Criminal Law FLASHPOINTS January 2023

Matthew R. Leisten, Ogle County State’s Attorney’s Office, Oregon
815-732-1170 | E-mail Matthew R. Leisten

Illinois Supreme Court Rules on Admissibility of Cell Phone Videos

In People v. Smith, 2022 IL 127946, the Illinois Supreme Court upheld the state’s use of iPhone-recorded partial video clips from a building’s surveillance cameras in a burglary trial. The Supreme Court found that the videos were admissible duplicates and that the original surveillance footage was not required to be admitted. The Supreme Court also held that the common law’s requirement of showing “diligence” in obtaining original evidence under the best evidence rule had been abrogated by the Illinois Rules of Evidence.

In Smith, the defendant was charged with residential burglary of an apartment in Carbondale. 2022 IL 127946 at ¶1. During the investigation, the victim told the police that there were video cameras in the apartment building. 2022 IL 127946 at ¶5. The victim later recorded the video footage on his iPhone, and a police officer identified the defendant on the videos. 2022 IL 127946 at ¶6. The videos were admitted over the defendant’s objections that they violated Ill.R.Evid. 1003 and 1004 or, alternatively, the best evidence rule. 2022 IL 127946 at ¶1.

At the trial, the landlord laid the foundation for the building’s video cameras. The landlord explained that his wife recorded the selected footage onto her iPhone. The landlord stated that he and his wife chose certain sections of what they thought was relevant footage to record onto her iPhone. 2022 IL 127946 at ¶¶8 – 11. The landlord further explained that they observed a 20-minute period between the two cell phone video clips on the original building footage — but that they did not provide that 20-minute period to the police — because they were unable to copy the footage onto a flash drive and thus used the iPhone instead. 2022 IL 127946 at ¶13.

The landlord identified the defendant on the two iPhone video clips at trial standing near the victim’s doorway and later exiting the victim’s apartment. 2022 IL 127946 at ¶12. The defendant was found guilty of residential burglary. 2022 IL 127946 at ¶1.

The Supreme Court upheld the admission of the iPhone video clips under Ill.R.Evid. 1003 (duplicate exception) and held that they were admissible duplicates under Rule 1001(4). 2022 IL 127946 at ¶42. The Supreme Court first found that cell phone videos fall under Rule 1001’s definition of a “[w]riting” or “[r]ecording.” 2022 IL 127946 at ¶27.

Next, the Supreme Court determined that a cell phone video could qualify as a “duplicate” under Rule 1001(4) of any original footage that the cell phone video recorded as long as it accurately reproduced the original. 2022 IL 127946 at ¶¶29 – 30. The court rejected the defendant’s argument that Rule 1001(4) required a duplicate to include the entirety of an original. The court noted that Rule 1001(4)’s language did not require a duplicate of the entirety of an original in order to be a duplicate. 2022 IL 127946 at ¶42.

The Supreme Court next examined whether it was unfair to admit the iPhone clips under Rule 1003(2) (“a duplicate should not be admitted if ‘in the circumstances it would be unfair to admit the duplicate in lieu of the original’ ”). 2022 IL 127946 at ¶¶31, 44. The court analyzed the video clips along with the trial testimony and concluded that admitting the duplicate video clips was fair because the jury heard both sides and had ample information from the defendant’s point of view when deciding what weight to give to the video clips. 2022 IL 127946 at ¶49.

The court cautioned, though, that parties should not engage in bad behavior by selectively editing duplicate videos to gain an advantage at trial. 2022 IL 127946 at ¶50.

Finally, the Supreme Court rejected the defendant’s contention that the common-law best evidence rule, as stated under Electric Supply Corp. v. Osher, 105 Ill.App.3d 46, 433 N.E.2d 732, 60 Ill.Dec. 690 (1st Dist. 1982), also barred the admission of the iPhone clips. 2022 IL 127946 at ¶57. The defendant had argued that the state was required to show “diligence” in seeking the original surveillance footage under Osher and the common-law best evidence rule. 2022 IL 127946 at ¶54. The court emphasized that the Illinois Rules of Evidence codified and abrogated the common-law rules of evidence, and therefore the Illinois Rules of Evidence were controlling. 2022 IL 127946 at ¶56.

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