Photographs / Audio / Videos

The previous section dealt with the accuracy of objects. In this section, we review the law related to the accuracy of photographs, audrio recordings and video recordings.

Photographs: Charles Haas was convicted of the murder of a sixty-seven year old woman, and sentenced to 70 years confinement.  Among the evidence introduced against him and over his objections was a picture of a fingerprint taken from electrical tape used to bind the victim’s feet, admitted through the non-photographing chemist, later determined to match the defendant and a picture of the victim’s hands bound with black electrical tape. First, Haas confirms the rule that if a photograph is identified by a witness with personal knowledge as an accurate portrayal of the scene or item, the photograph is admissible so long as it was lawfully obtained (Step 3) and relevant (Step 4). The rule has been a longstanding one in Texas, predating the formalized Rules of Evidence. In Housewright v. State,  225 S.W.2d 417, 418 (Tex. Crim. App. 1949) the Court allowed the admission of a "moving picture film" of the defendant being placed in jail since the motion picture is "but a collection of photographs and subject to the proof of being a true portrayal of the objects shown…Of course, the pictures should be identified as correctly portraying the scene, and thus identified, we think they were admissible." Second, a picture is not inadmissible merely because it is gruesome unless it is offered solely to inflame the minds of the jury.  We can see from Haas the process the Court used in determining the admissibility of the picture: it is 1) sponsored by a witness with proper knowledge, 2) accurate and 3) relevant. 

Audio Recordings: Robert Angleton was arrested for the capital murder of his wife.  A Detective recovered a tape recorded conversation in the defendant’s briefcase.  In the conversation, two men planned a murder, including disarming a house alarm using the code 00032.  Based on conversations the Detective had with the two men, the Detective recognized the voices as the Defendant’s and his brother’s.   Further, the defendant said in a police statement that 00032 was the code for his home.  The detective had a specialist enhance the audio to reduce the background noise and make the conversation more audible.  The detective didn’t do the enhancement, and had no knowledge of how the tape was enhanced.  The court ruled that the tape was properly authenticated under Rule 901(b) because according to the witness with proper knowledge - the Detective - testified that 1) the “enhanced copy” accurately depicted the contents of the original tape (“Testimony that a matter is what it is claimed to be,” 901(b)(1)); 2) the voices on the tape were identified as the defendant and his brother (“voice identification,” 901(b)(5)); and 3) the recording was an unaltered continuous conversation  (“distinctive characteristics taken in conjunction with circumstances,” 901(b)(4)).  Some of those “circumstances” included the fact that the alarm code was a unique piece of evidence not casually shared, and that the tape was recovered in the Defendant’s brother’s possession. “The State offered the audio tape as an accurate copy of a recording of a conversation between appellant and his brother Roger. The authentication requirements of Rule 901 would be satisfied by evidence sufficient to support a finding to that effect. Thus, in this case the authentication question has three parts: (1) whether the ‘enhanced’ copy accurately depicts the contents of the original tape, (2) whether the voices on the tape are those of Roger and appellant, and (3) whether the depiction of the conversation on the tape as a continuous conversation between the participants is accurate (i.e. the conversation on the tape is not the result of splicing or some other alteration). Federal courts addressing the issue have consistently held that the government does not have to prove when, where, how, and by whom tape recordings were made, when those recordings were recovered from the defendant or an alleged co-defendant, were not created as a result of government involvement, were not tampered with, and the defendant is identified as a speaker on the tape...In the present case, Officer Quam identified State's Exhibit 12 as the disc containing digital recordings of telephone calls appellant made. Using this exhibit, Bishop demonstrated how the recording system authenticates the accuracy of a digitally recorded inmate telephone call." Finally, as you will read in he Banargent case, the proponent does not need to identify both voices to properly authenticate the digital recording.

Videos: Jamel Fowler was convicted of stealing a Kawasaki Mule ATV and sentenced to two years confinement.  The complainant reported to police that the Mule had been stolen from property he owned in Hunt County.  About a month later, the Mule was discovered in an open field.  On the ground three feet from the Mule, officers discovered a date- and time-stamped paper receipt from a Family Dollar Store.  Following the lead from the receipt, Officers went to the Family Dollar store and asked the store manager to pull the store surveillance video from the listed date and time. Since the video format prohibited copying, the officers used a camera to record a copy of the surveillance video as it played on the stores’ monitor.  According to the State’s proffer, the video showed the Defendant entering the store and purchasing the items that were listed on the receipt recovered by the Mule.  At trial, the State introduced the “recording of the recording” into evidence over the Defense’s objection.  The Court of Criminal Appeals held that the proponent of a video may sufficiently prove authenticity without the testimony of someone who either witnessed what the video depicts or is familiar with the functioning of the recording device. The Court confirmed the longstanding rule that video recordings without audio are treated as photographs and are properly authenticated when it can be proved that the images “accurately represent the scene in question and are relevant to a disputed issue.”  The court found the videos to be authentic because of the “circumstantial evidence” (901(b)(4)) consisting of the in-person request by the testifying officer at the store for video that matched the date- and time-stamp, the distinctive characteristic of the date and time stamp on the recording, the fact that the date and time stamp matched the receipt located near the Mule, and that the recording showed Fowler at the store.