UNITED STATES, Appellee

V.

Albert R. HARRIS, Yeoman Seaman

U.S. Navy, Appellant

No. 00-0553

Crim. App. No. 98-1951

United States Court of Appeals for the Armed Forces

Argued January 9, 2001

Decided September 24, 2001

BAKER, J., delivered the opinion of the Court, in which CRAWFORD,

C.J., and SULLIVAN, GIERKE, and EFFRON, JJ., joined.

Counsel

For Appellant: Lieutenant Hardy Vieux, JAGC, USNR (argued);

Lieutenant Mari-Rae Sopper, JAGC, USNR.1

For Appellee: Colonel Marc W. Fisher, Jr., USMC (argued);

Lieutenant Commander Philip L. Sundel, JAGC, USNR, and

Lieutenant Danette L. Walker, JAGC, USNR (on brief).

Military Judge: Mark S. Utecht

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION

 

1

 The Court notes with regret that Lieutenant Sopper was killed on September

11, 2001, when the airliner on which she was flying was hijacked by terrorists

and crashed into the Pentagon.
United States v. Harris, No. 00-0553/NA

2

Judge BAKER delivered the opinion of the Court.

Appellant, a Yeoman Seaman (E-3) in the United States Navy,

was convicted, contrary to his pleas, of two specifications each

of larceny and forging checks with the intent to defraud,

violations of Articles 121 and 123, Uniform Code of Military

Justice, 10 USC §§ 921 and 923, respectively. A military judge

sitting as a special court-martial sentenced appellant to a badconduct discharge, confinement for 100 days, a fine of $1,000,

and reduction to pay grade E-1. The convening authority approved

the sentence as adjudged. The Court of Criminal Appeals

consolidated the larceny specifications and, with that

modification, affirmed the findings. Reassessing the sentence,

the court approved only so much as provided for a bad-conduct

discharge, confinement for 90 days, the fine of $1,000, and the

reduction in pay grade. United States v. Harris, 53 MJ 514 (NM

Ct. Crim. App. 2000). We granted review of the following issues:

I.

WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE

GOVERNMENT SATISFIED THE FOUNDATIONAL REQUIREMENTS FOR

THE AUTHENTICITY OF A VIDEOTAPE UNDER THE "SILENT

WITNESS" THEORY, WHERE THE CHAIN OF CUSTODY WAS

INADEQUATE AND NO PHOTOGRAPHIC EXPERT TESTIFIED

REGARDING THE INTEGRITY OF THE TAPE.

II.

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN,

OVER DEFENSE OBJECTION, HE ADMITTED THE VIDEO CAMERA

LOG SHEET UNDER THE "BUSINESS RECORDS" EXCEPTION TO THE

HEARSAY RULE, WHERE THE EVIDENCE DID NOT ESTABLISH THAT

THE LOG QUALIFIED AS A "RECORD OF REGULARLY CONDUCTED

BUSINESS ACTIVITY."
United States v. Harris, No. 00-0553/NA

3

We resolve these issues against appellant and affirm.

Background

The charges arose from two negotiated checks from an

officer’s "coffee mess" checking account maintained by Fighter

Squadron 101, Naval Air Station Oceana in Virginia Beach,

Virginia. Appellant was assigned to the squadron’s personnel

office, where the checks for the fund were kept. A routine audit

by Lieutenant (Lt) Anton Papp, who maintained the fund, revealed

that check #2951 for $560.00 had been cashed out of sequence. On

further investigation, Lt Papp discovered that additional checks

were missing and that check #2952 for $265.00 had also been

cashed.

Lt Papp obtained copies of checks #2951 and #2952 from

Nations Bank and discovered that they had been signed using his

name, though he testified that it was not his signature. Both

checks were made out to Wallis Lacey, a Navy Senior Chief, who

had lost his Virginia driver’s license at an earlier date.

