A witness who has never met someone in person may nevertheless identify that person in a video if there is a sufficient foundation for the identification, said the Fourth District Court of Appeal in People v. Larkins (Oct. 4, 2011, E050725), __ Cal.App.4th __ [2011 DJDAR 15024].
Defendant was charged with breaking into lockers at various fitness centers and stealing their contents. Videotapes of the defendant entering and leaving the gyms were shown to the jury. Defendant objected when the Loss Prevention Manager at one of the gyms identified him as the person shown in the videos, on the ground that the manager had never seen the defendant in person.
Although there is language in some cases that suggests that the identification of a defendant in a surveillance video by a law enforcement officer must be based on prior contacts, these cases were distinguishable, said the court. In the cases cited by the defendant, the officers were making an identification of a person depicted in a photograph where the defendant's appearance had changed between the time of the photo and trial. Here the defendant's appearance had not changed, the witness was not a law enforcement officer, and the identification was of a person in a video, not a photograph. The witness had observed the defendant in 20-30 videos, where he was able to observe his posture, gait and body movements, and his degree of knowledge of the subject affected the weight of the testimony, not its admissibility.
The court found a fundamental difference between identifying a person from a photograph and from a video. It noted, however, that one can be sufficiently familiar with a person from having seen photos of them to be able to identify them in another photo or in person. "We do not doubt that a star-struck young lady who has seen pictures of Justin Bieber in magazines could easily identify him were she to see him on a video, on television or in person," said the court.