                           ILLINOIS OFFICIAL REPORTS
                                        Supreme Court




                                People v. Taylor, 2011 IL 110067




Caption in Supreme         THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. TERYCK
Court:                     TAYLOR, Appellee.



Docket No.                 110067
Filed                      October 6, 2011


Held                       When a videotape which contained a recognizable image of defendant
(Note: This syllabus       night watchman stealing from a locked office desk and which had been
constitutes no part of     copied from the hard drive of a video recorder that was connected to a
the opinion of the court   motion-activated surveillance camera met the foundation requirements,
but has been prepared      under the “silent witness” theory, for establishing the accuracy and
by the Reporter of         reliability of the process that produced the recording and met the
Decisions for the          definition of an “original” so as not to be subject to the best evidence
convenience of the         rule–no abuse of discretion in admission and no plain error.
reader.)


Decision Under             Appeal from the Appellate Court for the Second District; heard in that
Review                     court on appeal from the Circuit Court of Lake County, the Hon. Michael
                           J. Fusz, the Hon. Susan F. Hutchinson, the Hon. Ann B. Jorgensen and
                           the Hon. Mary Seminara-Schostok, Judges, presiding.
Judgment                   Appellate court judgment reversed;
                           circuit court judgment affirmed.
Counsel on               Lisa Madigan, Attorney General, of Springfield, and Michael J. Waller,
Appeal                   State’s Attorney, of Waukegan (Michael A. Scodro, Solicitor General,
                         and Michael M. Glick and Retha Stotts, Assistant Attorneys General, of
                         Chicago, and Patrick Delfino, Lawrence M. Bauer, Marshall M. Stevens
                         and Richard S. London, of the Office of the State’s Attorneys Appellate
                         Prosecutor, of Elgin, of counsel), for the People.

                         Michael J. Pelletier, State Appellate Defender, Thomas A. Lilien, Deputy
                         Defender, and Jack Hildebrand, Assistant Appellate Defender, of the
                         Office of the State Appellate Defender, of Elgin, for appellee.

                         Michael D. Carter, of Horwitz, Horwitz & Associates, of Chicago, for
                         amicus curiae Illinois Trial Lawyers Association.


Justices                 JUSTICE BURKE delivered the judgment of the court, with opinion.
                         Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Karmeier,
                         and Theis concurred in the judgment and opinion.



                                           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. For the reasons that follow, we reverse the judgment of the appellate court.

¶2                                       BACKGROUND
¶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

                                               -2-
       the equipment worked:
                 “Simply *** plug in the camera which was inside of a clock radio, a working clock
                 radio, that plugs into a power source. You aim that camera wherever you want to
                 observe. That camera sends a signal to the wireless transmitter which is connected
                 to the DVR which is a digital video recorder, just like a computer drive and that
                 records the images that the camera sees.”
       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


                                                 -3-
       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, stating there were five elements for admission: “capability
       of the device [for] recording, competency of the operator, proper operation of the device,
       preservation of recording with no changes, additions or deletions and identification of the
       speakers.” Defense counsel took issue with the competency of Annen, since he was not
       present when the device recorded, and with the absence of proof that the motion sensor was
       operating properly. The trial court again advised the State to lay more foundation.
¶ 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:
                    “It is because, to my knowledge, there is a time lapse, a default setting of 30
                seconds, that if the camera stops sensing motion, recording stops. As soon as it
                senses motion again, it started again. So what I am saying, if there was motion that
                the camera could not see, it would stop recording and then when he moved again, that
                being Mr. Taylor, the camera started again.
                    ***
                    The camera can only see what you are seeing. It can’t see below the desk. It
                cannot see areas of the room not in the picture. If I was below the desk and not
                moving, and there wasn’t any view, you wouldn’t be able to see any motion in the
                camera. It would not activate.”
¶ 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

