State v. Sassarini

                                        106

      Argued and submitted December 21, 2017, affirmed October 16, 2019


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                   KELLY SUZETTE SASSARINI,
                       Defendant-Appellant.
                    Curry County Circuit Court
                       15CR0292; A162811
                                    

    Defendant appeals a judgment of conviction for harassment that arose out
of a confrontation with a neighbor who was recording some of the incident with
a video camera. The neighbor provided police with a DVD that included what he
represented to be digital recordings from the confrontation. The issues on appeal
involve the digital copies on the DVD, which was eventually admitted at trial
and played for the jury. Defendant argues that the trial court committed two
errors: first, denying her motion for a continuance to allow her forensic expert to
examine the camera and its memory card, to compare the metadata of the files
on the memory card with those on the DVD; and, second, admitting the digital
recordings on the DVD over her objection that the state had failed to demon-
strate their authenticity. Held: Under the circumstances, where defendant made
a tactical decision to attack the state’s inability to establish a chain of custody for
copies of the recordings rather than obtain the memory card or camera, the trial
court did not abuse its discretion in denying the motion for a continuance. Nor did
the court err in concluding that the state met the threshold to send the question
of authentication to the jury. The state presented sufficient evidence about the
circumstances of the recordings that a factfinder could believe that they were
accurate and reliable depictions of the incident and had not been edited by the
neighbor who took them; defendant’s expert’s testimony, although raising certain
irregularities in the metadata, did not so seriously discredit the authenticity of
the recordings that no factfinder could have confidence in them.
    Affirmed.



    Jesse C. Margolis, Judge.
   Jesse Wm. Barton argued the cause and filed the briefs
for appellant.
   Jeff J. Payne, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
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  JAMES, J.
  Affirmed.
108                                        State v. Sassarini

        JAMES, J.
         Defendant appeals a judgment of conviction for
harassment that arose out of a confrontation with a neigh-
bor who was recording some of the incident with a video
camera. The neighbor provided police with a DVD that
included what he represented to be digital recordings from
the confrontation. The issues on appeal involve the digital
copies on the DVD, which was eventually admitted at trial
and played for the jury. Defendant argues that the trial
court committed two errors: first, denying her motion for
a continuance to allow her forensic expert to examine the
camera and its memory card, to compare the metadata of
the files on the memory card with those on the DVD; and,
second, admitting the digital recordings on the DVD over
her objection that the state had failed to demonstrate their
authenticity. For the reasons explained below, we hold that,
under the circumstances, the trial court did not abuse its
discretion in denying the motion for a continuance, and that
the state presented evidence sufficient to support a finding
that the DVD included authentic copies of the camera’s dig-
ital recordings. We therefore affirm.
                      BACKGROUND
         We begin with a summary of the historical context
in which the charges and the procedural and evidentiary
questions arose. Defendant and Walker were neighbors in a
rural area. Their relationship soured over several months,
first because of disputes about dogs running loose on defen-
dant’s property, and then about defendant’s effort to con-
struct a fence, which Walker believed was violating deed
restrictions and being built on land that was not defendant’s.
        Those disputes culminated in a physical altercation
between the two on the morning of June 10, 2014, over the
dismantling of an old gate at the site where the new fencing
was being built. Deputy McAllister responded to a distur-
bance call and found Walker at home. Walker was bleeding
from his lower right leg, and he reported that defendant had
come from behind him, kicked him in the leg, and knocked
him to the ground; while he was on the ground, defendant
grabbed his hair and shoved his face into the dirt. He fur-
ther reported that, after the assault, defendant’s partner,
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Johnson, had reached inside Walker’s car, removed the keys
from the ignition, and thrown them into the brush, which
required Walker to crawl through the brush back to his
home. Walker told McAllister that he had a video camera
with him during the incident, but McAllister did not seize
the camera at that time.
         McAllister got a different story from defendant. Defen-
dant told him that Walker was yelling in her face, that she
felt threatened, and that she grabbed Walker by the hair
and “laid” him down to the ground. She denied causing any
injuries and surmised that he injured his leg while return-
ing home. Defendant said that Johnson had taken Walker’s
keys and thrown them out of fear that Walker would use the
car as a weapon.
          The next day, Walker told McAllister that he had
camera recordings of the assault to show him. McAllister
returned to Walker’s home, and Walker played three digital
files on his home computer (through another machine, which
we will discuss later). The first file was a 34-second video
that shows Walker approaching a closed gate on a road, and
defendant to the right of her truck with a gun. The second
file was a video less than a second long, which shows little
of anything. The third file was a video that shows only color
bars and 20 seconds of audio.
         After playing the files for McAllister, Walker pro-
vided him with a DVD that purportedly contained digi-
tal copies that Walker had made of those files. That DVD
was defective, however, and the video was distorted when
police attempted to play it. Four days later, Walker provided
McAllister with a second DVD, again purportedly copies of
the same three files that Walker had played for McAllister.
McAllister booked that DVD into evidence.
         Defendant was eventually charged with fourth-degree
assault and harassment. During discovery, the state pro-
vided defendant with a copy of the digital files on the DVD
that McAllister booked. On July 10, 2016, four days before
the scheduled trial date, defendant filed a motion in limine
to exclude the recordings on the DVD, “on the grounds that
the state cannot prove an adequate foundation to estab-
lish the chain of custody, and on the further grounds that
110                                           State v. Sassarini

