Jeffersonville, IN asked in Criminal Law for Minnesota

Q: What are the proper steps/rules for collecting video evidence and where does the chain of command begin?

A friend of mine is being charged for breaking into a storage facility after hours on camera. The video being used against him is known to have been collected by at least 2 different employees and transferred to a flash drive which investigators didn't pick up for 3 weeks. The prosecution only has 1 of the 2 employees listed as witnesses for trial. Can the authenticity of the video be challenged without both employees who were known to be in charge of transferring the video? Does the chain of custody include both employees or does it only begin when police have it in their possession? It is common practice for employees to collect this evidence or are police usually the ones to do so? And last is waiting 3 weeks to get the evidence a normal thing or is it unusual to take so long?

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1 Lawyer Answer
Sarah Gad
Sarah Gad
  • Criminal Law Lawyer
  • Minneapolis, MN
  • Licensed in Minnesota

A: The chain of custody typically starts once information is handed off from store employees to law enforcement. However, the chain of custody can include store employees who are either store detectives or security, or some type of asset protection specialist. Most major retailers have their own dedicated asset protection team dedicated to catching and deterring theft, and if a crime is reported, the chain of custody begins once these internal store detectives start investigating and collecting evidence in order to submit to law enforcement. The three week lapse suggests that there was some type of internal store investigation prior to the case being handed off to law enforcement in anticipation of prosecution (major retailers will usually conduct their own store investigation and prepare an "internal apprehension report" and send that off to law enforcement to pursue actual charges). I recently had a case alleging theft at a major department store with very sloppy chain of custody handling, and according to that store, their internal security/detectives (which I cited to underscore the chain of custody issues in that investigation) have the following duties:

"Prepare prompt and complete reports relative to all theft incidents, merchandise recoveries, accident investigations, audits, and other activities as assigned by the Asset Protection/Loss Prevention Manager. Have knowledge of and maintain strict compliance with the law and company policies concerning apprehensions, searches and seizures, and the preservation of evidence."

So in short, if they are just regular employees, then the chain of custody generally begins once those ordinary employees hand off evidence to law enforcement. If the store employees are some type of internal store detectives, the chain of custody begins when those store detectives begin collecting and handling evidence to forward to police/law enforcement. In any case, regular employees can be called to testify as witnesses. The State need not call all employees who alleged to have witnessed the crime, but they will have to call at least one employee who is familiar with the store surroundings to take the stand to authenticate the video (i.e. the prosecution will likely ask something along the lines of "is that is an accurate depiction of _____ store #____ located at _________ on ___ day?").

I hope this helps.

Susanne Eltamimi agrees with this answer

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