Sean Harrigan and his two friends, Agarwal and Ramelli, drove in Harrigan’s car to Par-A-Dice Hotel and Casino in East Peoria, Illinois.
Business Litigation I JULY 6, 2015
Surveillance Video Authenticated Even Absent Eyewitness with Personal Knowledge
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 $2,500.
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 Champaign police.
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 video.
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 for itself.”
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 (1983).
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 fact-finding duties.
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 appearance.
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.