S.D. justices add an evidence standard

Capitol News Bureau

PIERRE, S.D. (KELO) — State judges now have direction from the South Dakota Supreme Court for admitting as evidence a photo or video taken without a camera operator present.

The Supreme Court, in a unanimous decision that was publicly released Thursday, upheld the decision by Circuit Judge Natalie Damgaard to admit the DVD recording of a December 2017 incident at the Minnehaha County Jail, where an inmate spat blood and saliva on a sergeant.

At trial, the inmate’s attorney challenged the admission of the recording that was made by an automated camera. After the inmate’s conviction, his attorney filed an appeal, arguing that the recording was inadmissible because a human operator wasn’t available to testify to its accuracy.

Justice Janine Kern wrote the court’s opinion.

“With the increasing number of automated and motion sensor cameras being used at homes and businesses, we take this opportunity to address the foundational requirements for admitting photographs and videos not recorded by a human operator,” Justice Kern stated.

“In many instances, a person cannot authenticate that an automatically recorded video fairly and accurately depicts the relevant interaction that the video recorded because the video was recorded without a human operator witnessing the event,” she continued. “However, a person’s inability to testify regarding what is depicted does not mean that the video is inaccurate—instead, it means that technology has changed to the degree that we must consider a different method through which automatically recorded video and photographs can be authenticated.”

The South Dakota justices chose to follow the “flexible, fact-based” path taken in New Hampshire and Hawaii courts rather than “a formulaic, factor-based approach to authentication” used in some other jurisdictions.

“Many recording devices do not require an operator to take photographs or video footage. If we were to require authentication testimony that the footage or photograph fairly and accurately reflects the events depicted, it would often be difficult to introduce otherwise reliable photographs and video footage obtained from unmanned cameras,” Justice Kern wrote. “Because excluding reliable, relevant evidence does not further the interests of justice… we adopt the flexible, fact-based approach to the silent witness theory of authentication.”

If a judge admits a video or photograph, she said, attorneys can use cross-examination in an attempt to affect the weight of the evidence but not the admissibility.

“The flexible, fact-based rule we adopt today permits the party offering the evidence, and the party against whom it is offered, a fair opportunity to address with the circuit court whether sufficient foundational evidence has been presented to authenticate a particular photograph or video,” Kern wrote.

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