Justice BURKE delivered the judgment of the court, with opinion.
¶ 1 The principal issue presented in this case is whether under the so-called "silent witness" theory, a videotape recording was properly admitted at defendant's trial. The appellate court held that it was not and reversed defendant's conviction for misdemeanor theft. 398 Ill.App.3d 74, 337 Ill.Dec. 658, 922 N.E.2d 1235. For the reasons that follow, we reverse the judgment of the appellate court.
¶ 3 In 2005, several thefts occurred at the office of Kevin Marsh, dean of students at Deerfield High School in Deerfield, Illinois. Marsh had been collecting money for a fundraiser. He had placed the money in a bank pouch and then put the pouch in his office desk. Money disappeared several times from the pouch over weekends when Marsh's office door had been locked.
¶ 4 Following the thefts, Detective William Annen of the Deerfield police department met with Marsh and suggested they set up a surveillance camera in Marsh's office. On Friday, December 1, 2005, Annen set up the equipment, which consisted of a motion activated, wireless, digital camera concealed within a clock radio and a digital video recorder (DVR). Annen had only recently begun using such equipment. He testified that an employee at the store where he purchased the equipment had shown him how to set it up and use it. Annen further stated he read the instructions that came with the equipment. Annen explained how the equipment worked:
Annen testified that he placed the clock radio on Marsh's desk, in front of the drawer from which the money had been taken. Annen tested the equipment by turning everything on and making sure there was a good picture coming from the camera. Annen stated that when any moving object came into the viewing area of the camera, the recording process would start.
¶ 5 On Monday, Annen returned to Marsh's office and checked the equipment. He found that the motion sensor had triggered the DVR and a recording had been made. However, the images on the recording were not visible due to insufficient light.
¶ 6 On Friday, December 9, Annen set up the equipment again and placed a small lamp on Marsh's desk. He left a note next to the lamp requesting that it be left on.
¶ 7 On Monday, December 12, Annen returned to Marsh's office after Marsh advised him $20 was missing from the pouch. At this time, the DVR, transmitter and camera were all still on. Again, the DVR had been triggered. Annen, along with Marsh and Paul Mocogni, the school's facility manager, viewed the DVR recording. Marsh and Mocogni identified defendant, Teryck Taylor, as the individual in the recording. Defendant worked at the school as a night watchman.
¶ 8 On December 16, Mocogni, Sue Hebson, the school's principal, and Barry Bolek, the school's assistant superintendent, met with defendant. During the interview, defendant admitted to stealing cash from Marsh's office on December 10. However, defendant stated it was only $10. Defendant also admitted to taking cash on three to four other occasions.
¶ 9 According to a Deerfield police report summary, authored by Annen, on December 16, Annen "made a copy of the video surveillance on the hard drive, specifically the segment where Taylor was in Marsh's office[,] onto a VHS tape." Annen removed the tape's recording tab, and locked the VHS tape in his desk, "to be later locked in an evidence locker." The report further stated that Annen viewed all the footage recorded by the DVR from December 9 to December 12 and that no one other than defendant went into Marsh's office.
¶ 10 Annen interviewed defendant on January 4, 2006. During this interview, according to Annen, defendant admitted to stealing money from Marsh's desk on December 10.
¶ 11 Prior to trial, defendant filed a motion in limine to bar the State from using the VHS tape at trial, arguing that the State would be unable to lay a foundation for the VHS tape because it contained a 30-second skip. The trial court denied this motion, but the record does not include the reason for the denial.
¶ 12 When the State sought to admit the VHS tape at trial, defendant objected on foundational grounds, arguing that the video skips forward 30 seconds and the State failed to explain why the gap existed. Defense counsel also argued that it had not been shown that the camera was working properly. The trial court advised the State to lay a better foundation. Annen then testified the camera was still working on December 12 as it had been on December 9. Defense counsel again objected,
¶ 13 Annen then testified that, on December 9, he plugged a portable 13-inch monitor into the feed from the DVR to determine if the devices were working properly. This allowed him to see what the camera was seeing. As the camera was on Marsh's desk, Annen had Marsh walk in front of the camera to check that the motion sensor was working. When Marsh walked in front of the camera, the DVR turned on. According to Annen, this showed that the connection was working. At this point, Annen assumed the DVR was recording. When Annen returned to Marsh's office on December 12, he again plugged his monitor into the DVR. Annen saw a live feed of Marsh's desk. Everything was still on and working properly.
