first case on the call of the year docket today wednesday mail in two thousand women whose gender number five case number one one zero zero six seven people versus taylor i see  please the court my name is recess staats i'm with the office of the illinois attorney general and i represent the people of the state of illinois the appellate court made three significant errors in vacating the trial court's judgment first the court applied the wrong authentication standard to the admission of the surveillance tape second the court ignored the fact that the defendant had failed to raise objections to the chain of custody and to the use of a duplicate instead of the original at trial appellate court ignored the trial court's findings regarding defendant's confessions in concluding that the admission of the tape was not harmless i'll start with the authentication standard but the appellate court did was to create a checklist for admitting video recordings where there is no eyewitness that checklist required the proponent to show a proper chain of custody to show that the device that produced the recording was operating properly in every respect and that the original recording had been preserved according to the appellate courts rule if any single item on this checklist is not satisfied then the recording must be excluded the checklist rule that the appellate court created is wrong first of all there is no support in illinois law for this rule neither the appellate court nor the defendant has been able to identify any illinois precedent for the checklist there are no prior illinois cases that exclude a video recording simply because the proponent cannot satisfy item on the checklist the cases the appellate court cited held only that satisfying items on the checklist are sufficient to authenticate a video but not that they are necessary not only is a checklist rule unsupported by illinois law it's actually directly contrary to some of the skate court's prior cases in the child pornography cases of normand and phillips in particular which are cited in our opening brief i want to example of how the checklist rules contradictory to illinois law in those cases the defendants made an argument very similar to the one defendant is making here they said the existence of technology that makes it possible to fake evidence requires a higher authentication standard specifically the argument in those cases was that there was technology that made it possible to create fake child pornography using a computer generated virtual child instead of a real child this court rejected that argument and said there's no need for expert testimony or additional foundation evidence beyond the images themselves the images themselves were held to be self authenticating and the fact finder was deemed perfectly capable of determining from the images themselves whether the children depicted in the images were real the whole thing in those cases showed two things first they show the appellate courts assumption was wrong you don't need specialized foundation evidence simply because technology did exist that makes it possible to fake ing issue in the chain of custody the first point is that both of those objections were forfeited by the defendant in the trial court he did not raise an objection on either basis actually i take defendant's brief in this case to be conceding that showed that the original recording was a digital recording and then what was introduced in court was a v h s tape obviously a different format also the defendant had in his police report prior to trial that explained how this was done it's true he didn't explain how if you copy a a vigil a digital recording to v h s but copies are introduced all the time say a duplicate of a document xerox and parties don't have to you know bring in an expert to explain how it is iraq's machine works if the other party isn't making an issue of it it's sufficient to say this is a copy and that's what happened here the police report which was evidence before the trial court says this is a copy of the r not only that it says detective and says i broke off the tabs on the on the tape meaning it couldn't possibly be tampered with or overridden and then i locked it in my desk drawer so even without defendant raising the issue we had plenty of evidence in the in the record regarding chain of custody may i ask you just to clarify that issue but the record how is the police record evidence the defendant attached it to a pretrial motion in limine e so i'm not saying that the was evidence that the trial judge could consider in making the preliminary determination of whether to admit another piece of evidence at trial and then the rules of evidence make clear that there's a distinction here if you're admitting evidence at trial the rules govern and you can only get the evidence and if it passes the rules if all you're trying to do is make a preliminary determination they way you might at a at a hearing on a motion in limine a or motion to suppress the court can look at other evidence even if it doesn't satisfy the rules of evidence so you can look at hearsay like and who is report and and consider that in deciding whether to admit other evidence so i don't know what it means to say that it wasn't in evidence but if the point is that it wasn't in evidence  trial and it wasn't evidence of guilt that's correct but it was evidence the trial court could consider in determining whether to admit other evidence namely the tape and and the the court specifically acknowledged the police report so there's no reason to think the court they do because all those rules do is how to fly the previously existing illinois evidence law and i've cited to them because i think it makes the issues clearer in this case and it's easier to see how all the th court's prior decisions work together it also is helpful because it's easy to find cases from other jurisdictions to see how they've handled it because the rules that this courts now adopted are identical to the federal rules in almost every