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People v. Mayfield1/2/1997
e defense objected that the videotape did not fairly and accurately represent the area depicted and that it was "kind of staged." The prosecutor stated that the videotape would be used to impeach defendant.
The trial court viewed the videotape as the prosecutor explained the relevance of each portion. Apparently, the prosecutor intended to use the videotape to impeach defendant's testimony on these points:
(1) Defendant testified that while in the parking lot of the Sunstone Apartments he pulled himself up to look over a wall into the service station, saw some officers in the area where he had seen Sergeant Wolfley on the ground, and heard someone say, "If you see the mother fucker, kill him." The video would show that defendant could not have seen that area from the place where defendant said he had looked over the wall and that the wall was not so high that defendant would have had to pull himself up to see over it.
(2) Defendant testified that he left the Sunstone Apartments parking lot area by scaling a wall that was so high that he had to extend his arms and jump to grab the top of the wall. The video would show that the wall was not so high that defendant would have had to jump to reach its top edge.
The defense did not dispute the prosecution's representation that the size and position of the walls had not changed since the night that Sergeant Wolfley died, but the defense nonetheless argued that the videotape was not fair and accurate because the lighting conditions were entirely different (the videotape was made during daylight), because the vegetation had changed, and because the video camera distorted the apparent height of the walls and what could be seen from different locations.
The trial court ruled that the portions of the videotape relevant for the purposes indicated above could be admitted, but the balance should be edited out. Defense counsel then objected that the videotape was improper because the prosecutor appeared in it. Counsel suggested that taking the jury to again view the area would be preferable to showing them a videotape. Counsel also objected that the evidence was cumulative because it was the "third time through this area now with a film." The court overruled the objections, noting that portions of the videotape that it found to be cumulative would be edited out.
Later, the defense objected on yet another basis, that the videotape's probative value was outweighed by the risk of undue prejudice, and the defense requested a jury view of the area in the event the videotape was received in evidence. The trial court overruled the objection, finding that "the probative value does outweigh the undue prejudice as argued by the defendant." The court eventually granted the request for a jury view of the area shown in the videotape.
2. Sufficiency of the Foundation
To be admissible in evidence, an audio or video recording must be authenticated. (Evid. Code, § 250 [defining "Writing" to include recording], 1401 [requiring authentication of "writings"]; People v. Rich (1988) 45 Cal. 3d 1036, 1086, fn. 12 [248 Cal. Rptr. 510, 755 P.2d 960]; People v. Patton (1976) 63 Cal. App. 3d 211, 220 [133 Cal. Rptr. 533].) A video recording is authenticated by testimony or other evidence "that it accurately depicts what it purports to show." ( People v. Bowley (1963) 59 Cal. 2d 855, 859 [31 Cal. Rptr. 471, 382 P.2d 591, 96 A.L.R.2d 1178].)
Defendant argues that the prosecution failed to establish that the videotape fairly and accurately represented the scene as it existed at the time of the charged offenses because it was made during daylight hours, whereas the relevant events occurred at n
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