Monday, September 19, 2011

Marijuana, Cocaine and the DVDs

As I’ve explained in earlier posts, in order to be admitted at trial, evidence must be “authenticated,” i.e., must be shown to be what it is claimed to be. This post is about an Arkansas opinion in which the appellate court addressed a convicted defendant’s argument that the trial judge abused his discretion “in admitting DVDs containing video recordings” of him “selling marijuana and cocaine to a confidential informant.” Williams v. State, 2011 WL 4067412 (Arkansas Court of Appeals 2011).

As the opinion notes, Jimmy Lee Williams was

was convicted by a Ouachita County jury of two counts of delivery of a controlled substance, marijuana; two counts of delivery of a controlled substance, cocaine; possession of drug paraphernalia; and possession of marijuana, for which he was sentenced to a total term of forty years' imprisonment. On appeal, he contends that the trial court erred in admitting the DVDs because the State failed to lay the proper foundation for their admission.

Williams v. State, supra.

As Wikipedia explains, in law a foundation is

sufficient preliminary evidence of the authenticity . . . for the admission of material material evidence in the form of exhibits. . . . Material evidence is . . .evidence that may serve to determine the outcome of a case. . . . The type of preliminary evidence necessary to lay the proper foundation depends on the form and type of . . . evidence offered.

As Wikipedia also notes, the rules of evidence that are in effect in every U.S. state and in the federal judicial system govern “whether, when, how, and for what purpose” evidence can be admitted into a judicial proceeding.

That all brings us to the Williams case. As the opinion explains, the

Ouachita County Drug Task Force, by way of the confidential informant, made four controlled buys of illegal drugs from [Williams]. On each occasion, the informant wore a hidden digital-video recorder, which recorded each transaction. On January 5, 2009, the informant purchased marijuana from [Williams]; on January 6, 2009, marijuana and cocaine were purchased; and on January 9, 2009, and February 28, 2009, cocaine was purchased.

Williams v. State, supra.

At Williams’ trial, the prosecution (“the State”) “attempted to introduce the DVDs from the four transactions, but the trial court did not allow their admission, ruling that the State failed to lay a proper foundation for the evidence.” Williams v. State, supra. The prosecution then recalled “Cameron Owens, the officer who made the DVDs from the hidden-camera recordings”. Williams v. State, supra.

Williams testified as follows:

Yesterday we talked about my video recordings on the undercover recorder. There was a video made on the undercover recorder. After I stop the recorder, and I've--It's a little digital recorder, a computer generated video file, there's a, it's on a card inside that recorder.

I take it to the computer and by a USB cable I download that file onto the hard drive of the computer which makes an exact copy of that file. And then at that time I make another digital, exact digital copy and I put it on the disk. Those are the disks that I have in front of me. The disk from January 5 is the disk that I reviewed with the informant.

Williams v. State, supra.

Owens “testified as to the same process for each recording on the four different dates of the controlled buys.” Williams v. State, supra. “Over the course of the trial,” he and the confidential informant “testified that the recordings on the DVDs were true and accurate depictions of what transpired during the drug transactions with” Williams. Williams v. State, supra.

The trial court judge then admitted “all four DVDs” into evidence over Williams’ objection that the prosecution had not laid the foundation required by Rule 901 of the Arkansas Rules of Evidence. Williams v. State, supra. As I noted earlier, after being convicted, Williams appealed, arguing that the trial judge erred.

The Court of Appeals began its analysis of his argument by noting that Arkansas Rule of Evidence 901(a) “provides that the `requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.’” Williams v. State, supra. It also pointed out that an

example of authentication or identification that conforms with the requirements of this rule includes testimony of a witness with knowledge that a matter is what it is claimed to be. Arkansas Rule of Evidence 901(b)(1). Authentication may also be shown by evidence describing a process or system used to produce a result and showing the process or system produces an accurate result. Arkansas Rule of Evidence 901(b)(9).

Williams v. State, supra.

The court then explained that both Williams and the prosecution agreed that

the same requirements for admissibility of photographs apply to videotapes and that this court reviews a court's determination on admissibility for an abuse of discretion. . . . [Williams] contends, however, that videotapes present a unique opportunity for editing and that the burden of authentication should be more demanding. Because [he] failed to argue below that the burden of authentication should be more demanding for videotaped evidence, he is barred from asserting it for the first time on appeal.

Williams v. State, supra. I wish he’d raised it at the trial court level; it would have been interesting to see how this court resolved the issue.

That brings us to what Williams was able to argue on appeal. He claimed that

the State failed to lay a proper foundation for the admission of the DVDs because it failed to show that the DVDs at trial were the videos reviewed by the informant. [Williams] points to an objection raised after the confidential informant's testimony and the State's attempt to have the DVDs admitted.

The trial court sustained [his] objection to the admission of the DVD after the witness testified that he reviewed the video and that it was a true and accurate depiction of all the events that happened during the first transaction.

Williams v. State, supra. The Court of Appeals then noted that, as we saw above, after the prosecution recalled Owens and he testified “about how he had placed the hidden camera on the informant and the procedure used to make the DVDs,” the trial judge admitted the evidence. Williams v. State, supra.

On appeal, Williams argued that the judge erred because

despite the officer's testimony that the informant reviewed the videotapes, there is nothing in the record indicating that the informant reviewed these specific DVDs or that they reflected the transactions that had occurred. [Williams] claims that had the informant truly reviewed the videotapes as alleged he would have been able to recall specifics of the transactions that he was unable to recall when questioned at trial.

Williams v. State, supra.

The Court of Appeals did not agree:

[Williams’] argument is without merit because the State offered testimony from two witnesses with knowledge of the DVDs and transactions, as well as testimony describing the process used to create the DVDs. Officer Owens and the informant testified that they did not tamper with the camera or recordings, that they reviewed each DVD, and that the DVDs were fair and accurate depictions of what transpired during the drug buys. . . .

Moreover, Officer Owens identified the DVDs in court as the ones that he had specifically made from the recordings. He testified about the process of placing the recordings on the DVDs. His testimony was sufficient to authenticate the DVDs and establish that they were accurate copies of the recordings of appellant's drug transactions. . . .

Further, Officer Owens testified that he reviewed the videos with the informant, and the informant testified that he reviewed the DVDs that were before the court. Because . . .were satisfied, the trial court did not abuse its discretion in admitting the evidence.

Williams v. State, supra.

The Court of Appeals therefore affirmed Williams’ conviction. Williams v. State, supra.

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