EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, September 3, 2012

Silence Please: Court Of Appeals Of Texas Applies Silent Witness Theory Of Authentication To "Jumbled Mess"

A defendant is convicted of driving while intoxicated. This conviction is based in large part on the admission of a DWI videotape recorded at the scene of the accident. "Admittedly, the videotape was a 'jumbled mess' because it did not operate correctly as it was produced from an older model dashboard camera." Was the videotape properly authenticated? According to the recent opinion of the Court of Appeals of Texas, San Antonio, in Hines v. State, 2012 WL 3731646 (Tex.App.San Antonio 2012), the answer is "yes." I disagree.

In Hines, the facts were as stated above, with the defendant, Roscol Hines, "claim[ing] the tape could not be authenticated because it was not 'made' by Officer Gallegos; rather, the videotape was from another officer's dashboard camera." The Court of Appeals of Texas disagreed, finding that

As for Hines's argument that the tape could not be authenticated by Officer Gallegos because he had not operated the recording device, the Texas Court of Criminal Appeals has overruled Kephart v. State, 875 S.W.2d 319 (Tex.Crim.App.1994), thereby removing the requirement that a witness testifying as to the authenticity of a piece of evidence be a "witness with knowledge" in the context of an audio recording. See Angleton v. State, 971 S.W.2d 65, 67 (Tex.Crim.App.1998). In other words, a witness is no longer required to be the maker of the recording or have otherwise participated in the conversation in order for his testimony that the recording is what it is claimed to be to sufficiently authenticate it....

In other words, Texas has adopted the "silent witness" theory of authentication, which generally requires the satisfaction of at least five factors before a surveillance video, DWI recording, or similar evidence can be admitted:

evidence of the time and date, presence or absence of evidence of tampering, the operating condition and reliability of the system, operating and testing procedures, and the identification of participants depicted in the recording. State v. Haight-Gyuro, 186 P.3d 33 (Ariz.App. Div. 2 2012) (emphasis added).

So, while most courts require the system creating a "silent witness" recording to be in good operating condition and reliable, the Court of Appeals of Texas had no problem with the older model dashboard camera that produced a "jumbled mess." Instead, according to the court,

Hines's argument that the poor quality of the video tape makes it impossible to authenticate also fails. In Schneider v. State, the defendant argued that certain audio tapes were inadmissible because they contained gaps the witness could not explain. 951 S.W.2d 856, 862 (Tex.App.-Texarkana 1997, pet. refd). The appellate court held the tapes were admissible because the sponsoring witness testified the tapes fairly and accurately depicted the conversations therein....



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I think the Tx court is right. It is treating a video just like a photo, and rightly so. This is not a "silent witness" case because the arresting officer was there and witnessed what happened. The video just corroborated what he testified about. As with photos, you don't need the photographer, just someone with first-hand knowledge of what is depicted who can say it is fair and accurate. Same for audio recordings: you don't have to be one of the speakers or the operator of the recorder; you just have to have been listening (live, e.g.) and can compare what's on the tape with what you heard. Here the officer who made the stop could look at the other officer's dash-cam and say it accurately depicts what he witnessed. Who cares who made the video?

Whether the video "mess" did, in fact, accurately and fairly depict what happened is a different question, however.

Posted by: Fred Moss | Sep 4, 2012 4:58:12 PM

Fred. Your comment makes no sense. Either something is a mess or it is not. Maybe it hinges on the definition of the word "mess" but when I think of a video tape that's a mess then that means that it is effectively unintelligible. To me saying that a video is a mess on one hand and then stating that the officer can say it accurately depicts what he witnessed are incompossible statements. If the video tape was in good enough condition that the officer could accurately interpret its contents then it wasn't a "jumbled mess". If it was a jumbled mess then he couldn't interpret it accurately.

So I guess I'd have to see the video. Maybe the court is correct and it's just a badly written opinion.

Posted by: Daniel | Sep 4, 2012 11:48:52 PM

They convicted people long before we had the camera's in cars. Now we have so many dui's. Last year 17 million admitted to dui http://zautos.com/dui-fast-facts/ and over 1.5 million were arrested.
What are we going to do?
I think we need to also go after the bars that profit from this culture

Posted by: CClark | Mar 26, 2013 4:27:58 PM

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