FOUNDATION FOR AUTHENTICATION OF NON-OBSERVED RECORDED EVENTS
From MN Bench Book - Trial Procedures & Practices for Judges
In the Matter of the WELFARE OF S.A.M., 570 N.W.2d 162
United States v. Clayton, 643 F.2d 1071
United States v. Taylor, 530 F.2d 639,
Court of Appeals of Minnesota. No. C8-97-367. Oct. 28, 1997.
VIDEOTAPE MAY BE AUTHENTICATED BY TESTIMONY DESCRIBING RELIABILITY OF PROCESS OR SYSTEM THAT CREATED TAPE, AS WELL AS BY TESTIMONY FROM OBSERVER THAT VIDEOTAPE IS AN ACCURATE PORTRAYAL OF EVENT;
Juvenile appealed after the District Court, Hennepin County, J., adjudicated him delinquent, based on his actions during altercation on city bus. The Court of Appeals, Lansing, J., held that: (1) videotape may be authenticated by testimony describing reliability of process or system that created tape, as well as by testimony from observer that videotape is an accurate portrayal of event; (2) videotape of assault, which was made by camera on board bus, was sufficiently authenticated; and (3) evidence supported adjudication of delinquency. Affirmed.
For purposes of proving content, a videotape is classified as a photograph.  In practice, authentication of non-fungible objects such as photographs is usually provided by a witness, while fungible items like drugs or weapons are usually authenticated through a chain of custody or unique markings.
Rule 901(b)(9) provides an alternate method for authentication of various types of tangible evidence. Referred to by commentators as the “silent witness theory” when applied to photographs, this method allows for authentication through evidence describing a process or system. The evidence must both describe the process or system and show that it produces an accurate result.
The "silent witness theory," X-ray images or other photographic-type evidence may be authenticated from evidence of the reliability of the process by which the image was made. This theory applies to videotapes and photographs as well as to X-rays. The silent witness theory has been adopted in almost all jurisdictions.
The fifth circuit court has approved a three-element authentication standard for photographs produced from a videotape.
The authenticating elements are:
- (1) The reliability of the process by which the film or videotape was activated and made;
- (2) The chain of custody of the film; and
- (3) The reliability of the process by which photographs were made from a videotape.
A Minnesota commentator has suggested a similar method, based on Rule 901(b)(9), for authenticating videotapes recording events not perceived by a human witness.
Videotape admissible when:
- 1. Evidence describes how film was made,
- 2. That process produced an accurate result, and
- 3. That evidence was relevant; citing Minn. R. Evid. 901(b)(9)).
One court admitted photos without testimony of a contemporaneous observer because there was no such observer. The photos made from a surveillance film were admitted to show events that occurred when all bank employees were locked in the bank's vault and therefore could not observe or testify to actual events. The court admitted the photos based on (1) the manner in which the camera was installed; (2) the manner in which it was activated; (3) the fact that the camera's film was removed immediately after the robbery; (4) the chain of custody; and (5) the fact that the film was properly developed.
- Minn. R. Evid. 1001(2) (defining “photographs” as still photographs, videotapes, X-ray films, and motion pictures).
- Minn. R. Evid. 901(b)(9).
- Id. at 15, 17-18.
- Id. at 15; see, e.g., State v. Holderness, 293 N.W.2d 226, 230-34 (Iowa 1980); Department of Pub. Safety & Correctional Servs. v. Cole, 342 Md. 12, 672 A.2d 1115, 1119-23 (1996); Midland Steel Prods. v. International Union, United Auto., 61 Ohio St.3d 121, 573 N.E.2d 98, 105 (1991); Brooks v. Commonwealth, 15 Va.App. 407, 424 S.E.2d 566, 569 (1992); see also Fisher v. State, 7 Ark.App. 1, 643 S.W.2d 571, 575 (1982) (listing jurisdictions adopting the silent witness theory).
- United States v. Clayton, 643 F.2d 1071 (5th Cir.Unit B 1981) (involving photographs made from bank surveillance camera films and citing United States v. Taylor, 530 F.2d 639, 641-42 (5th Cir.1976) (same)).
- Id. at 1073-74.
- See Bertrand Poritsky, Minnesota Evidence Trial book 151 (1995).
- Taylor, 530 F.2d at 641-42 (5th Cir.1976).
- Id. at 642.