Reviewing case law from a number of other states, the Illinois Supreme Court, in People v. Taylor, 2011 IL 110067, recently provided guidance on laying the foundation to admit evidence from a "silent witness" surveillance video.
Here is the background.
Several thefts occurred at the office of Kevin Marsh, dean of students at Deerfield High School in Deerfield, Illinois. Detective Annen recommended a surveillance camera in Marsh's office. Annen then set up a motion activated, wireless, digital camera concealed within a clock radio and a digital video recorder (DVR).
Annen placed the clock radio on Marsh's desk and tested the equipment by turning the device on and checking the quality of the picture that appeared on the camera. Annen later returned to Marsh's office and checked the equipment. He found that a recording had been made, but the images on the recording were not visible because of low light. Annen set up the equipment again and placed a small lamp on Marsh's desk.
Annen returned to the school after Marsh notified him that $20 was missing. Annen, along with Marsh and Paul Mocogni, the school's facility manager, watched the DVR recording. Marsh and Mocogni recognized Teryck Taylor on the recording. Taylor worked at the school as a night watchman.
Annen later copied the video surveillance footage onto a VHS tape and placed the tape in his desk, "to be later locked in an evidence locker."
On December 16, Taylor admitted to stealing money from Marsh's desk on December 10. Before trial, his lawyer filed a motion in limine to bar the State from using the VHS tape because it contained a 30-second gap. The trial court denied the motion.
The trial court found Taylor guilty of misdemeanor theft. Taylor then filed a motion to reconsider or in the alternative for a new trial, which the trial court denied, finding proper foundation for admission of the tape. Taylor appealed.
The appellate court reversed and remanded, finding that the State had failed to lay a proper foundation for admission of the VHS tape because it "failed to establish the reliability of the process that produced the tape." Specifically, the Court concluded that the State "failed to establish a proper chain of custody, failed to establish that the camera was working properly and [that] the original DVR recording had been preserved, and failed to give an explanation of the process of copying the recording on the DVR to the VHS tape."/p>
On appeal, the Illinois Supreme Court noted that most jurisdictions allow photographs and videotapes to be introduced as substantive evidence under the "silent witness" theory, though the circumstances of each case will vary, as will the foundational requirements for guaranteeing the genuineness of the evidence submitted.
In Taylor's case, the appellate court evaluated several factors to determine if a proper foundation had been laid for the admission of a VHS tape: (1) the device's capability for recording and general reliability; (2) the competency of the operator; (3) proper operation of the device; (4) the manner in which the recording was preserved (chain of custody); (5) the identification of the persons, locale, or objects depicted; and (6)the explanation of any copying or duplication process. While the Supreme Court agreed that these factors are relevant when determining the reliability of a surveillance videotape, it noted that this list is not exclusive. What factors are and are not relevant depends on the facts of a given case. Ultimately, the dispositive issue is the accuracy and reliability of the process that produced the recording in question.
According to the appellate court, the State had failed to meet its burden because it failed to establish that the camera was working properly; failed to give an explanation of the process of copying the recording from the DVR to the VHS tape; failed to show a sufficient chain of custody; failed to preserve the "original" DVR recording; and failed to establish that no alterations, or deletions had been during the recording and copying process.
The Supreme Court found the appellate court's reasoning overly restrictive. Reversing, the Court looked to the overall totality of the evidence in finding proper foundation for admission of the tape. As to the appellate court's particular findings, the Court noted that, while the camera might not have functioned perfectly, it "clearly worked." As to the State's explanation of the copying process, while the appellate court had refused to admit certain evidence on grounds that it did not comply with the rules of evidence, the Court opined that compliance with evidentiary rules is not a prerequisite for the admission of evidence. Questions of admissibility may be made without strict adherence to traditional rules of evidence. Further, the Court observed that a strict chain of custody is not always necessary, especially where other factors demonstrating authenticity or a lack thereof are lacking. Likewise, the Court found that a VHS tape made from the original DVR recording was plenty "original" enough for admissibility purposes, thereby rejecting the appellate court's more restrictive reading. Finally, the Court found overly restrictive the appellate court's requirement that there be no deletions or alterations during the process of copying from DVR to VHS form
In sum, the Supreme Court took a more flexible, less exacting view of the foundational requirements for admitting a survelliance viedo under the "silent witness" theory. Affirming the judgment of trial court, the Court suggested a more lenient, and perhaps for some pragmatic, standard for admitting such evidence. As emphasized by the Supreme Court itself, however, how this standard plays out in a given case will depend ultimately on the facts presented.
· Michael R. Lied
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