Being named by store video or a loss-prevention employee does not settle whether you did it. The prosecution still has to prove beyond a reasonable doubt that you are the person who committed the crime, and when identity is disputed, jurors can be given a specific list of questions for testing an eyewitness identification.

What gave the store the right to stop you

A store stop rests on a much lower legal bar than a conviction. A merchant may detain someone for a reasonable time, to investigate in a reasonable manner, when the merchant has probable cause to believe that person is attempting to unlawfully take or has unlawfully taken merchandise (Penal Code section 490.5(f)(1)). Probable cause to detain and investigate is a lower standard than proof beyond a reasonable doubt, so being stopped, or even accused, does not mean an identification will hold up.

The statute also limits what the store can do during that stop. If you refuse to hand over an item the store has probable cause to believe was taken, its search is limited to packages, shopping bags, handbags, or other property in your immediate possession, and clothing you are wearing is excluded (Penal Code section 490.5(f)(4)). Once the item is surrendered or found, the store may ask for proof of your identity but may not require it. Those limits apply to the store; a peace officer who takes custody of a person arrested for one of these offenses may, after the arrest, search that person and their immediate possessions for the items alleged to have been taken (Penal Code section 490.5(f)(6)).

Police can also act on the video later. For shoplifting that did not happen in an officer’s presence, an officer may arrest without a warrant if the officer has probable cause, the arrest is made without undue delay, and one of several listed conditions is met, including the officer watching video footage that shows the person committing the offense or obtaining a sworn statement from a witness (Penal Code section 836(f)). That is a standard for making an arrest, not proof of guilt.

How courts test an eyewitness identification

When identity is disputed, the defense can ask the court to give California’s eyewitness identification instruction (CALCRIM No. 315). It tells jurors to consider questions such as whether the witness knew the defendant before, how well the witness could see the perpetrator, the lighting, obstructions, distance, and duration of the observation, whether the witness was under stress, how the witness’s description compares to the defendant, how much time passed before the identification, whether the witness was asked to pick the perpetrator out of a group, whether the witness ever failed to identify the defendant or changed their mind, and whether the witness and the defendant are of different races.

The instruction is written for eyewitness testimony, such as a loss-prevention employee who watched the person in the store. It does not specifically address an employee who only reviewed recorded footage afterward, but the same kinds of questions (how clear the image is, how long the person is visible, and what basis the employee had for connecting it to you) are the ones to press about that identification.

When a witness has expressed certainty, the instruction adds that an expression of certainty, whether the identification was made before or at trial, “may not be a reliable indicator of accuracy.” It lists factors for weighing that certainty, including whether the witness received information before or after the identification that may have increased their confidence (CALCRIM No. 315). A loss-prevention employee’s confidence that you are the person on the video does not settle the question. The instruction ends by placing the burden on the prosecution: if it has not proved beyond a reasonable doubt that the defendant committed the crime, the jury must find the defendant not guilty (CALCRIM No. 315).

Evidence to gather now

The details that matter in a video misidentification case are specific and often perishable. Worth gathering and reviewing with a lawyer right away:

  • The full, unedited footage, not just the clip or still frame the store relied on, plus footage from other angles and times covering the full incident.
  • The loss-prevention or incident report describing exactly how the identification was made: a live viewing, a review of recorded footage afterward, or a single photo shown to an employee.
  • The employee’s actual vantage point, the lighting, and the distance and duration of their view at the time.
  • Whether you were ever shown to the witness in a group or lineup, or only ever presented alone as the suspect.
  • Your own location records for the relevant time: receipts, phone location data, transit or rideshare records, or anyone who can place you elsewhere.

Camera systems do not keep footage indefinitely, so ask your attorney to send a written preservation request as soon as possible, before the footage is recorded over or deleted.

Before you respond

Disputing the identification does not end a case by itself, and the underlying charge, often shoplifting, has its own elements and defenses. If you were named or detained because of store surveillance and you were not the person involved, the Law Offices of David S. Chesley can review the footage, the store’s report, and your own records before you say anything further to the store or police. Call (800) 755-5174 to discuss your case.