the state cannot adequately authenticate the recordings as
required by OEC 901.” In a memorandum in support of her
motion, defendant explained that five days passed between
the incident and when Walker provided the DVD, that there
were three files rather than the single video of the incident
that one would expect, and that the state could not establish
a chain of custody for the videos. Defendant also explained
that she had sent the files to an expert in analyzing the
authenticity of audio and video files, Edward Primeau, who
“concluded that the three files are not authentic, original dig-
ital video recordings.” Defendant attached Primeau’s report,
which stated, “Because no information was given about the
device or the handling of the evidence, I cannot determine
the authenticity of the chain of custody.”
         The motion in limine was heard on the day sched-
uled for trial. To establish the chain of custody, the state
called Walker as its first witness and elicited testimony
identifying the Sony XD Cam he used to record the videos.
The state then sought to admit the camera as an exhibit,
but defendant objected on the ground that only the DVD—
and not the camera itself—had been produced by the state
during discovery:
   “[W]e object in that this is the first time we’ve known this
   camera actually exists. We—I did have a communication
   with [the prosecutor] some months ago to determine that
   the three files that we had was all that was in the—in the
   State’s evidence. We—we were never informed, as you’ve
   read my—my expert’s report, is that having the camera,
   uh, and knowing what type of camera it is, is an essen-
   tial part of doing his analysis, uh, so I would object to the
   admission of the camera simply because we haven’t had an
   opportunity to examine it or to have my expert examine it.”
The trial court overruled the objection and admitted the
exhibit for the purposes of the hearing. Nonetheless, the
prosecutor at that point interjected, “And, Your Honor, just
for the record, * * * today is the first time the State has seen
this camera. I asked that it be brought in today, given the
nature of the hearing.”
        The prosecutor then handed Walker the DVD that
McAllister had booked into evidence, which was marked as
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Exhibit 1. Walker testified that he had viewed the contents
of that DVD and that it was “an accurate representation of
what happened” on the day of the altercation, both “visu-
ally” and “audibly.” When the state then offered Exhibit 1,
defendant asked that it first be played in court so that she
could decide whether to object to it being received.
         After Exhibit 1 was played in court, defendant
voiced a concern that it was not the same as the DVD she
had received during discovery. She explained that, whereas
all three videos on Exhibit 1 played continuously, the videos
on her copy did not. The court then asked the prosecutor
about the creation of the copy provided to defendant, and he
explained that the sheriff’s office had combined the videos
from Walker and a separate video from the deputy’s in-car
camera onto a single DVD to provide to defendant. At that
point, the trial court surmised that some of the authentic-
ity issues identified in Primeau’s report could be attributed
to the process used by the sheriff’s office to copy the files,
and that those concerns could be put to rest by comparing
the three versions of the videos: the state’s DVD (Exhibit 1),
defendant’s DVD, and the version on the memory card of the
camera.
         After defendant again pointed out that her expert
had not had an opportunity to review “whatever the sher-
iff’s department received before they put it through their
software,” the court stated:
      “Well, that’s a different issue. I guess—I don’t recall
   seeing a motion to compel or any discovery issue coming up
   before. The camera is here now. We can look at what’s on
   the camera.
      “* * * * *
       “My concern—my concern is whether or not what the
   State wants to show to be authenticated for purposes of
   this hearing and the chain of custody issue is important
   too but if the video that’s on the camera and the video that’s
   on the DVD, visually to me it looks the same, there’s probably
   not a lot to argue about. If it’s different then your point will
   be well taken.”
(Emphasis added.)
112                                               State v. Sassarini

