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Wagner v. State

Citation. Wagner v. State, 282 Ga. 149, 646 S.E.2d 676, 2007 Fulton County D. Rep. 1814 (Ga. June 11, 2007)
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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.


Officer Duncan (Duncan) and an informant made purchases of crack cocaine from a vehicle that was equipped with a video camera; the purchases were made by the informant from the driver’s side of the vehicle.
Informant, and the vehicle, were searched prior to the operation, and no contraband was found. A camera was then mounted in the vehicle, and Duncan sent the informant to make the purchases. Informant made three separate purchases, all from Appellant. The camera recorded informant being handed something by Appellant and informant handing Appellant money.
Informant returned and presented Duncan with crack cocaine. The process was repeated twice, for a total of three purchases. Following the purchases, the vehicle and informant were again searched, and no contraband was found.
At trial, the jury was able to view the video, but was not permitted to hear the audio of the purchases. The jury found Appellant guilty, and sentenced him to a total of 180 years in prison.


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?


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.


Justices Webster and Schemer concurred in the judgment, but did not write separately.


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.

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