respect and in all all relevant respects  and a number of other courts so and i don't take defendant to be saying that these rules shouldn't apply that would make no more sense than saying this court's prior cases on the admission of evidence shouldn't apply the rules just codified prior law so there's no change there's no retroactivity problem counsel do you agree that a foundation required for recording made by an unmanned surveillance camera the so called silent witness is different from the foundation required want to witness can testify from personal know the foundation for admitting any item of real evidence whether it's a video recording whether or not there's a and eye witness to that video recording whether it's a document whether it's a photograph the standard is the same for every type of evidence and that's not forth in rule nine zero one the question is is there evidence sufficient to support a finding  the evidence is what the proponent claims it to be so you know no one makes it clear the standard doesn't vary based on the type of evidence so that's one way the appellate court's checklist approach was wrong and i know one also makes it clear that this universal admissibility standard doesn't involve any items on the checklist instead the rule says there are a number of ways you can get to get it to meet your authentication burden so i witness testimony is one  way evidence of the system that produced the evidence is another way and what you do is you take into account all of the evidence and if it meets the threshold than the item of evidence comes in no one also makes it clear that the authentication standard is lower than the appellate court seem to think it doesn't require conclusive proof of authenticity it just requires evidence sufficient to support a finding in other words a preponderance of the evidence something more than a fifty percent probability that the evidence is real once that minimal threshold is met the evidence comes in and any further question about how much weight the evidence should get or whether it is in fact real is and is a question for the tr fact you know under under the old but i was more familiar with them practicing what a picture was taken it was fake and then there was no compromising or changing it with digital cameras and what but what jay leno does on t tape is going to be admitted of showing that there has has not been any tampering with it is that burden on the state to show that or is that burden on the defendant in this case to raise an issue in and indicate that there may have been some fam burden is always on the proponent of evidence of the evidence to prove by a preponderance that the evidence is authentic in other words that it is what the proponent claims so there's two mutually exclusive possibilities either the evidence is real it's authentic it's what the proponent claims or on the other hand it's fake it's tampered it's altered it's inauthentic so those are mutually exclusive and they vary inversely so the more evidence of authenticity the less probability of  h tampering so what the proponent has to do is get the evidence up to more than fifty percent probability that it's real that means it comes in now if there's evidence on the other side suggesting that it's fake tampered in that automatically pushes down the probability of real mr authenticity and it's a case by case approach it will turn on all the evidence it's not a question of burden although although it is the components burden to keep it above fifty percent but if the if the evidence of tampering is such that it pushes the probability of authenticity to fifty percent or less than the evidence is out but anywhere in that area in between if it's more than fifty percent authentic and there's maybe some evidence of tampering it comes in and it's a question for the jury oh and to the point about the technology that makes it possible to  to fake images that technology that's something that can be said of all evidence any evidence can be faked and it doesn't always require a lot of technology a document for instance can easily be faked or tampered with with some white out an photocopier you know photographs could be faked even before they were digital witness testimony can be faked as it can be the witnesses could be lying but there isn't a different standard you know based on it's not enough for the opponent just to say this might be fake therefore i demand more what's going to make a difference is if there is evidence and here the defendant didn't have any evidence of tampering the state had a lot of evidence of authenticity and all he had was a theory he said thirty seconds is missing maybe someone deleted it well that's possible but there was no evidence to support it in the trial court looked at that very carefully the trial court reviewed the tape and it grilled detective and then about how the motion sensor worked and it found as a matter of fact that the thirty seconds had not been deleted it was simply never recorded at all due to the limitations of the motion sensor and the nature of the defendant's movements i would encourage the court to review the tape because i think it strongly supports the trial court's finding on that so that's a factual finding that the thirty seconds were not deleted that was the only specific tampering theory different raised in the trial court and that was rejected and he hasn't challenged it  just to get back to my point about the child pornography cases how they show that the checklist rule is wrong in those cases there was no eyewitness to the activity on the recordings there was no evidence that  the equipment used to produce the recordings was functioning properly and of course there was no chain of custody and this court held that the images were still admissible not only that they were deemed sufficient to prove beyond a reasonable doubt that the children were real children and not fake children finally the checklist approach is wrong because it's contrary to logic it gives controlling weight to an