        Defendant reiterated that her expert had not had
a chance to examine the “metadata underneath” the files
and that she was only learning now, “at this late date that
there was actually * * * a file that was created in there [the
camera] that was somehow transferred to another DVD that
was transferred several times.” The court again dismissed
that concern based on the fact that defendant should have
been aware of the existence of an original recording device
but never pursued the discovery issue:
       “[That file creation/transfer process] is common and I’m
   quite certain that you are aware that some sort of device
   recorded this video and there’s no discovery or motion to
   compel regarding getting your hands on the device that’s
   in the court file. So, I’m not really concerned with the fact
   that that wasn’t provided to you before—even if you asked
   the DA’s office for it, you didn’t deal with that prior to trial.”
After further colloquy about whether defendant had asked
the state for the “video file itself that came out of the cam-
era,” the court adhered to its view that it would not “deal
with your discovery issues at this point” and that they would
play defendant’s DVD to compare it to the state’s Exhibit 1.
         After defendant’s DVD was played, the court asked
whether the prosecutor could also “play what’s on the cam-
era” and encouraged him to ask Walker about that possi-
bility. The prosecutor then returned to his examination of
Walker, beginning with questions about what had just been
played in court. Walker testified that the recording “abso-
lutely” matched the original recordings on his video cam-
era. According to Walker, the camera was broken during the
assault, and he removed the memory card from the cam-
era on the night of the assault or early the next day. He
then transferred the three files from the memory card to his
computer through “Sony XD cam transfer,” which he was
able to play for McAllister. Walker testified that he took the
“original”—meaning the memory card—to someone named
Jason Lefebvre to transfer to a DVD for the sheriff’s office,
and that Walker then kept the memory card.
         Eventually, the state played in court the video clips
on the memory card through the camera’s screen. Walker
testified that he had not “in any way altered the digital
images or vocal images that are recorded” on the camera.
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         Before cross-examining Walker, defendant asked
for a recess to speak with her expert. After that break,
defendant renewed her request for a longer recess—a week
to allow her expert to examine the camera. After the court
denied that motion, defendant asked for a recess for the rest
of the morning. The court denied that request as well, stat-
ing that “[h]e can look at it during a break.” The parties
then had another extended discussion about what defendant
had requested during discovery. The court asked, “Did you
specifically ask for the metadata or the recording device?”
Defense counsel responded, “Uh, no. We have the meta—we
got the metadata because we—from the file—that’s what my
expert does.”
        The prosecutor acknowledged that defendant may
have asked for the original recording but reiterated that
he had never understood defendant to have requested the
memory card or camera, which were not in the state’s pos-
session until that morning. He explained:
   “And—and had I understood that they wanted to actually
   examine the—the camera and the original memory thing
   that we could have made some sort of an arrangement, but
   I—at least I didn’t understand that. Maybe that’s—maybe
   that’s my fault. I don’t know.”
Defendant also asserted that she had requested “all exhib-
its and this is now become a—this will be an exhibit at the
trial. So, certainly, I asked for those things in my initial
request for discovery.” The prosecutor responded that he
was not intending to offer the camera and memory card at
trial, but only the recordings on Exhibit 1, the state’s DVD.
        Defendant then cross-examined Walker. During that
examination, Walker testified that the color bars, which
appear on the third of the files, occurred when the camera
was somehow jarred. Walker admitted that he could not
explain the mechanism by which the color bars appeared.
        Two other witnesses testified at the hearing on
the motion in limine: McAllister and defendant’s expert,
Primeau. McAllister testified about observing the record-
ings at Walker’s home as they were played through the
Sony machine, and he testified that “the imagery that
[he] observed then was the same as what was observed on
114                                           State v. Sassarini

