Defendant’s testimony makes admission error harmless

Although unauthenticated videos and photos showing a defendant appearing to make methamphetamine should not have been admitted at trial under the silent-witness theory, the Indiana Court of Appeals found the error was harmless because of the defendant’s own testimony.

Ashley McFall was convicted of Class A felony dealing in methamphetamine (manufacturing) in Elkhart Superior Court.

Key evidence at trial were videos and photos taken by a man named “Javier” on his cellphone. Detectives at the police department did not know him but believing his information was accurate, downloaded the videos and allowed Javier to leave the station with this cellphone.

By trial, Javier could not be located and was thought to have left Indiana. The state introduced the videos and photos at trial under the silent-witness theory since Javier did not testify as to the authenticity of the images.

The Court of Appeals noted to use the silent-witness theory the videos and photos cannot have been altered. And in this instance, the state could not verify the images had not been tampered with before Javier turned them over to police.

However, McFall ended up authenticating the material. She identified herself in the videos and photos and acknowledged the events depicted in them had occurred.  Accordingly, the appellant panel found any error in the admission of the videos and photos under the silent-witness theory was rendered harmless by McFall’s testimony.

The case is Ashley N. McFall v. State of Indiana, 20A03-1602-CR-267.

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