When is video evidence admissible?

Quick Take: In North Carolina vs. Ramsey (COA25-145, filed Oct. 1, 2025), the Court of Appeals approved admission of a short cell-phone clip for illustrative purposes:

• Eyewitness testified it fairly and accurately depicted what was observed
• Court treated missing chain links as issues of weight rather than admissibility
• Controlled replays of video evidence during deliberations are OK, with limiting instructions.
• The decision aligns neatly with North Carolina v. Cannon and North Carolina v. Mason, offering a practical roadmap for authenticating, limiting, and using phone videos at trial.

Criminal defense lawyers frequently handle video evidence in court, whether it comes from a bystander’s phone, a doorbell camera, a store’s DVR, or law enforcement’s body-worn camera (BWC).

If you’re litigating a case where video evidence may decide the outcome, it helps to have a clear plan for authentication, admissibility, and limiting instructions. Attorney Bill Powers at the  Powers Law Firm is available for professional consultations and referrals when you want another set of experienced eyes on your trial strategy.

Give us a ring if you’re dealing with a complicated legal issue involving Misdemeanor Death by Vehicle, Felony Serious Injury by Vehicle, or Felony Death by Vehicle.  It would be an honor and a privilege to help!  TEXT or call 704-342-4357

Authenticating Video Evidence in North Carolina

North Carolina provides two general methodologies for introducing video evidence:

1. Illustrative Purposes. A percipient witness  (perceptive; good understanding of what happened) may be able to testify that the clip fairly and accurately shows what they saw. That can serve as sufficient foundation for admissibility and later publication to the jury. A limiting instruction by the Court, making clear that the clip illustrates testimony and is for illustrative purposes only, and not as independent proof or substantive evidence, is appropriate.

2. Substantive Evidence of the Underlying Offense. The proponent carries the heavier burden of proof and production, showing relevance. That requires laying a foundation, through testimony about the recording device and process, continuity of custody, and the absence of edits or alterations (true and accurate depiction), occasionally supported by digital forensics.

North Carolina vs. Cannon organized these paths and remains the touchstone for what counts as a sufficient foundation.

What Cannon actually did (1990, reversing 92 N.C. App. 246):

The Court of Appeals in Cannon articulated the four ways to authenticate a videotape (eyewitness testimony for illustrative purposes, chain of custody and operation testimony, immediate post-processing inspection, and testimony about editing).

Those categories are widely cited by later courts as acceptable routes.

• The four accepted routes from the Court of Appeals’ Cannon decision:

  1. Eyewitness illustrative authentication
     A witness with first-hand knowledge testifies that the video fairly and accurately illustrates what the witness saw.

  2. Device operation plus chain of custody
     Testimony about how the camera or system was checked and operated, together with the chain of custody for the recording.

  3. Post-processing identity
     Testimony that the images introduced at trial are the same as those inspected immediately after processing.

  4. No editing and accurate depiction
     Testimony that the recording has not been edited and that it fairly and accurately recorded the scene.

• The North Carolina Supreme Court’s 1990 opinion in State v. Cannon, 326 N.C. 37, reversed on other grounds, not to reject those four routes. Later North Carolina cases continue to cite the 1988 Cannon list when discussing video authentication foundations.

North Carolina vs. Mason

• Purpose matters. In Mason the State offered a store surveillance video as substantive evidence, not merely illustrative. The Court scrutinized the foundation for the operation of the system, chain continuity, and accuracy. If the record is deficient on those points, the Court may treat admission of that kind of video evidence as error, but. . .

• Prejudice analysis controls remedy. The Court may find such error harmless, if there is substantial other evidence of guilt, including eyewitness identifications; improperly admitted evidence may otherwise be deemed “Harmless Error.”

• How you use Video Evidence: If opposing counsel seeks to introduce video evidence, force them to pick a purpose. If they say “substantive,” Mason supports taking a hard look at laying a proper foundation. If they pivot to “illustrative,” ask for a limiting instruction and preserve objections challenging weight and Rule 403 – Relevancy.

What You Need to Know about the Fact Pattern in North Carolina vs. Ramsey and Video Evidence

The State offered a roughly twenty-second cell-phone clip found at the scene. Before the jury saw it, the trial judge held a voir dire with a digital forensics detective who explained the phone’s intake and seal status.

DWI First Offense: What You Need to Know

The eyewitness testified that the clip fairly and accurately illustrated the driveway altercation she personally observed. The judge admitted the clip for illustrative purposes only and instructed the jury on its limited use.

