Video evidence does not gain admission simply because counsel tenders it for entry at trial. It must be supportable under either the illustrative evidence theory or the silent witness theory. Both theories are long-standing common law tests used to regulate the admission of video evidence in the courtroom. Under the illustrative evidence theory, a sponsoring witness must be presented who can attest to being at the scene shown in the video and who can confirm that the video recording fairly and accurately depicts the scene or event. Under the silent witness theory, no such sponsoring witness is required but the video recording must first be authenticated to be admissible. 

This article presents and discusses three cases decided in the United States within the past year in which video evidence was admitted under the silent witness theory at trial and where that ruling was challenged on appeal. Even though these are US cases, the same principles apply in Canada and the United Kingdom. 

The Cases

In State of New Mexico v. Azamar-Nolasco, 2021 WL 2589782 (Supreme Court of New Mexico), the appellant was convicted of murder based in part on surveillance video evidence. The victim had been in a domestic relationship with the appellant where violence, harassment, and stalking behaviour featured prominently. Ultimately, the victim was found dead in her home and her death was ruled to be a murder. The question for the trial court was to determine the identity of her killer. A CCTV system had been installed in the victim’s home owing to her safety concerns. On the day of her death, the video recording showed that a person dressed in black, wearing no shoes, had entered the residence. This proved to be pivotal evidence. The video recording was tendered as evidence at trial under the silent witness theory. 

The prosecution authenticated the video evidence by calling two witnesses. The victim’s daughter testified about the operation of the CCTV system. She advised as to camera placement, the fact that it provided 24-hour live monitoring, its ability to provide motion activation recording, and how she could access the video recordings through a mobile application. She further stated that she had tested the features of the CCTV system so that she was familiar with its operation and confirmed that it was operating correctly. On the morning of her mother’s death, she received a notification from the CCTV system that movement was detected in the home. She downloaded the video file and observed a person who was not her mother walking within the residence. She provided that video file to the police. The video file could not be edited or modified by anyone viewing the video in its native format. A police officer testified that the scene shown in the video accorded with his observations at the scene and noted that the victim was wearing the same shirt in the video that he observed her wearing after her death. 

The trial judge admitted the CCTV evidence under the silent witness theory based on the authentication evidence of the daughter and the police officer. On appeal, the Supreme Court upheld the trial judge’s ruling and found that the witnesses had sufficient knowledge and offered informed testimony about how the CCTV system operated and the integrity of the motion activated recording. The bar for admission of video evidence is relatively low and the evidence presented by the prosecution met that bar.

In State of South Dakota v. Reeves, 2021 WL 5365 (Supreme Court of South Dakota), the appellant prisoner was charged with assaulting a jail guard. Part of the evidence tendered by the prosecution was jailhouse CCTV video. The video evidence was introduced by a jail officer who was not present during the incident and could not sponsor the accuracy of the video recording from that perspective. However, he was able to describe how the jail CCTV system worked, the location of the cameras, the operation of the server where the videos were stored, the location shown in the video, how he exported the video from the server, and the fact that it was not edited. The trial judge admitted the video evidence on the basis that the officer’s testimony provided adequate authentication evidence to engage the silent witness theory. The Supreme Court agreed with the trial judge and found that an adequate foundation had been led as to the operation of the CCTV system and the integrity of the jail recording. 

In Stott v. State of Indiana, 174 N.E.3d 236 (2021) (Court of Appeals of Indiana), the appellant was convicted of two counts of resisting law enforcement and sentenced to prison. He appealed his conviction and argued in part that the trial judge erred in admitting certain photographs which he argued had not been sufficiently authenticated. The evidence disclosed that a relevant video recording was found at a McDonald’s restaurant where the CCTV system captured images of potential value. Rather than obtain a copy of the recording, a police officer instead took photographs of the McDonald’s video monitor with his cell phone. Despite arguing that the photographs had not been properly authenticated, the trial judge admitted the images under the silent witness theory. The question for the Court of Appeals was whether the trial judge was correct. 

The prosecution argued on appeal that this case was not governed by the silent witness theory since the officer viewed the McDonald’s video recording and took photographs of it. Not surprisingly, this argument was found to have no merit. Absent a witness who could verify that the McDonald’s video fairly and accurately depicted the location and event shown or who could provide information about the system that recorded the video, and that the video has not been altered, the silent witness theory had not been fully engaged. The Court stated that the prosecution led no evidence of authenticity whatsoever. There was no evidence about the McDonald’s CCTV system and how it operated, or whether the video recording was accurate, or that it had not been altered prior to the officer photographing it with his cell phone. Accordingly, the evidence was excluded on appeal.  

Analysis and Commentary

When counsel is unable or unwilling to present testimony from a witness who was present when the recorded event occurred, the video evidence is not admissible under the illustrative evidence theory as there is no sponsoring witness. Counsel must therefore seek admission under the silent witness theory which is preconditioned upon proof of authenticity. This can be achieved by presenting competent evidence about the CCTV system or other recording device that recorded the video evidence. This should include information about the make and model of the system, the number of cameras available, the capacity for motion detection, infrared capability, and any other relevant technical details. Second, evidence must be presented on how the video was exported or otherwise obtained from the system, what cameras were downloaded, and the relevant time frame targeted. Finally, evidence is required as to the presence or absence of editing and anything else that may impact the integrity of the media. 

These requirements are not onerous but require advanced planning. They were easily established in Azamar-Nolasco and Reeves. The evidence led in those cases provided the court with sufficient information to authenticate the tendered video evidence. In contrast, in Stott, no effort was apparently made to authenticate the video evidence. This was a self-inflicted injury by the investigators and the prosecution. The authentication hurdle could have been easily met had thought been given to the steps needed to accomplish this. The Court of Appeals was correct in excluding the evidence. Having read many cases on authentication, and having prosecuted many cases involving video evidence, it is almost always the fault of counsel when video evidence is excluded for lack of proof of authenticity. These technical issues are not taught in law school and must be learned on the job, though learning through failure is unpleasant and does a disservice to the case.