Brief Fact Summary. Arthur Wagner, III (Appellant) was convicted of one court of sale of cocaine and two counts of sale of cocaine within 1000 feet of a school. At Appellant’s trial, a videotape was allowed into evidence, which showed Appellant handing an informant something in exchange for money. Appellant appeals his conviction here, arguing that the videotape evidence was improperly admitted.
Synopsis of Rule of Law. Videotape and photographic evidence is admissible under the “silent witness” theory when the reliability of the process used to create the evidence is proved, and when the trial judge determines the evidence to be reliable.
Issue. At Appellant’s trial for various counts of sale of cocaine and sale of cocaine within 1000 feet of a school, did the lower court error by admitting into evidence a videotape of the alleged drug buys?
Held. No; the videotape was admissible under the “silent witness” theory, which allows videotape evidence to be admitted, so long as there is proof of the reliability of the process that produced the videotape evidence.
Concurrence. Justices Webster and Schemer concurred in the judgment, but did not write separately.
Discussion. The court pointed out that all videotape evidence is admissible under the “pictorial testimony” theory, but then went on to hold that videotape evidence is also admissible under the “silent witness” theory. Under the “silent witness” theory, the court held, when a trial judge finds the evidence to be reliable, it is admissible. The court pointed out that the trial judge should look to five factors in making such a determination, namely:
(1) evidence establishing the time and date of the photographic evidence;
(2) any evidence of editing or tampering;
(3) the operating condition and capability of the equipment producing the photographic evidence as it relates to the accuracy and reliability of the photographic product;
(4) the procedure employed as it relates to the preparation, testing, operation, and security of the equipment used to produce the photographic product, including the security of the product itself; and
(5) testimony identifying the relevant participants depicted in the photographic evidence.
The court concluded that if, after examining these five factors, the court find the evidence to be reliable, then such evidence is admissible.