irrelevant factor and yet it completely ignores the highly probative evidence of authenticity defendant's case and is an excellent example of the rules faulty logic so here the appellate court held that the camera's motion sensor had malfunctioned and since the proper operation of the rig was an item on the court checklist and said any malfunction it means the evidence is out but that malfunction even assuming it occurred was completely irrelevant to the raw liability of the footage that was recorded excluding the tape on this basis makes no more sense than excluding a recording because for example the equipment was supposed to record in color but instead recorded in black and white it's a malfunction it doesn't make a difference in reliability we have the appellate courts checklist approach that he confessed twice to doing the exact crime he is seeing committing on the tape makes it virtually impossible that the tape is not real and the court appeared to recognize that because it's said other explanations for the tape are implausible and yet apparently because the confession didn't factor into the checklist the court completely ignored that powerful evidence of authenticity so any approach that it gives controlling weight to relevant evidence relevant factors and y completely ignores a highly relevant factor such as the fact that the defendant has confessed to doing exactly what he seen doing on a recording is contrary to logic and it can't possibly be right so for all these reasons this court should not apply the checklist that the admission of the tape was error and it wasn't but if it had been the appellate court should have found that the error was harmless the defendant had twice confessed to the stuff and the trial court specifically found that those that the testimony about those confessions was credible there was the testimony of paul macone about defendant's confession to school officials and then there was testimony from detective annan that two weeks later defendant also confessed to the same crime to him  to this very same fact a mistake yes according to the van and testimony and not on other occasions correct the trial court specifically found both of those witnesses credible and specifically found the defendant had confessed to the theft given those findings there is no reasonable probability that the trial court would have acquitted the defendant even without the tape and along those notes i along those lines i would note that it the reasonable probability of a different outcome is the court my name is jack hildebrand and i'm representing mr taylor in this matter the star off it's not our position that this tape could never be authenticated by the state it could have been but it wasn't not on the facts in this case as they could have brought in the original recording or the original recording isn't that in the system itself isn't it reading the facts the detective and then if that's how it's pronounced installed a motion activated d v r in the high school principal's office correct i mean well i guess i got it from that if it was specially installed it wasn't part into the computer yes he said that if fed into a d v r but the general recorder and that's what he says he viewed he viewed the digital recording use a monitor that he brought over there  that's the only way he you can view it and there's no reason why this could it have been brought in the court says is easy as a video is easier than a video tape you just take the file with you to court and write it on a monitor this this opens up the door for these this type of evidence to come in it's important evidence surveillance cameras are all over right now and that those surveillance cameras are going to pick up screen we probed of information that should be i'm suggesting that a reasonable list that is tailored to the evidence that's being offered be followed when there is no witness to if it's the recordings such as th cement i think you have to apply it to the facts of the case in this case we don't even know if irrelevant stuff was taken out we don't know what happened in those white why it was  time do we know that it actually was chopped up yes reflect yes and the detective there's gaps of time but does it mean it actually was chopped up your opposing counsel said that it was a gap of time because the defendant wasn't moving and burden to make those findings or to prove to the court that there is that there's a reason for these this tape just says it is could come in with the gaps if there's an explanation that's reasonable to the for why they're there you've used that word twice reasonable and also said look at the facts of this case so and i think opposing counsel clarke in terms of release some common sense of the facts of this case there to believe based on the facts of this case that this recording i mean assuming for the purposes of argument that this thirty second gap was indeed a gap right word and the counsel has that is it reasonable to assume that the recording first captured the defendant who by the way had confessed choice but then stopped while the real perpetrator rushed in and stole the money is that  fairbridge visited the defendant i mean the trial court is it reasonable for the trial court to believe under those circumstances of this case i'm just using your word reasonable in circumstances of this case that someone fabricated the tape to then put in the pictures of defendant that were already on the tape well if that's the silent witness rule is designed to prevent object tapes are coming in and it's a reasonable rule and in this case we we don't know how this video was made we don't know when this video could have come from the week before and he didn't know how to work that work the unit  starts looking at it and he adjusts the contrast and he can see the image we're we don't know that and we don't know how much light was in there we don't know how the sensor worked and the defendant should not have to prove the checklist if we can call it that it is a simply the silent