                                                -4-
       the recording taken from the DVR. Specifically, he testified:
                   “Q. As this recording exists, besides focusing your recording on this specific
               incident, has it been altered in any way?
                   A. No.
                   Q. The 30 seconds that [defense counsel] referred to, do those 30 seconds exist
               on the recording?
                   A. No, they don’t.
                   Q. Why don’t they exist on the recording?
                   A. The camera only records when there is motion detected and the camera is set
               to record long enough to capture everything, I didn’t have it set long enough to record
               a longer period of time.”
¶ 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:
               “Well, your Honor, I am not an expert by any means. We had just gotten this unit,
               what I learned is that once it detected motion, it only recorded for a certain amount
               of time before it would stop if it didn’t detect any more motion.”
       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:
               “My only explanation, your Honor, is that when he [the defendant] crouched, he was
               crouched for a long enough time and still from the camera site up, he might have
               been–if he was moving his hands or doing anything below that site, it could have
               caused it to not sense any motion. As soon as he moved, that is when it kicked on
               again. You saw him rising and turning to leave the room, that is my best
               explanation.”
¶ 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 video does have a missing segment of 30 seconds. I suppose a lot of things
               could have happened in that 30 seconds. There’s no evidence that anything did
               happen other than we missed some of the activity as far as the defendant. He had the
               pouch in his hand at one point. The officer, I’m convinced, gave a reasonable
               explanation of why we’re missing that 30 seconds. I don’t see any intentional
               destruction of evidence. He explained it was the motion sensor. ***
                   But I’m satisfied the video does establish the defendant’s presence in the room
               where he had no authority to be. It shows him with the pouch, which he clearly had
               no authority to take. And that, along with the testimony about the missing money, I
               think is sufficient, even without the admissions, to convict, to establish guilt beyond
               a reasonable doubt.”


                                                -5-
       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:
                “With respect to the videotape, I think the record from the trial and my ruling on the
                motion in limine frankly addressed all of the issues that are raised in this motion. I
                viewed the videotape several times. I think we all agreed that according to the timer
                shown in the videotape, there was 30 seconds [defense counsel] referred to it as
                missing. I don’t know that I would so much refer to it as missing based on the
                explanation the officer gave. This was a motion actuated video recorder or camera.
                He testified that when it was initially installed it shut off after a period of time if
                there was no motion detected and gave an explanation for why we had a jump from
                one view of the defendant removing some objects from underneath the desk where
                the money was to be found missing, and then we showed another view again
                according to the timer starting 30 seconds later the defendant moving from that same
                position moving away and out of the room. The officer testified that he set it up, he
                was instructed as to how the video camera and recorder operated. He believed it to
                be working properly. There was no indication that this had changed in any way from
                the time he viewed it on Monday morning I believe after the money was found
                missing. *** I don’t think that frankly casts any doubt on the fact that it clearly
                showed the defendant in the room where the money was found missing, reaching
                under the desk, looking furtively about and removing an object and doing something
                with an object which appeared to be consistent with the money purse or case that the
                money was contained in.”
       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.
       Citing to People v. Vaden, 336 Ill. App. 3d 893 (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).




                                                 -6-
¶ 24                                         ANALYSIS
¶ 25                                     Standard of Review
¶ 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 (1991), we pointed out that
       videotapes are admissible on the same basis as photographs. Cisarik, 144 Ill. 2d at 342. The
       admission of photographs is entrusted to the trial court’s discretion. People v. Smith, 152 Ill.
       2d 229, 263 (1992). In People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 284 (2003), we
       noted that videotapes may be admitted if properly authenticated, which is an evidentiary
       question (Cryns, 203 Ill. 2d at 283), and we specifically stated, “[t]he admission of a
       videotape into evidence is within the sound discretion of the circuit court and will not be
       disturbed absent an abuse of discretion.” Cryns, 203 Ill. 2d at 284. See also Jordan S. Gruber,
       Videotape Evidence, in 44 Am. Jur. Trials § 53, at 277 (1992) (“admissibility ultimately turns
       on the trial judge’s judgment and discretion in interpreting the circumstances of each
       particular case”). See also People v. Williams, 188 Ill. 2d 365, 369 (1999) (reviewing courts
       should defer to trial court’s evidentiary rulings even if they involve legal issues unless “trial
       court’s exercise of discretion has been frustrated by an erroneous rule of law”); People v.
       Woods, 214 Ill. 2d 455, 471 (2005) (“[a] chain of custody is used to lay a proper foundation
       for the admission of evidence” and, thus, “a challenge to the chain of custody is an
       evidentiary issue”). Accordingly, we review the trial court’s decision to admit the VHS tape
       under the abuse of discretion standard. Under this standard, an abuse occurs when the trial
       court’s ruling is fanciful, unreasonable or when no reasonable person would adopt the trial
       court’s view. People v. Baez, 241 Ill. 2d 44, 106 (2011); People v. Illgen, 145 Ill. 2d 353, 364
       (1991).

