Texas Stamp

State Prosecuting Attorney's 2017 Annual Report for Judicial Support Agencies, Boards, and Commissions

FOWLER, JAMEL McLELLAND

PD-0343-17 09/27/2017

“May the proponent of a video sufficiently prove its authenticity without the testimony of someone who either witnessed what the video depicts or is familiar with the functioning of the recording device?”

Fowler was found guilty of theft of an all-terrain vehicle (ATV) based in large part on a video showing him making a purchase memorialized by a receipt found near the recovered ATV. The trial court admitted the video—a camcorder recording police made of the store’s security system playback—because the date/time stamp on the store’s monitor matched the date and time on the receipt. While an officer testified to their recording, no one from the store did.

The court of appeals reversed because, in its view, “there was no evidence that the surveillance system was working properly on the date in question, that its on-screen clock was correctly set and functioning properly, or that the original accurately portrayed the events that purportedly occurred at the time and on the date shown in the video recording.”

The State argues that authentication is a fluid inquiry and that the surrounding circumstances make the video admissible without anyone testifying about the store’s video system.  The court of appeals conceded that it depicts someone who looks like Fowler buying the item on the receipt. When combined with the fact that the date and time on the receipt match those on the video, there was ample evidence for the trial court to allow the jury to determine whether the video is what the State claimed it to be.

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