¶ 14 Defense counsel again objected, arguing there was no proof the sensor was working between Friday the 9th and Monday the 12th. The trial court overruled the objection, finding that Annen's testimony established the motion sensor was working over the weekend.
¶ 15 The State was then allowed to play the video. The video, which is part of the record on appeal, contains two successive segments depicting a man in Marsh's office at approximately 5 a.m. on Saturday, December 10. The first segment, which runs from 4:52:00 to 4:52:12, shows a man entering the frame from the right, crouching behind the desk, opening the drawer, and removing the bank pouch. While doing this, the man is looking around. The second segment, which runs from 4:52:41 to 4:52:49, shows the man still crouched behind the desk, then shows him rising and turning, and exiting the frame to the right.
¶ 16 During the viewing of the videotape, defense counsel again objected, arguing that the State failed to show the recording was preserved without any changes, additions or deletions and that the 29-second skip in the tape from the end of the first segment to the beginning of the second, suggested that a portion of the tape was missing. Annen testified as follows:
¶ 17 After the trial judge viewed the tape, Annen testified that the recording shown to the court was the recording he viewed on December 12 with Marsh and Mocogni and that it was the recording taken from the DVR. Specifically, he testified:
¶ 18 Annen stated the settings could be changed for the length of recording. The trial court then inquired of Annen as to exactly what that meant. Annen responded:
Although Annen could not recall how long the system was set to record, he acknowledged it would have been at least 15 seconds. When the trial court asked Annen to explain why the recording stopped at 4:52:12, Annen stated:
¶ 19 Kevin Marsh and Paul Mocogni both testified on behalf of the State and were both shown the videotape. They described what was depicted and identified defendant as the individual who appears in the tape.
¶ 20 In finding defendant guilty, the trial court commented as follows:
The trial court found defendant guilty of misdemeanor theft.
¶ 21 Thereafter, defendant filed a motion to reconsider or in the alternative for a new trial, arguing, inter alia, that the State had failed to lay a proper foundation and, therefore, the VHS tape should not have been admitted. Defendant again referred to the 30-second skip in the recording. In addressing defendant's motion, the trial court commented as follows:
Accordingly, the court found there was a proper foundation for admission of the tape and denied defendant's motion.
¶ 22 Defendant appealed. The appellate court reversed and remanded. 398 Ill.App.3d 74, 337 Ill.Dec. 658, 922 N.E.2d 1235. Citing to People v. Vaden, 336 Ill.App.3d 893, 271 Ill.Dec. 192, 784 N.E.2d 410 (2003), the appellate court noted that under the "silent witness" theory, photographic or videotape evidence may be admitted without an eyewitness to establish the accuracy of the images depicted if there is sufficient proof of the reliability of the process that produced the photograph or videotape. The appellate court then held that the State failed to lay a proper foundation for admission of the VHS tape because it failed to establish the reliability of the process that produced the tape. Specifically, according to the court, the State failed to establish a proper chain of custody, failed to establish that the camera was working properly and the original DVR recording had been preserved, and failed to give an explanation of the process of copying the recording on the DVR to the VHS tape. As such, the appellate court found that the State failed to establish even the probability that the VHS tape had not been tampered with.
¶ 23 We granted the State's petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Feb. 26, 2010).
¶ 26 The parties dispute the standard of review. The State contends that we should review the trial court's decision to admit the VHS tape under an abuse of discretion standard. Defendant contends that we should review the trial court's decision to admit the VHS tape de novo because, according to defendant, "the legal admissibility of evidence on foundation grounds `is subject to a de novo standard of review.'" We agree with the State.
¶ 27 In Cisarik v. Palos Community Hospital, 144 Ill.2d 339, 162 Ill.Dec. 59, 579 N.E.2d 873 (1991), we pointed out that videotapes are admissible on the same basis as photographs. Cisarik, 144 Ill.2d at 342, 162 Ill.Dec. 59, 579 N.E.2d 873. The admission of photographs is entrusted to the trial court's discretion. People v.
