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Video of robbery taken by private surveillance camera was properly authenticated

State v. Robert Vincent McCoy, 2012AP2583-CR, District 1, 1/7/14; court of appeals decision (not recommended for publication); case activity

An armed robbery outside a bar was caught on the security camera of a nearby homeowner, who gave a copy of the video to the police by uploading it on YouTube and emailing it to the police. The video was used to identify McCoy and then “burned” to a DVD  and played at his trial. McCoy forfeited his appellate challenges to the admissibility of the video. First, he failed to argue in the trial court that the video was not the original recording as required by § 910.02 and that chain of custody was not established. Second, while he initially objected in the trial court to the authenticity of the video, counsel ultimately indicated he had “no problem” with the way the video was authenticated–namely, by the testimony of an officer explaining how the police obtained the video and the testimony of the victim confirming its authenticity. (¶4-5, 12).

In any event, the court concludes, the video could be authenticated “by its very nature”:

¶13      …Wis. Stat. Rule 909.01 merely requires that the evidence be “sufficient to support a finding that the matter in question is what its proponent claims.” This is not a high hurdle: “Testimony of a witness with knowledge that a matter is what it is claimed to be” will suffice. See Wis. Stat. Rule 909.015(1). As we have seen, McCoy’s trial lawyer did not object to [the police officer’s] testimony as to how he got the video. Further, “[a]ppearance, contents, substance … or other distinctive characteristics, taken in conjunction with circumstances,” Rule 909.015(4), was sufficient for the jury to determine that the tape was what it purported to be: surveillance video of an ongoing robbery. (Authentication under Rule 909.015 is one of conditional relevance under Wis. Stat. Rule 901.04(2)—see the Federal Advisory Committee Note to the federal rule counterpart reprinted at 59 Wis. 2d R331–332.)

The trial court also properly admitted other-acts evidence that McCoy’s mother told the police he was “out there robbing people” in the neighborhood. Based on her statement the police asked her to view the video, and she identified McCoy as one of the robbers. (¶¶3, 5, 8-9). McCoy concedes the testimony was admitted for a proper purpose under § 904.04(2) because it shows the “context” for why the police asked her to view the video. (¶15). Instead, he claims her statement was irrelevant and unfairly prejudicial. But the concession of proper purpose makes the evidence relevant, and the court concludes it was not unfairly prejudicial, particularly in light of the limiting instruction the trial court gave the jury about the evidence. (¶¶9, 16).

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