witness rule which is really easy to establish our asking is to show that the equipment work that was operating properly that the operator knew what he was doing that the original was preserved like any other evidence that comes in the court we need some kind of foundation and some kind of proof that there has been no tampering with it and i think that this rule always going to come up when one there is no witness that can testify have personal knowledge of what's that the tape or force the shelf but also if or points and if you don't think it is that well the totality of the evidence would be that there is something wrong with this tape it's not natural it's it shouldn't be stopping like that i've never seen a video where it stops like that just for no reason it skips over things so the totality of the evidence in this case is that there is a problem with this tape and it's the state's burden to you know establish a foundation for it look the state did put in evidence that the that the tape stopped or could have stopped because the defendant was standing still in that particular accepted it as a reasonable explanation we will lay ch'ien was he was uncomfortable with anna's first testimony about how the state function or how the d v r function and  does it where does it show on the record that he expresses being uncomfortable because he specifically questioned the tech the van and himself he asked them what about the scap and this is already after  questioned by the judge says i basically he says i don't know and the judge says well that's a good enough foundation that's basically what happened here there is they they get the detective and he had no answer for this and the judge said report to show something that didn't happen on a tape that simply fails to record something but the rest of the tape as are all those things can happen right but here the only it seemed like the primary objection was that the motion sensor didn't properly work and keep the tape or the camera rolling while the defendant was in front of its right didn't seem like the objection that the lawyer trial lawyer made was that the tape was tampered with if just or something unknown happened because that they stop running that's right that's i mean how could he know he has not seen the original which may have more than this copy does and he was not told what the gaps what was in the gaps or how the gaps occurred was not given a reasonable reason for why these gaps are there oh how we are all if at no i don't think it does i mean this this tape would have come in if it wasn't chopped up like that that's what created the problem that is the attack on that evidence and  i think that it has to be made based upon that and the evidence that about these admissions he has basically told the tech to van and that he had done this before and in his confession that attacked the van and he said that he stole like four hundred dollars in may and five hundred dollars in july and then the email from sue epson states that the defendant told her that he had done it on a couple of occasions and he took gas money in this case it was twenty dollars so that that doesn't m his written report of the confession doesn't contain that the sumburgh so there's there's little problems all over here with with the admissions that can be attacked but the substantial problem here is when you look at the tape there's something wrong that's why the fence council objected that's the only reason and he wanted to know how this tape was made and how the cast one question is is appears that the focus of your argument is the recording of the images by this camera and the motion detector and such i also making arguments or are they forfeit that the transfer of that recording to be a chess tape is somehow in from i also arguing that i don't know because i don't know what that digital recording shell was there was no testimony that is an duplicate of the digital recording so the digital coding may have the gaps and it so i don't know so your position mr holder brant is if in in for example had successfully explained  the thirty seven i know your position is that he did but if he had successfully explained away the thirty seconds on the tape that it would have been admissible yes i believe that there is somewhere an explanation that would be good  ough so i want i want to i think the standard of proof question of justice term or becomes important because the trial court you know the trier of fact found that it was successfully explained away by h so that's what the one hearing the testimony decided i mean when the appellate court and likewise this score have to find that it was against the manifest weight of the evidence for the trial court to make that determination and therefore he abused  have to do write write well and did not explain why the gap was there but the trial judge said he did you do what you would really did without bait without it being based on any evidence that he was given he made at the termination with no with no us support in the record for if he was going to make that the motivation to you don't we spend some time talking about how he said that he either didn't move or went under the desk or whatever yes and that's not reflected in the tape the tape contradicts testimony about the gaps it contradicts that it doesn't it doesn't support it it doesn't make sense if if that the tape disposed to go for thirty seconds after there's no movement yet per second it was twelve seconds long started saying how this trial judge was supposed to say that you come up with this that it was not a sufficient explanation he found it to be a sufficient explanation so what is and does the trial judge tearing his hair down now to indicate that he ended his explanation was not sufficient that you agree that if it was sufficient the tape would come in and it's guess at why there is this insufficient for you know it's obvious that he didn't know ok they thank you counsel i have a couple of factual points to start first there was a question about the