¶ 29 The State first contends that defendant has forfeited any challenge to the admission of the VHS tape on the grounds that (1) the VHS tape was a duplicate recording; (2) the State failed to explain the process used to create the duplicate, (3) the State failed to show a chain of custody, and (4) the State failed to preserve the original recording. According to the State, defendant did not object on these grounds at trial or in his posttrial motion. We agree. At trial, defendant objected to the VHS tape on the following grounds: (1) there was a 30-second jump with no explanation; (2) the camera was not working properly; (3) the evidence did not show Annen was competent to operate the equipment; and (4) the State failed to preserve the recording without changes, additions or deletions as shown by the 30-second jump. Contrary to defendant's contention, the objections defendant made at trial do not encompass all of the challenges he now raises.
¶ 30 Defendant maintains, however, that if we conclude he did in fact forfeit some of the challenges he raises in this appeal, we should review them under the plain-error doctrine. Under the plain-error doctrine, this court will review forfeited challenges when: (1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant; or (2) a clear or obvious error occurred, and the error is so serious that it affected the fairness of the defendant's trial and the integrity of the judicial process, regardless of the closeness of the evidence. People v. Herron, 215 Ill.2d 167, 178-79, 294 Ill.Dec. 55, 830 N.E.2d 467 (2005). In undertaking this review, it is appropriate to first determine whether error occurred at all. People v. Williams, 193 Ill.2d 1, 27, 249 Ill.Dec. 840, 737 N.E.2d 230 (2000). We turn, then, to whether error occurred in this case.
¶ 32 Historically, photographic evidence was admitted as demonstrative evidence. See Tracy Bateman Farrell, Construction and Application of Silent Witness Theory, 116 A.L.R.5th 373, 373 (2004). Such evidence had no significance apart from the ability to illustrate something testified to by a witness. Jordan S. Gruber, Videotape Evidence, in 44 Am.Jur. Trials 171, § 45, at 267 (1992). Most jurisdictions now allow photographs and videotapes to be introduced as substantive evidence so long as a proper foundation is laid. Id. Such evidence is generally admitted under the "silent witness" theory. Jordan S. Gruber, Foundation for Contemporaneous Videotape Evidence, in 16 Am.Jur. Proof of Facts 3d 493, § 4, at 507 (1992). Under this theory, a witness need not testify to the accuracy of the image depicted in the photographic or videotape evidence if the accuracy of the process that produced the evidence is established with an adequate foundation. In such a case, the evidence is "received as a so-called silent witness or as a witness which `speaks for itself.'" Id. § 5, at 508. The silent witness theory was originally utilized in Illinois and elsewhere in connection with the admissibility of X rays. Id. See Stevens v. Illinois Central R.R. Co., 306 Ill. 370, 375, 137 N.E. 859 (1922). The majority of cases now involve automatic cameras or surveillance systems where videotapes, CDs or DVDs are made from the system and sought to be admitted. Tracy Bateman Farrell, Construction and Application of Silent Witness Theory, 116 A.L.R.5th 373, § 2(a) (2004). See also Jordan S. Gruber, Foundation for Contemporaneous Videotape Evidence, in 16 Am.Jur. Proof of Facts 3d 493, § 25, at 537 (1992) ("Automatic surveillance pictures are, of course, one of the prototypical situations in which the `silent witness' theory has been applied").
¶ 33 This court has not addressed the foundational requirements for establishing the accuracy of a process that produces surveillance camera recordings. A majority of jurisdictions addressing this issue have set forth various relevant factors to consider. See United States v. Reed, 887 F.2d 1398, 1405 (11th Cir.1989) (although government should produce evidence regarding competency of recording machine operator, fidelity of equipment, absence of alterations to recording, and identity of individual or object depicted, "the trial court has broad discretion to allow [media] into evidence without such a showing so long as there is independent evidence of accuracy"); United States v. Harris, 55 M.J. 433, 439-40 (C.A.A.F. 2001) (foundation for authentication of photos taken by automated camera: (1) system was reliable; (2) system was in working order when photo was taken; and (3) film was handled and safeguarded properly from time it was removed from camera until time of trial); Ex Parte Fuller, 620 So.2d 675, 678 (Ala.1993) (adopting a seven-part test: (1) showing that system used "was capable of recording what a witness would have seen or heard had a witness been present at the scene or event recorded"; (2) showing operator was competent; (3) "establish[ing] * * * the authenticity and correctness of the resulting recording"; (4) showing no alterations had been made; (5) showing manner by which "recording * * * was preserved"; (6) "identif[ying] * * * the speakers, or persons pictured" and (7) in criminal cases, showing any statements made were voluntary); State v. Haight-Gyuro, 218 Ariz. 356, 186 P.3d 33 (Ariz.Ct.App.2008) (adopting flexible approach to allow trial court to consider unique facts and circumstances of each case; authentication requires sufficient evidence to allow jury to conclude video depicts with reasonable accuracy transaction/event at issue); Wagner v.