Senior Chief Lacey’s missing license had been used as

identification to cash both checks at the drive-up windows of the

First Colonial branch of Nations Bank in Virginia Beach.

Using the date and time information that was automatically

printed on the checks at the time of the transactions, the bank

fraud investigator, Mr. James Therrien, was able to locate the

video camera tape of the drive-up windows at the bank. The video

recorder, calibrated to the bank’s computer clock, sequentially
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4

recorded footage from cameras at the bank’s four drive-up lanes

and automatically recorded the date and time, cycling between the

four lanes every two seconds. Mr. Therrien ran the tape through

the video recording device at his office and was able to “freeze

frame” the tape segments and print out photographs depicting the

events on the date and two minutes before the time check #2952

was cashed (May 30, 1996, 12:45 p.m.). The photographs showed

appellant using the drive-up windows at that time. Moreover, Mr.

Therrien testified that the video sequence on the tape, which

recorded activity at all four drive-up lanes, indicated that

appellant was the only one using the drive-up windows at the

time.2

The bank had a policy of storing the video tapes after the

counter on the tape reached 5000 and not reusing the tapes again

for 6 months. Because 6 months had passed since the storing of

the tape containing the transaction relating to check #2951, that

tape was not available since its contents had been recorded over.

 

2

 The photographs, Prosecution Exhibits 8, 9, 10, and 11, appear clear enough

for the military judge to have been able to compare them to appellant, who was

present in the courtroom.
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At trial, the Gvernment called Mr. Therrien and Ms. Roberts,

one of the bank’s tellers, to lay the foundation for admission of

the photographs into evidence. Besides relating how he located

the video tape and printed the photographs from the tape

segments, Mr. Therrien testified as to his knowledge of

Prosecution Exhibit 14 (PE 14), the logbook used to record the

handling of the security video tapes. He testified that PE 14,

the “Security Video Tape Library/Inspection Log,” was a “standard

log set up at every one of the banking centers under procedures

by the security department to control the VCR tapes.” Further,

he indicated bank personnel made entries and initialed the log

when a tape was placed in the video recording device, when the

tape was removed and placed in storage, when the tape was sent to

some location outside the bank, and when there was a malfunction

of any type in the video system. While he was not familiar with

all of the initials on PE 14, he did recognize some of them.

Further, he was able to show on PE 14 the notation indicating

that the tape he requested relating to check #2952 had been sent

to him via interoffice mail, and he testified that he kept it

until giving it to a military investigator. He also indicated

that the individuals making the entries were required to have

personal knowledge of the information they recorded in the log.

Finally, he testified the log was “prepared in the course of the

business of the banking center.”

Ms. Roberts testified that her duties included, among other
United States v. Harris, No. 00-0553/NA

6

things, handling the video tapes. Like Therrien, she was

familiar with the log, and because her duties required her to

make entries, she was intimately familiar with the use of the

log. Specifically, she testified that the video camera

surveillance system was checked every morning as part of the

procedure to open the bank for business. Tapes were changed when

the tape recording counter reached 5000. If a tape needed

changing, a new one was placed in the machine by an employee who

then watched the monitor to ensure the system was recording on

the new tape. All of these actions were recorded in the log.

Regarding PE 14, she indicated that the instructions for

recording entries in the log were printed on the reverse side of

the log sheet. Like Therrien, she also testified that the log

was kept in the normal course of the bank’s business.

Notwithstanding this evidence, trial defense counsel continued to

object, arguing that the foundation for admitting the photographs

and the log sheets was insufficient. This objection was

overruled, and the photographs and the log sheet were admitted.

Discussion

The Government offered the photographs under the so-called

“silent witness” theory. This theory allows authentication of

photographs by the reliability of the process that created them,

without the need of a human witness to the events shown by the

film. 2 John W. Strong, et al., McCormick on Evidence § 214 at

15 (5th ed. 1999). Appellant argues that the evidence from the
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7

bank’s video surveillance camera is inadmissible as substantive

evidence because it was not properly authenticated. He also

claims that the supporting documentary evidence, the videotape

logbook, is hearsay.