specificity of defendant's confessions first there's a confession to detective and that's on page twenty seven detective what if anything did the defendant say about his role in regard to the events that took place on december tenth at deerfield high school at four fifty two the defendant told me he took the money out of marcia's desk then there's paul mccartney's testimony about the confession to school officials and this is on page ninety one during this meeting did you have a chance to talk to the defendant about his role in the theft that took place on december tenth two thousand and five at dean marsh's desk did the defendant say anything about his role in that event he admitted to taking some money admitted to taking money from where from the marshals office and that's on page ninety one another factual point is about the thirty seconds and what the trial judge found defendant is right that the trial judge showed some initial skepticism at the very beginning and that's why he grilled detective and about how the motion sensor worked but the trial court later makes clear that he has viewed the tape himself and he believes that the thirty seconds were never recorded he says and this is that page one twenty three i viewed the videotape several times there was thirty seconds that defense counsel referred to his missing i don't know that i would so much refer to it as missing based on the explanation the officer gave this was a motion activated video recorder it shut off after a period of time if there was no motion detective detected and gave an explanation for why we had the thirty second jump and i'm skipping ahead here  to one twenty four there was no indication that this had changed in any way from the time he viewed it on monday morning after the money was found missing simply because it did not record the entirety of the events in the room i don't think that casts any doubt on the fact that it clearly showed the defendant in the room so the trial court considered defendant's argument and rejected it another problem with the defendant's theory is that there should be thirty seconds showing the defendant standing still that's only true if we believe that the recorder was set to go for thirty seconds after it stops sensing motion and that was part of what i am testifying to later he said it would only go for fifteen seconds and finally his testimony on this was he couldn't remember how long he set it to record for so he was uncertain on that point if he had said it for some lesser time say five seconds the gaps in the tape are completely consistent with that the other problem with the defense theory is that it's assuming that this recorder is so sensitive that it picks up any motion he says he was moving around when the recorder shot off in the middle of the tape i disagree i think i look at the tape and if he's making any motion there when it shuts off it's extremely subtle so of course he's not perfectly still he's breathing he's blinking or something like that but there's no evidence that this recorder was so sensitive that it would pick up slight motions like that so if the defense theory is that the thirty seconds was deleted and shows tampering that was rejected by the trial court that is a factual question that could only be reviewed for manifest error it's not manifest if his point is that even if the thirty seconds wasn't deleted and even if it was just never recorded at all as the trial court found in the tapes still doesn't coming that's just wrong that's not how the authentication question works that would allow the opponent of the evidence to say what he thinks a proponent ought to show and then complain that it's an authentic because it doesn't meet his expectations the frame of reference for authentication is what does the proponents claim it's evidence is so if we had tried to pass this tape off as a complete account of everything that happened in marshal's office then we would have an authenticity problem because there are clearly thirty seconds missing but we never took that position our position all along was that this tape was an accurate recording of part of what happened in marcia's office part of it was a recording and we've made that clear from the beginning but it is an accurate recording of what we claimed it to be that is part of the activity in the  defendant also to the point about what could have happened in the missing thirty seconds the defendant is free to make the argument to the fact finder that something exculpatory happened and he could certainly offer evidence  support of that theory but of course there isn't any evidence here as to the issue of whether the the original d v r recording was the same as the v h s recording there is evidence on that point it's true there is not testimony and that's only because the found him didn't make a point of this at trial he had the police report that says i copied this d v r he apparently didn't think there was anything to be gained from making an issue of it if he had done it we could have offered more detail but as the record stands there is proof just the detective saying this is a copy that's sufficient to support a finding that it really is a copy finally there was a point about  didn't we use the original there's a couple of good reasons it's not clear from the record but there's a couple that the record supports one is that all the record shows about how annan was able to use that he could plug in a thirteen inch portable monitor to see what was on the d v r and as the court's questions indicated it was like a computer hard drive so of course the obvious one obvious explanation is that a thirteen inch monitor isn't suitable for use at trial presumably it was transferred to v h s because they had a larger p c r they can play on the other problem is that it would be as the courts question suggested impractical to sequester this equipment and not thank you counsel for your arguments based number one one zero zero six seven people versus three were mistaken under visors agenda number