State’s Exhibit 1 today.” On cross-examination, he testified
that he had no personal knowledge of what happened to
the recordings between the time that he watched them at
Walker’s home on June 11 and when a disc was delivered to
the sheriff’s department on June 15. However, on redirect,
McAllister testified that he had viewed the video delivered
on June 15 and that it was “the same as the one [he] saw on
the 11th” and “the same as State’s Exhibit 1 today.”
         Primeau then testified about his review of defen-
dant’s DVD. He explained that, after watching the three
videos on that DVD, he was suspicious that the color bars in
the third video had been added through a menu on the cam-
era or through an editing program. He was asked whether
it was possible for color bars to automatically appear when a
camera is dropped, and he responded, “I have not seen that
before, no.” This exchange with the court followed:
      “THE COURT: So—hold on. You say you haven’t seen
   that before or is it not possible? You answered both. Is that
   what you meant?
      “* * * * *
      “MR PRIMEAU: I don’t know if it’s possible, Your
   Honor. I would have to recreate that in order to be able to
   testify on that.”
Later, Primeau explained that he was “not familiar with the
Sony one” that Walker used but that, in most of the cam-
eras Primeau had examined, the color bars do not appear
automatically in the middle of a recording. When asked for
his opinion on the origin of the color bars, Primeau stated:
“Well, prior to today, my opinion was that I believed that
they were added to the recording, post recording[.]”
        Primeau also testified about his examination of the
metadata of the files on defendant’s DVD. He explained that
“[m]etadata is like the back door to a digital video file. It has
information about the file, uh, such as the equipment that
created it, the date and time that it was created. The rate.
The size of the video. The frame rate of the video. It’s a lot of
information that helps me be able to authenticate the video.”
Primeau explained that, using a tool known as an EXIF
Interpreter, he was able to extract the metadata for the three
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files and discovered a lack of information about the make
and model of the camera and internal discrepancies in date
and time readings—the date of June 9, 2014 (a day before
the incident), along with the time of 9:59 appears “in several
different displays within this reading” but “the first date at
the top of the reading shows 6/9/2014, but it’s 1 o’clock. So,
we’ve got a conflict between 1 o’clock and 10:00 a.m.”
        The court asked Primeau about the significance of
some of those discrepancies:
       “THE COURT: Well, it may be a concern but I’m try-
   ing to figure out why it’s a concern and what that means
   for your testimony. With the different time, do you know
   why—can you say why it is that there’s * * * different time
   information on—in the metadata?
      “MR. PRIMEAU: No. Not without examining the orig-
   inal equipment that creat[ed] it.
      “THE COURT: So, you—you don’t have an opinion
   about why it’s different?
      “MR. PRIMEAU: It could be different because it was
   accessed at 1 o’clock in the afternoon. Maybe it was opened.”
          When asked for his ultimate opinion on the authen-
ticity of the files, Primeau testified as follows:
      “[DEFENSE COUNSEL]: Sir, do you have an opinion
   then, uh, based on what you heard today, and based on
   the—the review that you’ve done of the files, do you have
   an opinion about whether or not the files that you reviewed,
   that were provided to us in discovery, were authentic?
       “[PRIMEAU]: The files that I reviewed prior to coming
   to testify today, that we were giv[en] on the disk, I had con-
   cern and did not believe they were authentic.
      “[DEFENSE COUNSEL]: Okay. And, uh, was there—
   and can you determine whether or not the files that we saw
   today are authentic without examining the camera and the
   original media?
      “[PRIMEAU]: No.”
        After Primeau testified, the parties argued the
merits of the motion in limine. The state explained that
Walker had testified that the DVD recordings on Exhibit 1
116                                             State v. Sassarini

