evidence. The REE provides that “[a]udio, photographic and video evidence of events, acts or transactions shall be admissible provided it shall be shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof.” (Section 1, Rule 11)

The foregoing provision follows the jurisprudential rule that authentication of photographs is not limited to the photographer who took the picture but that these can also be identified by another competent witness who can testify as to their exactness or accuracy (Sison vs. People, 250 SCRA 58 [1995]; Republic vs Court of Appeals, 299 SCRA 199 [1998]). It is what I call the “layman’s approach” to authenticating video evidence.

But is this not too simplistic a way for authenticating CCTV footages? The answer seems to be no. In the United Kingdom, for example, studies were made on how digital evidence (which includes CCTV footages) could be authenticated before the courts of law. The studies included technical methods such as encryption, watermarking, or digital signature. Best practices were adopted in respect of digital evidence, including the creation of audit trails to authenticate it and the technologies used in connection with digital documents.

However, while these best practices were put in place and their use recommended, the rule of evidence in the UK remains to be that digital evidence should not be inadmissible solely because it does not conform with specific technological requirements. In other words, no particular authentication technology is required before a digital image could be admitted as evidence in court. The UK still considers the “layman’s approach” as a valid mode of authentication. If at all, the rule in that jurisdiction is that authentication technology merely increases the evidential weight of a digital image; in local parlance, it goes into the weight rather than the admissibility of the evidence.

(The author is a senior partner of the Angara Abello Concepcion Regala & Cruz Law Offices and a law professor in the Ateneo de Manila University. The views in this column are exclusively his, and should not be attributed in any way to the institutions with which he is affiliated. He may be contacted through francis.ed.lim@gmail.com.)