Appellant does not dispute that the "silent witness" theory

of authenticating evidence was the appropriate theory in this

case. Instead, he claims that the lower court abused its

discretion in applying the test because the foundational

requirement was not met. Appellant contends that: (1) the

Government did not offer evidence as to the operative condition

of the camera on May 30, 1996; (2) the procedures of the bank for

handling the videotape were inadequate to prevent tampering; (3)

the testimony of two bank employees was inadequate to show that

the videotape was admissible; and (4) the testimony of the bank’s

fraud expert was insufficient to establish the tape had not been

altered. Finally, appellant argues that the videotape logbook

should not have been admitted under the business record exception

to the hearsay rule, Mil.R.Evid. 803(6), Manual for CourtsMartial, United States (2000 ed.).3

The Government argues for the admissibility of the videotape

evidence under the "silent witness" theory. While this Court has

never directly addressed the question of the foundational

requirements for videotapes under the "silent witness" theory,

 

3

 All Manual provisions cited are identical to the ones in effect at the time

of appellant’s court-martial.
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the Government argues that this Court should adopt the prevailing

view of the federal and state courts. The Government believes

the testimony of the bank’s fraud examiner was sufficient under

the prevailing view to show the proper operation and reliability

of the camera. The Government claims that the logbook system

used by the bank to record the movement of surveillance

videotapes was adequate to show a chain of custody and to show

that the tape was admissible as a business record under

Mil.R.Evid. 803(6).

Lastly, the testimony of Mr. Therrien and Ms. Roberts was

sufficient, in the Government’s view, to lay a foundation for the

admission of the videotapes, since both could testify to the

general practice of keeping the logbook. Thus, there are two

interrelated issues in this case: 1) the admissibility of the

logbook used to track the videotape, and 2) the authentication of

the videotape.

Admissibility of the Logbook

 The videotape logbook was admitted under Mil.R.Evid. 803(6),

an exception to the hearsay rule for "[r]ecords of a regularly

conducted activity." "A military judge's decision to admit or

exclude evidence is reviewed for abuse of discretion." United

States v. Allison, 49 MJ 54, 57 (1998). Mil.R.Evid. 803(6)

prevents the exclusion as hearsay of a

memorandum, report, record, or data compilation, in any

form, of acts, events, conditions, opinions, or

diagnoses, made at or near the time by, or from

information transmitted by, a person with knowledge, if
United States v. Harris, No. 00-0553/NA

9

kept in the course of a regularly conducted business

activity, and if it was the regular practice of that

business activity to make the memorandum, report,

record, or data compilation, all as shown by the

testimony of the custodian or other qualified witness,

unless the source of information of the method or

circumstances of preparation indicate lack of

trustworthiness.

(Emphasis added.) The wording of Mil.R.Evid. 803(6) mirrors Fed.

R. Evid. 803(6), and should be satisfied by similar factual

findings.

A writing is admissible under Fed.R.Evid. 803(6) if two

foundational facts are proved: (1) the writing is made

or transmitted by a person with knowledge at or near

the time of the incident recorded, and (2) the record

is kept in the course of regularly conducted business

activity. . . . These facts must be proved through the

testimony of the custodian of the records or other

qualified witness, though not necessarily the

declarant. . . . The record will not be admissible,

however, if the source of information or the method or

circumstances of preparation indicate a lack of

trustworthiness.

United States v. Miller, 771 F.2d 1219, 1237 (9th Cir. 1985)

(citations omitted); see United States v. Casey, 45 MJ 623, 626

(NM Ct. Crim. App. 1996).