accurately depict what happened on the day of the incident;
that McAllister had observed the recordings the day after
the incident and said Exhibit 1 depicted the same record-
ings that he saw; and that Walker had been able to identify
defendant and Johnson’s voices on the recordings. Defendant
responded that the state had left too many gaps in the chain
of custody during the five days between the incident and
when Exhibit 1 was in the state’s hands, and that Primeau’s
testimony—that the metadata had changed and was inter-
nally inconsistent on defendant’s version—demonstrated
“an issue” with the video recording.
        The court ruled that the state presented a sufficient
showing of authenticity to send Exhibit 1 to the jury. The
court explained that all of the videos looked the same on
a video screen, even though the “metadata underlying that
video is perhaps different.” And, the court explained, the
problems with the metadata did not themselves show that
the video recording had been altered, particularly after the
memory card was produced and its contents viewed:
   “The expert had some red flags, based upon the information
   that he had, * * * but there are multiple reasons why the—
   for instance, the camera information might not be there or
   why this might be an .mp4 file, as opposed to another pro-
   prietary type of file. I think it was clear to the expert prob-
   ably when he first started looking at the metadata that this
   was not the media taken from the camera directly. That’s
   clear to everybody. But that’s not necessarily a sign that
   this video has been tampered in a way that would impact
   its admissibility or reliability. There isn’t really evidence
   from this hearing today that would convince the Court that
   that’s what has happened and that, again, is because of the
   memory card from the camera being produced as an exhibit
   here. * * * [T]here’s not a showing that [the memory card
   was modified or changed] by the defense here. There is a
   showing that this is reliable, there’s testimony or that this
   is an accurate recording. That showing has been made.
   The jury can make the decision about whether * * * the video
   recording is an accurate recording or not. So, the video
   recording is admissible.”
(Emphases added.)
       Pursuant to the court’s ruling, Exhibit 1 was later
admitted at trial and played for the jury. The jury acquitted
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defendant of fourth-degree assault but convicted her of
harassment. She appeals the ensuing judgment of conviction.
                         ANALYSIS
A. First Assignment of Error
         On appeal, defendant first assigns error to the trial
court’s denial of her motion for a continuance to allow time
for her expert to analyze the camera and the memory card.
According to defendant, she had no reason to know until the
morning of the hearing on the motion in limine that the mem-
ory card existed. In her view, those “unanticipated circum-
stances” required the court to grant a continuance regard-
less of whether it was made on the day of trial, because the
court’s denial of her motion prevented her from adequately
preparing and investigating her case. We disagree.
         “We review a trial court’s denial of a motion for con-
tinuance for abuse of discretion.” State v. Thomas, 

, 

 (2014). “[W]e determine the pro-
priety of the motion by examining the circumstances of the
case and the reasons presented to the court at the time that
it denied the request.” State v. Stull, 

,

 (2016), rev den, 

 (2017); see also State
v. Kindler, 

, 

 (2016) (mind-
ful of the “demands of managing trial dockets, we have his-
torically been loath to second-guess trial courts’ denials of
motions for postponement or continuance”).
        Defendant is correct that “unanticipated circum-
stances” may require a trial court to grant a continuance,
even on the date scheduled for trial. See Phillips v. Premo,

, 

 (2016) (“Unanticipated
circumstances can arise, and a trial court cannot deny a
motion for a continuance simply because the motion is made
on the day of trial[.]”); State v. Hickey, 

,

 (1986) (holding that the court should have
granted a continuance where the attorney’s case file had
been stolen the night before trial). Here, however, defendant
has not demonstrated the type of unanticipated circum-
stances that would have obligated the trial court to grant a
continuance.
118                                        State v. Sassarini

         We begin by noting what defendant is not arguing.
She is not arguing that a continuance was required because
of a discovery or Brady violation by the state; she concedes
that “until the date of the hearing, Walker, not the state,
had the camera and the memory card.” Nor is she arguing
that the state had an obligation to obtain the original from
Walker. Instead, she argues that there was no reason for her
to have anticipated, and no way for her to have obtained, the
evidence that was in Walker’s possession before the hearing.
         As the trial court repeatedly pointed out in its col-
loquy with counsel, defendant must have known that the
DVD provided by the state was not the original source of
the recordings; the camera was not likely to have recorded
directly to a DVD, and her expert had identified the absence
of and need for the original to establish authenticity of the
copy. In short, defense counsel must have known that the
copy in possession of the state, the same copy produced in
discovery, was just that—a copy. But, rather than make any
effort to obtain the original memory card and camera from
Walker directly, or to confirm that the camera and memory
card no longer existed, defendant instead made a tactical
decision to attack the state’s inability to establish a chain
of custody for the copies that were made. The court was not
required, under those circumstances, to relieve defendant
of the consequences of her tactical decisions—particularly
when there were available avenues for defendant to have
sought the evidence. See State v. Bray, 

