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Foundation — Videotape — Same Requirement as Still Photo — Expert Unnecessary

State v. William R. Peterson, 222 Wis. 2d 449, 588 N.W.2d 84 (Ct. App. 1998)
For Peterson: Donna L. Hintze, SPD, Madison Appellate


The State provides no authority to support the trial court’s imposition of a requirement that, as a matter of law, expert testimony is necessary to establish a foundation for video images, and we are aware of none. Wisconsin case law does not impose such a requirement for the admission of still photographs. In State v. Sarinske, 91 Wis.2d 14, 44, 280 N.W.2d 725, 739 (1979), the court held that for still photographs, the photographer’s testimony that the pictures accurately portray what they purport to portray is a sufficient foundation under §§ 909.01 and 909.015(1), Stats. …We see no reason to require a more stringent foundation for videotapes than photographs. …

A second reason the trial court determined that the foundation for the videotape was inadequate was the judge’s opinion that, based on his personal experience on the river at night, “you can certainly see a lot more than that video represents.” …

A trial court sitting as fact-finder6 may derive inferences from the testimony and take judicial notice of a fact that is not subject to reasonable dispute,7 but it may not establish as an adjudicative fact that which is known to the judge as an individual. Hoeft v. Friedli, 164 Wis.2d 178, 189, 473 N.W.2d 604, 607-08 (Ct. App. 1991). … We conclude that the court erroneously exercised its discretion in doing so.


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