Sean Harrigan and his two friends, Agarwal and Ramelli,
drove in Harrigan’s car to Par-A-Dice Hotel and Casino in East Peoria,
Harrigan had a good day – at least at first. Harrigan played
craps the entire night and ended up winning $23,000. He was paid in two “bricks”
of $10,000, and the remaining $3,000 was placed in a white envelope. At 4:29
a.m., a security guard escorted Harrigan, Agarwal, and Ramelli to Harrigan’s
car, which was parked in the casino’s parking lot.
The men stopped at a nearby gas station, and purchased sodas
for the ride home. Around 6 a.m., Harrigan drove into an underground parking
garage at his apartment in Champaign, Illinois.
Agarwal and Ramelli exited the passenger side of the
vehicle. Harrigan got his money from the glove compartment, opened the driver’s
side door, and prepared to get out.
He noticed a black male quickly approaching. The man pointed
a revolver at Harrigan, and demanded the money. Harrigan gave the man his cell
phone and a money clip containing his driver’s license, casino card, and
James Simmons, a surveillance shift supervisor for Boyd
Gaming Corporation at Par-A-Dice Hotel and Casino, was told a casino patron had
been robbed upon returning home to Champaign. Simmons reviewed the casino
surveillance footage and observed a white male walking out slowly behind
Harrigan’s group as they were escorted out to their vehicle. Simmons quickly
identified John Williamson as a possible suspect.
Simmons sent photographs of Williamson and his Illinois
identification card to the Champaign police department. Simmons was then told
that the robber was a black male. Simmons started looking at Williamson’s
activities in the casino and on the floor until he observed a black male who
was with Williamson. Simmons identified the black male, Marvino Mister, as a
possible suspect and forwarded pictures of him and his state ID card to
At Mister’s trial, Simmons testified he copied surveillance
footage from the casino onto two digital video discs (DVDs). Footage from the
hotel’s surveillance system was copied onto a CD. Simmons testified there were
no errors in the recording system, and he did not alter or delete any portions
of the recordings. Although Simmons did not personally observe the events
depicted in the surveillance recordings, he testified they fairly and
accurately portrayed what happened from April 11, 2012, to April 12, 2012.
Although Simmons did not personally observe the events
depicted on the surveillance video as they occurred, the State asked him to
narrate portions of the video.
A jury found Mister guilty of armed robbery, and in January
2013, the trial court sentenced him to imprisonment.
On appeal, Mister argued the trial court committed plain
error when it allowed Simmons to narrate the events depicted on the surveillance
The admission of evidence is ordinarily within the sound
discretion of the trial court; however, the court of appeals reviewed de novo whether
it was proper for the State’s witness to narrate the contents of the video. People v. Sykes, 2012 IL App (4th)
111110, ¶ 30.
Under the “silent witness” theory, a surveillance video may
be admissible as substantive evidence in the absence of authentication by an
eyewitness with personal knowledge of the content if there is adequate proof of
the reliability of the process that produced the recording. Under this theory,
it is not necessary for a witness to testify to the accuracy of the images
depicted in the video so long as the accuracy of the process used to produce
the evidence is established with an adequate foundation. This is so because the
evidence is received as a so-called “silent witness”-- a witness which “speaks
Here, Mister did not challenge the admissibility of the
surveillance videos or certain still photographs as substantive evidence.
Instead, he argued he was denied a fair trial because the trial court permitted
Simmons to narrate the events depicted in the surveillance videos. Mister
argued this testimony invaded the province of the jury and, therefore, required
a new trial.
Illinois has long allowed identification testimony by
witnesses who did not personally observe events depicted in a video recording. People v. Starks, 119 Ill. App. 3d 21
In Starks, the
trial court admitted testimony from several correctional officers who
identified defendants involved in a prison riot after viewing a videotape of
the riot. The officers were familiar with the defendants and had seen the
defendants on many occasions prior to the riot.
The defendants were in the background of the video, making
it difficult for the jurors to make the identification. Since the officers were
familiar with the defendants’ mannerisms and body movements, it was easier for
them to identify the defendants than it was for the jurors.
