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….

-CM