EvidenceProf Blog

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

Thursday, January 13, 2022

Supreme Court of South Dakota Adopts the Silent Witness Theory of Authentication

Similar to its federal counterpart, South Dakota Rule of Evidence 19-19-901(b)(9) provides that

The following are examples only--not a complete list--of evidence that satisfies the [authentication] requirement:

(9)    Evidence about a process or system. Evidence describing a process or system and showing that it produces an accurate result.

Many courts use Rule 901(b)(9) to allow for the silent witness theory of authentication. One of those courts is now the Supreme Court of South Dakota.

In State v. Reeves, 967 N.W.2d 144 (S.D. 2021), Aaron Reeves was convicted and sentenced for assault by a jail inmate - contact with bodily fluids, simple assault against an inmate, and threatening a law enforcement officer. After he was convicted, Reeves appealed, claiming that the circuit court abused its discretion in admitting the jail's surveillance video of the assault "because proper foundation was not laid to authenticate." 

According to the court,

We have not previously addressed the foundational requirements for admitting video footage under SDCL 19-19-901(a) when a human operator is not available to testify to the accuracy of the scene depicted in the video....With the increasing number of automated and motion sensor cameras being used at homes and businesses, we take this opportunity to address the foundational requirements for admitting photographs and videos not recorded by a human operator. In many instances, a person cannot authenticate that an automatically recorded video fairly and accurately depicts the relevant interaction that the video recorded because the video was recorded without a human operator witnessing the event. However, a person's inability to testify regarding what is depicted does not mean that the video is inaccurate—instead, it means that technology has changed to the degree that we must consider a different method through which automatically recorded video and photographs can be authenticated. 

Under the traditional theory underlying authentication of photographic or video evidence, the photograph or video is viewed as “merely illustrative of a witness’ testimony,” and the evidence “only becomes admissible when a sponsoring witness can testify that it is a fair and accurate representation of the subject matter, based on that witness’ personal observation.”...In contrast, under the silent witness theory, a photograph or video is “a silent witness which speaks for itself, and is substantive evidence of what *149 it portrays independent of a sponsoring witness.”...Through the silent witness theory, “recordings such as a tape from an automatic surveillance camera can be authenticated as the accurate product of an automated process, satisfying the foundation required by Federal Rule of Evidence 901(b)(9).”...SDCL 19-19-901(b)(9) is identical to Federal Rule of Evidence 901(b)(9), which provides that evidence may be authenticated by “[e]vidence describing a process or system and showing that it produces an accurate result.”

The court then adopted a version of this silent witness theory, holding " that to authenticate a photograph or video under the silent witness theory, the proponent must present sufficient foundational facts to the circuit court so that the court, in its discretion, 'can determine that the trier of fact can reasonably infer that the subject matter is what its proponent claims.'"



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