In Starks, the
court concluded identification testimony was an appropriate aid to the trier of
fact in instances where the surveillance did not render a clear depiction.
Various panels of the Illinois appellate court have read Starks as establishing a two-part test;
identification testimony of a lay witness who has no personal knowledge of the
events depicted on a videotape is admissible where (1) the witness is familiar
with the defendant prior to the offense and (2) the testimony aids the trier of
fact in resolving the issue of identification and does not invade the jury’s
Appellate decisions have found two situations where
testimony is helpful to the trier of fact. The first is where a defendant’s
appearance has changed between the time of the recording and date of trial. The
second situation is where the video is an unclear or a limited depiction.
Since Illinois Rules of Evidence 701 and 704 are identical
to Federal Rules of Evidence 701 and 704(a), the court turned to federal
decisions for guidance.
A significant majority of jurisdictions which have addressed
lay opinion testimony have held a lay witness may testify regarding the
identity of a person depicted in a surveillance video if there is some basis
for concluding the witness is more likely to correctly identify the defendant
from the videotape than the jury.
All courts among the majority agree a lay witness who has
sufficient familiarity with the defendant may properly testify as to the
identity of the defendant in a surveillance videotape. Moreover, several
jurisdictions agree that whether a lay witness’s prior contacts with the
defendant are extensive enough to permit a proper identification is a matter of
weight for the jury, not admissibility.
The Mister court adopted
the majority view and held that a lay witness may testify regarding the identity
of a person depicted in a surveillance video if there is some basis for
concluding the witness is more likely to correctly identify the individual from
the videotape than is the jury. The lay witness’s familiarity with the person
goes to the weight to be given to the witness’s testimony, not the
admissibility of such testimony. Additionally, the person’s appearance need not
have changed from the time of the videotape to the time of trial, so long as
the lay opinion testimony is helpful to the jury. Although the witness must be
in a better position than the jurors to identify the individuals captured by
the camera, this does not require the witness to have prior knowledge of those
individuals; nor does it require those individuals to have changed their
Simmons’ testimony was rationally based on his perception of
the video. Admittedly, Simmons was not present and did not observe anything at
the casino while the events took place, but the appeals court found that, when
analyzing the perception of the witness under Illinois Rule of Evidence 701,
the focus was properly placed on Simmons’ perception of the video. Simmons
watched surveillance footage from numerous cameras placed throughout the casino’s
property to track Mister’s movement during the entire five-hour period he was
at the casino. He produced short clips and isolated certain frames to create
still images—including color photographs of Mister and Mister’s driver’s
license. On the basis of his close scrutiny of the surveillance footage and the
135 pages of still photographs he created, Simmons’ opinions were ultimately
derived from his repeated viewings of the video, which he carefully examined.
Simmons had the benefit of reviewing the video numerous times, giving him the
opportunity to comprehend the events transpiring on the video and determine the
identity of the participants.
Simmons’ testimony was also helpful to the trier of fact.
His opinions were intended to provide a clearer understanding about whether
Mister and Williamson were at the casino, left the casino in same vehicle, and
followed Harrigan home.
The video contained nearly four hours of footage, lacked
clarity, was difficult to assess, and involved fluid scenes and numerous
individuals and vehicles.
Simmons had to view the videotape a “few times” before
identifying a black male as a possible suspect. To have the jury do likewise
would have been an inefficient use of the jury’s and the court’s time.
Simmons’ testimony did not invade the province of the jury.
His testimony only linked individuals depicted in the surveillance video as
being the same individuals depicted in the still photographs.
Because Simmons’ testimony was (1) rationally based his own
perception of the video and (2) helpful for the jury to determine whether the
two individuals were at Par-A-Dice Casino earlier in the evening, Simmons’
testimony was admissible under Illinois Rule of Evidence 701.
People v Mister,
2015 IL App (4th) 130180.
· Michael R. Lied
· Howard & Howard Attorneys PLLC
· One Technology Plaza, 211 Fulton Street, Suite 600, Peoria, IL 61602
· (309) 999-6311