¶ 28                                           Forfeiture
¶ 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.

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       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 (2005). In undertaking this review, it is appropriate to first
       determine whether error occurred at all. People v. Williams, 193 Ill. 2d 1, 27 (2000). We turn,
       then, to whether error occurred in this case.

¶ 31                                 Admissibility of Videotape
¶ 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 (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

                                                 -8-
       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, 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. State,
       707 So. 2d 827, 831 (Fla. Dist. Ct. App. 1998) (in determining whether recording fairly and
       accurately depicts what it purports to be, five factors considered: evidence of time and date;
       presence or absence of evidence of tampering; operating condition and capability of
       equipment as it relates to accuracy and reliability of product; operating, testing, and security
       procedures; and identification of participants depicted in recording); Edwards v. State, 762
       N.E.2d 128, 136 (Ind. Ct. App. 2002) (strong showing of authenticity and competency based
       on particular facts; with respect to automatic cameras, there must be evidence of how and
       when camera was loaded, how frequently it is activated, when photographs were taken, and
       nature of processing and chain of custody after it was removed from camera); Washington
       v. State, 961 A.2d 1110, 1116 (Md. 2008) (surveillance tapes and photographs made by
       surveillance equipment that operated automatically admissible when “a witness testifies to
       the type of equipment or camera used, its general reliability, the quality of the recorded
       product, the process by which it was focused, or the general reliability of the entire system”);
       State v. Anglemyer, 691 N.W.2d 153 (Neb. 2005) (requirement for admission does not
       require proponent to rule out all possibilities inconsistent with authenticity or reliability).
¶ 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, 186 P.3d 33
       (Ariz. Ct. App. 2008); Department of Public Safety & Correctional Services v. Cole, 672
       A.2d 1115 (Md. 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

                                                 -9-
       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 properly; failed to give an explanation of the process of copying the recording
       from the DVR to the VHS tape; failed to establish a sufficient chain of custody; failed to
       preserve the original; and failed to establish there were no alterations, deletions, or changes
       made to the original. As such, the appellate court found that the State failed to establish even
       the probability that the VHS tape had not been tampered with. We disagree with the appellate
       court’s analysis and find that the State laid a sufficient foundation for admission of the VHS
       tape.
¶ 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. 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., 568 S.E.2d 520, 526 (Ga. Ct. App. 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, 647 S.E.2d 346, 349 (Ga. Ct. App. 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,

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       § 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 able to record
       and were generally operating properly.
¶ 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. 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. 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. 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
       (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 (2011); People v. Williams, 238 Ill. 2d 125, 150 (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, 885 N.Y.S.2d 155, 157-58 (N.Y. App. Div. 2009) (gap
       in chain of custody goes to weight of evidence, not admissibility).

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¶ 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. 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
       numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating,
       photographing, magnetic impulse, mechanical or electronic recording, or other form of data
       compilation.” Lorraine, 241 F.R.D. at 577. “Photographs” include “still photographs, x-ray
       films, video tapes, and motion pictures.” Lorraine, 241 F.R.D. at 577. See also Ill. R. Evid.
       1001(2) (including “similar or other products or processes which produce recorded images”).
       An “original” of a “writing” or “recording” consists of “the writing or recording itself or any
       counterpart intended to have the same effect by a person executing or issuing it. An ‘original’
       of a photograph includes the negative or any print therefrom. If data are stored in a computer
       or similar device, any printout or other output readable by sight, shown to reflect the data
       accurately, is an ‘original.’ “ Lorraine, 241 F.R.D. at 577.
¶ 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, 846
       N.E.2d 1195, 1198-99 (Mass. App. Ct. 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. 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

                                                 -12-
       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 the one he watched with Marsh and
       Mocogni.” 398 Ill. App. 3d at 87. The appellate court’s statement demonstrates that the tape
       had not been tampered with and that the recording shown in court was the original as it was
       taken from the DVR.

¶ 45                                      CONCLUSION
¶ 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.




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