, 

 (2018) (stating that “ORS 136.580 provided a statu-
tory basis for defendant’s subpoena of [a witness’s] computer
and the digital evidence it contains”).
         The court also rejected defendant’s suggestion that
the prosecutor’s responses to her discovery requests had led
her to believe that the camera and memory card did not exist.
The court determined that the prosecutor reasonably under-
stood those requests to pertain to the recordings themselves
and not the memory card or the camera, and the prosecutor
had not misled defense counsel when communicating about
the recordings. Those determinations about the parties’ pre-
trial communications are not clearly against the evidence
and reason. Cf. Forsi v. Hildahl, 

, 

 (2004), rev den, 

 (2005) (“The trial court
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abuses its discretion if it exercises that discretion in a man-
ner that is unjustified by, and clearly against, reason and
evidence.”).
          In sum, the question before us is not whether, on
this record, we would have denied the motion for a continu-
ance to allow defendant’s expert to examine the camera and
memory card. Under our deferential standard of review, the
question is whether the trial court acted outside the bounds
of its discretion in determining that defendant should have
sought production of the camera and memory card sooner
rather than delaying trial in a misdemeanor case that was
already over a year old. Under the totality of the circum-
stances, we cannot say that the trial court did so, and we
therefore reject defendant’s first assignment of error.
B.   Second Assignment of Error
         In her second assignment, defendant argues that
the trial court erred in denying her motion in limine to
exclude the digital recordings. Defendant argues that the
state failed to meet the burden for authenticating recordings
under the multi-part test set forth in this court’s decision
in State v. Miller, 

, 

 (1971). The
state responds that Miller was superseded by the enactment
of OEC 901, which now governs authentication and “merely
requires the proponent to submit evidence ‘sufficient to sup-
port a finding that the matter in question is what its pro-
ponent claims.’ ” (Quoting OEC 901(1).) For reasons we will
explain, we conclude that neither party is wholly correct
as to how OEC 901 and Miller apply in this circumstance.
Nevertheless, we conclude that the trial court correctly
ruled that the state’s evidence was sufficient under OEC 901
to authenticate the digital recordings on Exhibit 1.
         The parties’ competing arguments regarding OEC
901 and Miller implicate one of the more challenging eviden-
tiary questions of the modern world: When can we trust digi-
tal evidence? See generally Jill Witkowski, Can Juries Really
Believe What They See? New Foundational Requirements
for the Authentication of Digital Images, 10 Wash U J L &
Pol’y 267 (2002); accord State v. Mansor, 

,

 (2018) (“Sophisticated users can hide digital
data in much more complex ways, including changing date
120                                           State v. Sassarini