¶ 34 Most jurisdictions point out that the circumstances of each case and, thus, the requirements to guarantee the genuineness of the evidence, will always differ. See, e.g., United States v. Oslund, 453 F.3d 1048, 1054 (8th Cir.2006). Thus, while most courts set forth various factors to consider when assessing the process that produced the recording, these factors are not deemed exclusive foundation requirements. Jordan S. Gruber, Videotape Evidence, in 44 Am.Jur. Trials 171, § 60, at 287 (1992); Jordan S. Gruber, Foundation of Contemporaneous Videotape Evidence, in 16 Am.Jur. Proof of Facts 3d 493, §§ 9, 16, at 513-14, 526 (1992). See also Carl T. Drechsler, Admissibility of Videotape Film in Evidence in Criminal Trial, 60 A.L.R.3d 333, § 2(a) (1974). See, e.g., Lorraine v. Markel American Insurance Co., 241 F.R.D. 534, 544 (D.Md.2007); State v. Haight-Gyuro, 218 Ariz. 356, 186 P.3d 33 (Ariz.Ct.App.2008); Department of Public Safety & Correctional Services v. Cole, 342 Md. 12, 672 A.2d 1115 (1996).
¶ 35 Similar to the foregoing cases, the appellate court in the case at bar looked to several factors in determining whether a proper foundation had been laid for the admission of the VHS tape: (1) the device's capability for recording and general reliability; (2) competency of the operator; (3) proper operation of the device; (4) showing the manner in which the recording was preserved (chain of custody); (5) identification of the persons, locale, or objects depicted; and (6) explanation of any copying or duplication process. We agree that these factors may be considered when determining whether the process by which a surveillance videotape was produced was reliable. However, like other jurisdictions, we emphasize that this list of factors is nonexclusive. Each case must be evaluated on its own and depending on the facts of the case, some of the factors may not be relevant or additional factors may need to be considered. The dispositive issue in every case is the accuracy and reliability of the process that produced the recording.
¶ 36 Although we agree with the appellate court's choice of factors to consider, we disagree with the appellate court's conclusion that the evidence failed to demonstrate the VHS tape was admissible. The appellate court concluded that the State failed to establish the camera was working
¶ 37 Annen testified that he had recently purchased the surveillance system which consisted of the motion-activated wireless digital camera, a wireless transmitter and the DVR. Although Annen had not used the equipment before placing it in Marsh's office, an individual from the store instructed him on how to use it. In addition, he read the instructions which came with the equipment.
¶ 38 On December 1, Annen set up the system in Marsh's office. He returned to Marsh's office on December 4. At this time, the camera had been triggered and a recording had been made, but the images could not be seen because of insufficient light. On December 9, Annen took measures to correct the situation and then tested the system by having Marsh walk in front of the camera. It was triggered and recording began. When Annen returned on December 12, the camera had again been triggered. He, along with Marsh and Mocogni, viewed the recording from the DVR via a monitor and observed that two segments had been recorded.
