By: Adam L. Bantner, II, Board Certified Criminal Trial Attorney
In modern society, it is not uncommon for people’s actions to be recorded either with or without their knowledge. License plate readers, red light cameras, public space cameras purchased by local, state and federal agencies, bus and taxi cab videos, police body cameras, and the cell phones of millions of individuals all have the capability to record portions of our lives. As such, criminal practitioners (and trial attorneys in general) must be familiar with the foundational requirements for admission of such evidence. This article will attempt to cover the basics of video evidence admissibility.
As an initial consideration, the recording must be relevant. Fla. Stat. § 90.401 defines relevant evidence as “evidence tending to prove or disprove a material fact.”  In order to meet this burden, the proponent of the evidence must simply identify the fact for which it is offered to prove and that fact must be relevant to the litigation. For example, a convenience store video depicting the commission of a robbery may be relevant because it tends to prove the identity of the perpetrator as the defendant. This is the simple part and, in my experience, is usually not challenged.
Second, videos are admissible on the same basis as still photographs. In other words, the proponent of the video must lay a foundation that the video fairly and accurately represents a material fact or issue. A common misconception is that the person who took the video must testify in order for it to be admissible; this is simply incorrect. While the person that took the video will certainly have the ability to testify that it fairly and accurately depicts the events that were captured, anyone who witnessed the events recorded have the competency to lay the foundation for the recordings admission into evidence. In H.A. v. State, the drugstore employee authenticated the surveillance video. This method of introducing such evidence is known as the “pictorial testimony” theory of admissibility.
Additionally, video evidence may be admissible under the “silent witness” theory. Under this theory, the evidence may be admitted when the trial court finds it reliable, after having considered the following:
(1) evidence establishing the time and date of the photographic evidence;
(2) any evidence of editing or tampering;
(3) the operating condition and capability of the equipment producing the photographic evidence as it relates to the accuracy and reliability of the photographic product;
(4) the procedure employed as it relates to the preparation, testing, operation, and security of the equipment used to produce the photographic product, including the security of the product itself; and
(5) testimony identifying the relevant participants depicted in the photographic evidence.
In Lerner v. Halegua, the proponent of video failed to meet its burden under either theory. In Lerner, Mr. Halegua argued that surveillance video depicting Mr. Lerner spreading bullets outside of the door to a Mr. Winston’s condominium should be admitted under either theory. However, the court found and held:
Mr. Winston did not personally observe the events depicted on the surveillance videos or the photos. The record here reflects that Mr. Winston had no responsibility for the operation, placement, or maintenance of the videocamera in question, and he had no direct knowledge regarding the procedure for retrieving or copying those portions of a video record that might be pertinent to the investigation at issue here.
In the absence of the photos admitted over Mr. Lerner’s objection, the evidence at the hearing in the civil case fell short of the “clear and convincing” showing necessary to support the dismissal of Lerner’s claims and defenses for fraudulent or unconscionable litigation misconduct.
In conclusion, the admission of video evidence is relatively simple. If there is a witness that observed the events recorded, simply lay the foundation through that witness. If there is not such an eyewitness, you can still admit the evidence under the “silent witness” theory by establishing the relevance and reliability of the video using the factors indicated in Wagner.
 Fla. Stat. § 90.401 (2016)
 Charles W. Ehrhardt, Florida Evidence (2009), Section 401.3
 H.A. v. State, 24 So.3d 752 (Fla. 3d DCA 2009)
 Wagner v. State, 707 So.2d 827, 829 (Fla. 1st DCA 1998)
 Id. at 831
 Lerner v. Halegua, 154 So.3d 445 (Fla. 3d DCA 2014)
 Winston was not directly involved with the litigation between Mr. Lerner and Mr. Halegua.
 Id. at 447-48.
 Wagner v. State, 707 So.2d 827, 831 (Fla. 1st DCA 1998)