and time metadata and encrypting files so that they can-
not be opened.” (Citing Orin S. Kerr, Executing Warrants for
Digital Evidence: The case for use restrictions on nonrespon-
sive data, 48 Tex Tech L Rev 1, 16 (2015) (“Data can always
be changed. Maybe the modification will be easy or maybe
it will be hard. But it can always be done.”).)). As Professor
Kirkpatrick has observed,
       “With modern technology, particularly digitization,
   it has become easier to manipulate, distort and fabricate
   all forms of photographic imagery. Enlargements, filtered
   lenses, cropping, varied focal length, and changed lighting
   conditions provide opportunities for manipulation which
   may be detectable, if at all, only by a sophisticated viewer.
   For this reason, commentators have properly urged courts
   to exercise greater care and, in cases of doubt, to demand
   a stricter foundation for photographic evidence and some-
   times to give the jury cautionary instructions.”
Laird C. Kirkpatrick, Oregon Evidence § 901.04[2][e] at 956-
57 (6th ed 2013). Our analysis, however, must be grounded
in the Oregon Rules of Evidence.
           In turning to those code provisions, it is import-
ant to distinguish between two related, but sometimes con-
fused, concepts, one of which—authentication—is at issue
in this case, and the other of which—originality—is not.
Under OEC 1002, “[t]o prove the content of a writing, record-
ing or photograph, the original writing, recording or photo-
graph is required, except as otherwise provided in ORS
40.550 to 40.585 or other law.” For purposes of that rule, the
“ ‘[o]riginal’ of a writing or recording is the writing or record-
ing itself or any counterpart intended to have the same effect
by a person executing or issuing it.” OEC 1001(2).
         One of the listed exceptions in OEC 1002 to the
requirement of an “original” is for “duplicates.” A “duplicate”
is “a counterpart produced by the same impression as the
original, or from the same matrix, or by means of photogra-
phy, including enlargements and miniatures, by mechanical
or electronic re-recording, by chemical reproduction, by opti-
cal imaging or by other equivalent techniques that accurately
reproduce the original * * *.” OEC 1001(1) (emphasis added).
Under OEC 1003,
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      “[a] duplicate is admissible to the same extent as an
   original unless:
       “(1) A genuine question is raised as to the authenticity
   of the original; or
      “(2) In the circumstances it would be unfair to admit
   the duplicate in lieu of the original.”
         In this case, the state sought to introduce digital
copies of files on Exhibit 1 that were originally stored on the
camera’s memory card. Thus, the questions of admissibility
are two-fold: First, are the digital files on the DVD “dupli-
cates”—i.e., are they accurate copies of the original files on
the memory card. Second, if so, is there a genuine question
raised as to the authenticity of the original files, or do the
circumstances make it unfair to admit the recordings on the
DVD in lieu of the files on the memory card?
         Although defendant has not explicitly framed her
arguments in those terms, we understand her challenge to
be one related to the “authenticity of the original,” and not
whether Exhibit 1 is an accurate copy of what appears on
the memory card or whether it was unfair under the cir-
cumstances to admit Exhibit 1 rather than the memory
card itself. In her motion in limine, defendant challenged
the “authenticity” of the video recordings without differen-
tiating between the authenticity of the files on the mem-
ory card and the accuracy or authenticity of the process of
duplication to the DVD. The implication from defendant’s
challenge was that Walker edited the videos at some point,
either through the camera’s menu or in an editing program
on his computer, and that the state had not established that
the recordings on Exhibit 1 were accurate depictions of the
events during the incident.
        At the hearing, however, the state offered the mem-
ory card and played the recordings directly from the memory
card. The trial court watched the videos and concluded that
they were the same clips that were depicted in Exhibit 1.
That, along with testimony from Walker that the files were
copied from the memory card without alteration and were
provided to the state, is sufficient under the circumstances
to establish that the three files on Exhibit 1 are accurate
122                                           State v. Sassarini

copies and qualify as “duplicates” of what appeared on the
memory card, and we do not understand defendant to con-
tend otherwise on appeal.
         Defendant’s argument on appeal, instead, is that
the state failed to prove that the “root source”—the files on
the memory card—were authentic. That brings us to the
parties’ dispute over the requirements for authentication
under OEC 901 and the continuing import of Miller.
         OEC 901(1) provides that “[t]he requirement of
authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support
a finding that the matter in question is what its proponent
claims.” Subsection (2) then provides an illustrative list of
ways that the requirements of subsection (1) are satisfied:
       “(2) By way of illustration only, and not by way of lim-
   itation, the following are examples of authentication or
   identification conforming with the requirements of subsec-
   tion (1) of this section:
     “(a) Testimony by a witness with knowledge that a
   matter is what it is claimed to be.
       “(b) Nonexpert opinion as to the genuineness of hand-
   writing, based upon familiarity not acquired for purposes
   of the litigation.
      “(c) Comparison by the trier of fact or by expert wit-
   nesses with specimens which have been authenticated.
      “(d) Appearance, contents, substance, internal patterns
   or other distinctive characteristics, taken in conjunction
   with circumstances.
      “(e) Identification of a voice, whether heard first-
   hand or through mechanical or electronic transmission or
   recording, by opinion based upon hearing the voice at any
   time under circumstances connecting it with the alleged
   speaker.
      “(f) Telephone conversations, by evidence that a call
   was made to the number assigned at the time by the tele-
   phone company to a particular person or business, if:
       “(A) In the case of a person, circumstances, including
   self-identification, show the person answering to be the one
   called; or
Cite as 

