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Evidence: Photos and Videos Admissible Under "Silent Witness" Theory
Posted in Litigation

Tuesday, the Indiana Court of Appeals explained the manner in which photographic evidence that must speak for itself may be admitted under the “silent witness” theory. 

In Rogers v. State, the defendant challenged his conviction for theft of property from a CVS store.  Although no one saw the incident, or could testify that the defendant took anything from the CVS store, the Indiana Court of Appeals agreed with the trial court that surveillance camera footage (even though redacted), and snapshots created from that redacted footage, could serve as a “silent witness” to the crime.

After observing the general rule that photographs and videotapes are treated as demonstrative evidence only, the Court held that substantive photographic evidence may be admitted if there is a “strong showing of authenticity and competency.”  To meet this burden, there must be evidence regarding how and when the image-taking device was loaded and activated, when the images were taken, the processing and chain of custody for the electronic data and/or film, and proof that the image and/or data was accurate and had not been altered. 

The Court of Appeals concluded that because a witness could testify that the images fairly and accurately depicted the scene, the redacted camera footage and select snapshot images were admissible as evidence under the “silent witness” theory.

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