¶ 39 The appellate court found that the State failed to demonstrate the camera was functioning properly, focusing on the fact one segment recorded for only 6 seconds yet, according to testimony at trial, the camera was set to record for at least 15 seconds after it was activated. 398 Ill.App.3d at 87, 337 Ill.Dec. 658, 922 N.E.2d 1235. It is unclear where the appellate court derived the 6-second figure. The record discloses that the first segment recorded for 12 seconds, nothing recorded for 29 seconds, then the second segment recorded for 8 seconds. In any event, the fact that the camera recorded for fewer than 15 seconds is not fatal to a finding that the camera was working properly. While the camera may not have worked perfectly, it clearly worked. As one court has stated, "[t]he fact that the tape[ ] exist[s] at all is evidence that the tape recorder was functional and that [the operator] knew how to operate it." Willett v. Russell M. Stookey, P.C., 256 Ga.App. 403, 568 S.E.2d 520, 526 (2002). Moreover, "the evidence showed that the camera was working at least well enough for the events and persons portrayed thereon to be recognizable." Smith v. State, 285 Ga.App. 658, 647 S.E.2d 346, 349 (2007). See Oslund, 453 F.3d at 1056; Robinson v. State, 621 So.2d 389 (Ala.Crim.App.1993). See also Carl T. Drechsler, Admissibility of Videotape Film in Evidence in Criminal Trial, 60 A.L.R.3d 333, § 2(a) (1974) ("[T]he fact that portions of a [recording] are inaudible or incomplete does not bar the use of the film as evidence, unless * * * [it is] so substantial as to render the film as a whole untrustworthy"); Jordan S. Gruber, Foundation for Contemporaneous Videotape Evidence, in 16 Am.Jur. Proof of Facts 3d 493, § 27, at 539-40 (1992) (videotape may have technical problems, including missing segments; however, this does not require automatic exclusion if videotape is sufficiently probative and that decision is left to sound discretion of trial judge); Jordan S. Gruber, Videotape Evidence, in 44 Am.Jur. Trials 171, § 67, at 300 (1992) (same). The State adequately demonstrated the camera and system were
¶ 40 The appellate court further found the VHS tape inadmissible because the State failed to give an explanation of the process of copying the recording from the DVR to the VHS tape. 398 Ill.App.3d at 87, 337 Ill.Dec. 658, 922 N.E.2d 1235. The Deerfield police report summary states that Annen "made a copy of the video surveillance on the hard drive, specifically the segment where Taylor was in Marsh's office[,] onto a VHS tape." The appellate court evidently refused to consider this report because, in its view, it was not "evidence." 398 Ill.App.3d at 87 n. 2, 337 Ill.Dec. 658, 922 N.E.2d 1235. This was error. It is widely recognized that when the trial court addresses preliminary questions, like the admissibility of evidence, it is not constrained by the usual rules of evidence. Ralph Ruebner, Illinois Criminal Trial Evidence 3 (4th ed.2001); 11 Ill. Prac., Courtroom Handbook on Illinois Evidence § 104.1 (2001). See also Ill. R. Evid. 104(a) ("Preliminary questions concerning * * * the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination, the court is not bound by the rules of evidence except those with respect to privileges."). What this means is: "the court may consider hearsay or other evidence that would not be admissible if offered to the jury." Lorraine, 241 F.R.D. at 539; Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 901.06(1)(c)(iii) (2d ed. 1997) ("Rule 104(a) provides that inadmissible evidence may be considered in determining preliminary questions of admissibility"). Thus, the appellate court should have considered the report in determining the admissibility of the videotape and erred when it said there was no explanation of the copying process.
¶ 41 The appellate court next found the VHS tape was not admissible because the State failed to show a sufficient chain of custody. 398 Ill.App.3d at 87-88, 337 Ill.Dec. 658, 922 N.E.2d 1235. We disagree with this conclusion as well. According to the Deerfield police report, after Annen made the VHS tape copy, he locked the VHS tape in his desk "to be later locked in an evidence locker." As discussed above, the appellate court erred in refusing to consider the Deerfield report. Second, if there are other factors demonstrating the authenticity of the recording, a strict proof of chain of custody is not necessary. See Garvey v. Chicago Rys. Co., 339 Ill. 276, 291, 171 N.E. 271 (1930) ("it is not absolutely essential that all these particular conditions be met[;] * * * they are not exclusive"). Moreover, this court has repeatedly stated, albeit in a different context, that gaps in the chain of custody go to the weight of the evidence, not its admissibility. People v. Alsup, 241 Ill.2d 266, 275, 349 Ill.Dec. 921, 948 N.E.2d 24 (2011); People v. Williams, 238 Ill.2d 125, 150, 345 Ill.Dec. 425, 939 N.E.2d 268 (2010). See also Harris, 55 M.J. at 440 ("[g]aps in the chain of custody `go to the weight of the evidence, rather than its admissibility'" (quoting United States v. Maxwell, 38 M.J. 148, 152 (C.M.A.1993))); People v. Campbell, 24 Misc.3d 82, 885 N.Y.S.2d 155, 157-58 (N.Y.Sup.App.2009) (gap in chain of custody goes to weight of evidence, not admissibility).