This Court has held that a witness only needs to be

generally familiar with the process in order to be "qualified"

under Mil.R.Evid. 803(6). United States v. Garces, 32 MJ 345,

347-48 (CMA 1991). In this case, the Government clearly met the

standard of Mil.R.Evid. 803(6) through the testimony of the two

bank employees: Mr. Therrien and Ms. Roberts. The testimony of

Mr. Therrien established him as a qualified witness. He was the

bank fraud examiner for the Norfolk, Virginia, area and was

familiar with the videotape and logbook system. He testified
United States v. Harris, No. 00-0553/NA

10

that the logbook entries were made when a tape was changed. He

also stated that the entries were initialed when made and were

made by people with personal knowledge. His testimony also

established that the logbook was routinely used at all of the

branch banks and was kept in the course of business.

The testimony of Carol Roberts, a teller at the bank, also

met the requirements of Mil.R.Evid. 803(6). She was a qualified

witness who testified that she made entries in the logbook

herself. She discussed how entries were made when the tapes were

changed and that this was regular procedure. The procedure was

also noted on the back of the logbook itself. While Ms. Roberts

did not make the logbook entry on the day in question, she could

identify the initials for that day as those of Cindy Fernando,

another teller. The testimony of both bank employees shows that

the logbook qualified as a business record under Mil.R.Evid.

803(6). Thus, the military judge did not abuse his discretion,

and the evidence was properly admitted.

Authentication of the Videotape

Appellant challenges the Court of Criminal Appeals holding

that the surveillance camera videotape was properly authenticated

and, therefore, admissible. When our Court reviews a decision of

a Court of Criminal Appeals on a military judge’s ruling, “we

typically have pierced through that intermediate level” and have

examined the military judge’s ruling, and then decided whether

the Court of Criminal Appeals was correct in its examination of
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the military judge’s ruling. See United States v. Siroky, 44 MJ

394, 399 (1996). A military judge’s decision to admit evidence

is reviewed for abuse of discretion. United States v. McElhaney,

54 MJ 120, 129 (2000); United States v. Schlamer, 52 MJ 80, 84

(1999); United States v. Sullivan, 42 MJ 360, 363 (1995).

Appellant also challenges the authentication of the "freeze

frame" photographs taken from the tape on the grounds that the

"silent witness" theory of authentication was misapplied in this

case. While this Court has not previously adopted this theory of

authentication, the facts of this case support the lower court’s

adoption of the "silent witness" theory and its proper

application to these facts.

The "Silent Witness’ Theory of Authentication

Generally, a photograph is admitted into evidence as "a

graphic portrayal of oral testimony, and becomes admissible only

when a witness has testified that it is a correct and accurate

representation of relevant facts personally observed by the

witness." McCormick on Evidence, supra at 14. However, over the

last 25 years, the "silent witness" theory of authentication has

developed in almost all jurisdictions to allow photographs to

substantively "speak for themselves" after being authenticated by

evidence that supports the reliability of the process or system

that produced the photographs. Id. at 16 & nn.15-18.

The threshold case for automated camera evidence is United

States v. Taylor, 530 F.2d 639, 641-42 (5th Cir. 1976). In that
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case, footage recording a robbery that was taken after bank

employees were locked in the bank vault was admitted, despite the

fact that no one could testify as to the events shown. Rather,

witnesses testified about "the manner in which the film was

installed in the camera, how the camera was activated, the fact

that the film was removed immediately after the robbery, the

chain of its possession, and the fact that it was properly

developed and contact prints made from it." Id. at 642.

The federal circuits that have examined the issue have

followed this "silent witness" approach. United States v. Bynum,

567 F.2d 1167 (1st Cir. 1978); Mikus v. United States, 433 F.2d

719 (2d Cir. 1970); United States v. Clayton, 643 F.2d 1071 (5th

Cir. 1981); United States v. Gordon, 548 F.2d 743 (8th Cir.

1977); Diane M. Allen, Annotation, Admissibility of Visual

Recording of Event or Matter Giving Rise to Litigation or

Prosecution, 41 A.L.R. 4th 812 (1985 & Supp. 2000)(citing federal

and state cases).