On appeal, the Court reviewed authentication de novo and affirmed.

The eyewitness testimony satisfied the illustrative pathway from Cannon.

Gaps in the chain of custody generally affect weight, not admissibility – Bill Powers

The Court also may approve controlled replays during deliberations, hopefully with renewed limiting instructions as may be appropriate.  Expect the judge to allow the jury to see short clips more than once during deliberations.

Illustrative Purposes vs Substantive Evidence, In Practice

Practice Tips for Defense Lawyers: Force clarity on the purpose(s) of the evidence. If the proponent is to admit video evidence for illustrative purposes, the foundation may be lean, but the instruction should be clean.  Ask the Court to instruct when the video is first played and again if the jury requests a replay.

If the proponent says video evidence is substantive evidence, demand a deeper foundation that covers device operation, export process, custody, and editing. If an appropriate foundation is missing, request the Court to either exclude the clip or limit it to illustrative use with a firm instruction.

Key Point: Don’t assume opposing counsel knows the true purpose of the evidence (Illustrative vs Substantive) and/or the appropriate legal standard.  Be prepared for the opening statement, “We just want the finder of fact to see it and know what really happened.”  (BTW, chances are, that’s substantive evidence.)

Replays in Deliberations and Guardrails

In Ramsey, the jury asked to watch the short clip more than once while deliberating. The Court allowed it with limiting reminders. That is within the trial court’s discretion.

As criminal defense counsel, the Rule 403 objection should be specific. Identify the risk from repetition and request safeguards, for example, a full replay rather than pausing on a single frame, a renewed instruction before each viewing, and a limit on the number of times the jury can watch the clip in sequence.

If the clip contains audio that can inflame the jury, propose muting or transcripts aligned to the instruction.

If you are offering a video clip, offer the Court a measured procedure that protects the record and indicates fullness and fairness. Judges appreciate counsel who solves problems rather than posturing.

Defense Playbook For Video Evidence

• Pin down purpose. Demand on-the-record clarity that the video is illustrative unless the State can carry a substantive foundation.

• Demand instructions. Ask the Court to instruct before any publication and again if the jury requests a replay. Put your proposed language on the record.

• Attack perception. Challenge the witness’s vantage point, obstructions, lighting, frame rate, audio clarity, and duration, when appropriate.

• Press 403. Argue that looping a short, graphic clip risks unfair prejudice, and offer alternatives that reduce that risk.

• Turn chain gaps into weight. Where custody is imperfect, explain to the jury why that matters, even if the judge allows the clip in.

Prosecution Playbook For Video Evidence

• Choose the lane. If you can win with illustrative use, use it. It is efficient and less fragile.

• Lock in your witness. Prepare the percipient witness to testify that the clip fairly and accurately depicts what they saw.

• If you need substantive use, over-prove it. Bring the device operator or custodian, show the export steps, and be ready with metadata and timestamps, if available.

• Invite a balanced instruction. Providing a clear sample instruction can enhance appellate safety and credibility with the jury.

• Manage replays. Propose a fair procedure for deliberations that permits access without undue emphasis.

Policy Considerations You Should Weigh

Phone video is everywhere. Juries now expect to see it, and judges must manage it. That reality raises predictable concerns.

The “Breathalyzer” Explained

Short clips can present only the most dramatic seconds. Angles compress distances. Audio may be garbled. Slow motion can change how force looks. Those features do not necessarily destroy probative value (or admissibility), but they deserve careful foundation and precise instructions.

Trial courts have the tools to manage these risks:

• Decide the purpose
• Confirm the foundation matches that purpose
• Give instructions that tell jurors what a clip can and cannot prove
• Control replays

What This Means Going Forward For Video Evidence

North Carolina vs. Ramsey is a practical template for admitting and managing phone clips in criminal trials. You can authenticate a clip for illustrative use through eyewitness testimony that it fairly and accurately shows what the witness perceived. Chain gaps affect weight more than admissibility in that posture. Courts may allow controlled replays with renewed limiting instructions. If you want substantive use, you need a deeper foundation that addresses device operation, custody, and integrity.

Prescription Medication and DUI Charges in North Carolina

If you plan to litigate video in an upcoming case, you should map your foundation to your chosen purpose, draft your limiting instruction in advance, and shape your Rule 403 arguments around the specific risks of repetition, audio, and partial context. If you want a sounding board or a second set of eyes on the foundation or instruction language, I am available for professional consultations with counsel and the bench.