Surveillance Videos Aren't all that Technical, says ICA
State v. Luke (ICA April 17, 2020)
Background. Alik Luke was tried for attempted burglary in the first degree, burglary in the first degree, and unauthorized possession of confidential personal information. The charges stem from the break-in of two residences: the Yamamotos and a residence occupied by Kyle Shimoda. At trial, the prosecution wanted to surveillance footage from the Yamamotos’ surveillance cameras which allegedly revealed Luke in the backyard and footage from Shimoda showing a person entering the property and leaving with a suitcase. Luke was also arrested and told the police that he did not know anything about the suitcase, just saw a battery in a backyard, and “something about cousin Jeff at a storage locker.” The circuit court determined this statement was inadmissible at trial.
At trial, Yamamoto testified that he and his wife are the only ones with access to the recorded data on his video surveillance cameras. They can access it from either their computer or mobile devices. Yamamoto testified the security system has a date-stamp that synchronizes with the time and does not require daily maintenance. He testified it had never given him problems and has never had to call anyone to repair the video system. The prosecution, based on that foundation, moved to admit the footage. Luke objected based on a lack of foundation pursuant to State v. Manewa, 115 Hawai'i 343, 167 P.3d 336 (2007) and State v. Assaye, 121 Hawai'i 204, 216 P.3d 1227 (2009).
The Hon. Judge Rom Trader of the circuit court sustained the objection. The prosecution kept trying, but the objections were sustained. The prosecutor asked for a hearing out of the presence of the jury to lay the foundation. Yamamoto testified he personal knowledge that his security system was operating and performing properly on the day of the recording. Before that day, he received email notifications from his security system indicating it was working properly and the emailed notification showed an image of an unidentified person in the backyard that is consistent with his own inspection. He also testified that he provided a copy of the video to the Honolulu Police Department and that the contents of the video in the prosecution’s exhibit were accurate. On cross-examination, Yamamoto admitted he was not employed by the manufacturer and not a technician trained in using the system. he said the system was a consumer-level device and it had never been calibrated by a professional. At the end of the hearing, the circuit court distinguished this foundation with Manewa and admitted the exhibit because it was adequately reliable. The video was published to the jury.
The prosecution tried to establish a similar foundation for Shimoda. Shimoda testified that the camera had some maintenance problems in the past, but it appeared to be working fine on the day at issue. The circuit court sustained the objection for lack of foundation.
In his closing argument, Luke argued there was mere circumstantial evidence of a burglary and urged an acquittal. The prosecutor, in his rebuttal, argued that the failure to investigate “cousin Jeff” was a red herring:
The puka, [Luke’s] trying to create for you. What do I mean by that? Let me be more specific. Where do we hear about cousin Jeff? We hear about cousin Jeff from who? This guy.
Luke immediately objected and moved for a mistrial based on a violation of the pretrial ruling on Luke’s statement to the police. The circuit court granted the motion for mistrial. Luke later filed a motion to dismiss with prejudice based on the prosecutorial misconduct. The motion was granted, and the prosecution appealed.
Establishing Foundation for Consumer-Level Surveillance Videos Shouldn’t be that hard. The ICA held that the circuit court erred in excluding the Shimoda video. “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.” HRE Rule 901(a). Two illustrations include testimony of a witness with knowledge—“testimony that a matter is what it is claimed to be”; and “[e]vidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.” HRE Rule 901(b)(1) & (9).
The ICA held that photographic or video evidence can be authenticated through testimony showing that evidence correctly represents regardless of any technical details. In doing so, the ICA adopted from other jurisdictions the “silent witness” theory for the admission of video or photographs where there is no first-hand witness of the event or matter captured on the video or photograph:
When presented with authentication challenges to the admissibility of video tapes or other recordings, courts have typically admitted such evidence on one of two grounds. First, courts admit such evidence when it is introduced to illustrate the testimony of a witness who observed the same scene viewed by the recording equipment. Second, where there is no first-hand witness, courts have adopted the “silent witness” theory to admit video recordings. The “silent witness” theory allows for the introduction of the recording as primary, substantive evidence of the events depicted. Under this theory, a witness need not testify to the accurate of the image depicted in the photographic or videotape evidence if the accuracy of the process that produced the evidence is established with an adequate foundation. In such a case, the evidence is received as a so-called silent witness or as a witness which speaks for itself.
State v. Stangle, 97 A.3d 634, 637 (N.H. 2014). The ICA not only adopted this theory, but held that it should be a “flexible approach” and that “adequate foundational facts must be presented tot eh trial court, so that the trial court can determine that the trier of fact can reasonably infer that the subject matter is what its proponent claims.” Id. at 638. Attacking the method of storing and reproducing the video and the surveillance procedures can be brought out on cross-examination, but that should go to the weight of the evidence, not its admissibility. Id. at 639. The ICA reasoned that this less-than-technical test is consistent with the general rule in HRE Rule 901(a). And so, the ICA held that the circuit court erred in sustaining the defense objections to the Shimoda video.
“Silent Witnesses” Need no Personal Knowledge. According to the ICA, the fact that Shimoda lacked personal knowledge of the events that were recorded and the fact that he lacked technical knowledge about how his camera system worked didn’t matter. The ICA held that the court should have admitted the Shimoda video.
Regular-Kine Technical v. “Highly Technical”: A Difficult Distinction. In a footnote, the ICA distinguished the foundational requirements here with those described in Manewa and Assaye. The latter “dealt with highly technical measuring instruments” and were not based on HRE Rule 901. This apparently is something different.
It is difficult to ascertain what is “highly technical.” A camera system synced with a mobile device and time stamped certainly is technical and certainly measures things, but that is not “highly technical” like the analytic scale in Manewa or the laser gun measuring speed in Assaye. Perhaps this case is an easy call. Home security systems aren’t highly technical. But further litigation will eventually present itself where the dividing line between “highly technical” and just plain technical gets harder and harder to draw.
The Erroneous Evidentiary Ruling’s Effect on the Dismissal With Prejudice. The ICA moved on to examine the dismissal. Because the analysis in dismissing with prejudice was so intertwined with the ruling on the foundation for the videos, the ICA held that dismissal with prejudice was also in error. See State v. Deedy, 141 Hawai'i 208, 407 P.3d 164 (2017) and State v. Moriwake, 65 Haw. 47, 647 P.2d 705 (1982). The ICA remanded the case to the trial court to re-examine whether to dismiss with or without prejudice in light of the fact that “any perceived unfairness caused to Luke from a retrial is not as severe  because there was sufficient evidence presented by the State” to admit the videos.