The Navy-Marine Corps and Army Courts of Criminal Appeals

have also adopted the "silent witness" theory. Harris, 53 MJ at

520; United States v. Howell, 16 MJ 1003, 1005-06 (ACMR 1983);

United States v. Reichart, 31 MJ 521 (ACMR 1990). In light of

this line of federal cases demonstrating, over a 25 year span,

the evidentiary reliability of the “silent witness” theory, we

adopt it for military courts as well. Any doubt as to the

general reliability of the video cassette recording technology
United States v. Harris, No. 00-0553/NA

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has gone the way of the BETA tape.

Authentication under the Military Rules of Evidence

"The requirement of authentication or identification as a

condition precedent to admissibility is satisfied by evidence

sufficient to support a finding that the matter in question is

what its proponent claims." Mil.R.Evid. 901(a)(emphasis added).

Mil.R.Evid. 901(b)(9) specifies that proper authentication can be

provided by "[e]vidence describing a process or system used to

produce a result and showing that the process or system produces

an accurate result." (Emphasis added.) The guiding issue here

is what quantum of evidence about the recording process and

system is sufficient to support a finding that automated video

camera footage is authentic under Mil.R.Evid. 901(b)(9).

 In appellant’s case, the court below used reasoning similar

to that in Taylor, supra, to permit the authentication of this

videotape under the "silent witness" theory. Looking to an

earlier Army Court of Criminal Appeals decision, the court below

required the proponent to show evidence of

“the process by which the videotape was taken, i.e. the

installation of the camera, testing and removal of the

film”. . . [and] evidence concerning the integrity of the

tape . . . through evidence concerning its chain of

custody or evidence to establish that the tape was not

tampered with or altered.

53 MJ at 520 (quoting Reichart, supra at 523).

Based on the requirements of Mil.R.Evid. 901(b)(9), we hold

that the record establishes a reasonable foundation for

authenticating the photos taken by the automated camera: (1) the
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system was reliable; (2) the system was in working order when the

photo was taken; and (3) the film was handled and safeguarded

properly from the time it was removed from the camera until the

time of trial. Edward J. Imwinkelried, et al., 1 Courtroom

Criminal Evidence § 411 at 124 (3d ed. 1998); Reichart, supra.

The reliability of the camera system can, but need not, be

shown by an expert witness. In recent cases, witnesses have

established reliability without describing the technical

mechanics of the operation of the camera. Instead, evidence of a

time and date on the film has been sufficient to show that the

camera was working when the picture was taken. Evidence of the

integrity of the photography can be established through testimony

showing that the tapes or photographs have not been altered and

have not been the subject of tampering.

For example, the D.C. Circuit held that photographs from an

ATM machine were admissible, even though the authenticating

witness was merely the custodian of the records and did not

testify as to the reliability of the system or the details of its

functioning. United States v. Rembert, 863 F.2d 1023, 1026-29

(D.C. Cir. 1988). The pictures were considered reliable because:

(1) they were confirmed by victim witnesses; (2) the date, time,

and place were indicated; and (3) there was testimony concerning

the security of the film and the loading of the camera.

More recently, that court has admitted such photos using a

more relaxed standard, without any eyewitness or expert
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testimony. United States v. Fadayini, 28 F.3d 1236, 1241 (D.C.

Cir. 1994) (ATM photos authenticated by the testimony of bank

personnel regarding the recording system and time/date indicia on

the photo); See State v. Colby, 431 A.2d 462, 464 (Vt. 1981)

(photographs made from surveillance videotape admitted based on

evidence that time/date stamp and videotape matched, machine was

functioning properly, and photographs were an accurate

representation of videotape); Ex Parte Rieber, 663 So.2d 999,

1008 (Ala. 1995)(videotape analyzed under “silent witness” theory

when no witness can testify to what appeared in the tape

footage); Diane M. Allen, Annotation, supra.