¶ 42 The appellate court also found the VHS tape was inadmissible based on the fact the State failed to preserve the original DVR recording. 398 Ill.App.3d at 87, 96, 337 Ill.Dec. 658, 922 N.E.2d 1235. There are several problems with the appellate court's analysis and conclusion with respect to preservation of the "original." "[W]ritings" and "recordings" are commonly identified as "letters, words, or
¶ 43 A finding that the VHS tape was not an original cannot be reconciled with these definitions. The VHS tape was made by copying the data stored on the hard drive of the DVR and, therefore, satisfies the definition of "original." See Commonwealth v. Leneski, 66 Mass.App.Ct. 291, 846 N.E.2d 1195, 1198-99 (2006) (videotapes, like photographs, are not subject to the best evidence rule and the same is true for digital images placed and stored on a hard drive and transferred to a CD; thus, a CD would be an original). The State was not required to bring the DVR system into court to show the surveillance video.
¶ 44 Lastly, the appellate court concluded that the State failed to establish that no alterations, deletions or changes had been made when the original DVR recording was copied to the videotape. 398 Ill. App.3d at 86, 337 Ill.Dec. 658, 922 N.E.2d 1235. Such a requirement is overly restrictive. Given the particular circumstances of any case, alterations, deletions, or editing may be necessary. As has been stated, "[o]f course, some editing may be necessary to make the evidence admissible in the first place." Jordan S. Gruber, Foundation for Contemporaneous Videotape Evidence, in 16 Am.Jur. Proof of Facts 3d 493, § 17, at 528 (1992). For example, unimportant, irrelevant, prejudicial, privileged and/or confidential material should be removed. See Jordan S. Gruber, Videotape Evidence, in 44 Am.Jur. Trials 171, § 17, at 221 (1992) ("Where irrelevant or prejudicial material is deleted, editing may make an otherwise inadmissable videotape admissible. Where technical difficulties or distortions are addressed, editing may make the videotape evidence more understandable and thus more useful to the trier of fact."). See also Jordan S. Gruber, Foundation for Contemporaneous Videotape Evidence, in 16 Am.Jur. Proof of Facts 3d 493, § 26, at 538 (1992) ("If a videotape contains irrelevant, prejudicial, or incompetent segments, the opponent of the evidence should request that the trial judge order the videotape edited or played back so that the jury is exposed to only fully admissible material."). In general, most editing will not render evidence inadmissable but rather will go to the weight of that evidence. Jordan S. Gruber, Foundation for Contemporaneous Videotape Evidence, in 16 Am.Jur. Proof of Facts 3d 493, § 17, at 527 (1992); Jordan S. Gruber, Videotape Evidence, in 44 Am.Jur. Trials 171, § 31, at 242 (1992). The more important criteria is that the edits cannot affect the reliability or trustworthiness of the recording. In other words, the edits cannot show that the recording was tampered with or fabricated. There is no evidence here that the VHS tape was the result of tampering or fabrication. Indeed, as the appellate court itself noted, Annen's testimony established the "recording in court was the same as
¶ 46 We find that the totality of the evidence presented demonstrates that the State laid a proper foundation for admission of the VHS tape. Accordingly, we conclude that the trial court did not abuse its discretion in admitting the VHS tape and, thus, there was no plain error. Therefore, we reverse the judgment of the appellate court and affirm the judgment of the circuit court.
¶ 47 Appellate court judgment reversed;
¶ 48 circuit court judgment affirmed.
Chief Justice KILBRIDE and Justices FREEMAN, THOMAS, GARMAN, KARMEIER, and THEIS concurred in the judgment and opinion.