Evidence of Operability

Appellant argues that neither Mr. Therrien nor Ms. Roberts

could testify to the operative condition of the camera on the day

that the check was cashed. In this case, the Government

established that the bank’s video camera system continually

recorded the drive-up windows of the bank, switching at twosecond intervals between the cameras in the four drive-up

windows. 53 MJ at 520. The videotape recorded the time and

date, and this information was checked regularly when the tapes

were changed. The tapes were numbered when they were removed and

noted in a logbook, and stored in a locked cabinet for 6 months,

after which they were reused. Mr. Therrien examined the time,

date, and teller-number information printed on the back of the

check in question, requested and received the videotape covering
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that time period, located the time period on the tape, and

printed out pictures. He also testified that appellant’s car was

the only one in the drive-up lanes during this period. This

level of detail about the process of video monitoring, notation

of time and date, and storage of the tapes meets the

authentication requirement of "describing a process or system

used to produce a result and showing that the process or system

produces an accurate result." Mil.R.Evid. 901(b)(9).

Testimony as to the technical operation of the video camera

on the day in question was unnecessary, just as testimony from

the actual camera operator or an expert in photography is

unnecessary in order to admit a photograph. United States v.

Hobbs, 403 F.2d 977, 978 (6th Cir. 1968)(noting that photographs

are well-accepted evidence and that expert testimony on the

process is unnecessary). Evidence of the bank’s procedures and

the date and time on the film is enough to support a finding that

the camera operated on that day, absent evidence sufficient to

rebut this contention. Fadayini, supra; United States v.

Stearns, 550 F.2d 1167, 1171 (9th Cir. 1977)(opinion by Judge

[now Justice] Kennedy noting that a photograph can support its

own authenticity by what appears in the picture).

Chain of Custody

The evidence of the process in this case also accounts for

the integrity of the videotape. Appellant claims that the

testimony fails to establish a chain of custody for the videotape
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for the time before it was delivered to Mr. Therrien. The record

reflects that, consistent with the bank’s practice, the tape was

removed from the video recorder by a bank employee. That fact

was recorded in the log. The tape was kept in a storage room

until it was sent to Therrien upon his request. Therrien, in

turn, maintained possession of the tape until he surrendered it

to investigators. Appellant, on the other hand, has offered no

evidence, outside speculation, that the tape was mishandled or

altered. Moreover, to establish chain of custody, "[t]he

Government is not required to exclude every possibility of

tampering." United States v. Maxwell, 38 MJ 148, 150 (CMA 1993).

Current computer technology makes alteration of photographs

a possibility any time that photographs are used. However, the

Government need only show by direct or circumstantial evidence a

"reasonable probability" that the evidence is authentic. Id. at

150-51. That burden is met here by the evidence noted above

regarding the removal and storage of the videotapes, the

date/time indicator on the film, and the testimony regarding Mr.

Therrien’s request and receipt of the tape. The logbook notes

that the tape was sent to him, and he testified that he received

it by interoffice mail.

In addition, a mere claim that photographs may be altered

should not bar their admission. The proponent is not required to

prove a negative. Gaps in the chain of custody "go to the weight

of the evidence, rather than its admissibility." Id. at 152
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(quoting United States v. Olson, 846 F.2d 1103, 1117 (7th Cir.

1988)). While it is possible that a tape can be altered, the

evidence establishes a reasonable probability that the

photographs accurately show the drive-up lanes on the date and

time noted and, therefore, are what their proponent claims under

Mil.R.Evid. 901(a). Therefore, we conclude that the military

judge did not abuse his discretion in admitting this evidence,

and the court below did not err in holding that the foundational

requirements for this evidence were met.

Conclusion

The log sheet having been properly admitted, we hold the

photographs and the video tape were properly authenticated.

The decision of the United States Navy-Marine Corps Court of

Criminal Appeals is affirmed.