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      “(B) In the case of a business, the call was made to a
   place of business and the conversation related to business
   reasonably transacted over the telephone.
       “(g) Evidence that a writing authorized by law to be
   recorded or filed and in fact recorded or filed in a public
   office, or a purported public record, report, statement, or
   data compilation, in any form, is from the public office
   where items of this nature are kept.
      “(h) Evidence that a document or data compilation, in
   any form:
      “(A) Is in such condition as to create no suspicion con-
   cerning its authenticity;
       “(B) Was in a place where it, if authentic, would likely
   be; and
      “(C) Has been in existence 20 years or more at the
   time it is offered.
      “(i) Evidence describing a process or system used to
   produce a result and showing that the process or system
   produces an accurate result.
      “(j) Any method of authentication or identification
   otherwise provided by law or by other rules prescribed by
   the Supreme Court.”
          The rule sets forth the “well-accepted requirement
that whenever a piece of evidence is offered there must be
certain minimum assurances that the evidence is what it
purports to be, what it is offered as being[,] and what its
value depends on.” Legislative Commentary to OEC 901,
reprinted in Oregon Evidence § 901.02 at 947. The official
commentary to OEC 901 reflects that its drafters intended
the “treatment of authentication and identification” to
“draw[ ] largely upon common law and statutes to illustrate
the general principle set forth in subsection (1) of this sec-
tion.” Id.
         One of those common-law cases was Miller, which
was specifically cited in the official commentary. Id. at 949.
In Miller, the defendant made two tape-recorded statements,
which were admitted after the detective who took the state-
ments testified that they accurately related what was said. 

. The defendant argued that the state failed to
124                                              State v. Sassarini

lay a proper foundation for the audio recordings, relying on
the “strict foundation requirements” set forth in Evidence,
29 Am Jur 2d 494, 495, § 436 (1967):
   “ ‘* * * (1) a showing that the recording device was capable
   of taking testimony; (2) a showing that the operator of the
   device was competent; (3) establishment of the authentic-
   ity and correctness of the recording; (4) a showing that
   changes, additions, or deletions have not been made; (5) a
   showing of the manner of the preservation of the recording;
   (6) identification of the speakers; and (7) a showing that the
   testimony elicited was voluntarily made without any kind
   of inducement * * *.’ ”
Miller, 

.
          Before addressing the applicability of those factors,
Miller turned to earlier Oregon cases and explained that
once “ ‘the accuracy of the recording device and the identity
of the person speaking are fully established * * * the record-
ing of an incriminating statement * * * is as much entitled to
be received in evidence as a photograph of an object, a person
or a place.’ ” 

 at 370 (quoting State v. Reyes, 

, 

, 

, 

 (1957)). Miller
then held that “[i]t has long been established that a photo-
graph is entitled to be received in evidence when a witness
testifies that the photograph accurately depicts the object,”
and that “[w]e see no reason why the same rule should not
be applied here.” 

 (citing Supreme Court cases indicating
that “common sense should be used in such matters”).
         Miller then went on to consider the detective’s testi-
mony under the seven-factor test described above, conclud-
ing that it was sufficient to send the question of the accuracy
of the tapes to the jury:
       “The testimony of the detective that the tapes are accu-
   rate is sufficient evidence for fulfillment of the first five of
   the seven tests repeated from the quotation in 29 Am Jur
   2d at 494, 495 supra. The sixth and seventh tests were sat-
   isfied by other testimony at the trial. Also, the jury had an
   opportunity to compare the defendant’s voice when he was
   on the witness stand with the voice on the tapes.
      “Under the facts of this case it was up to the jury to
   determine whether the tapes were accurate. That is what
Cite as 

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    the court said in an identical situation in Todisco v. United
    States, 298 F2d 208, 211 (9th Cir 1961), cert den, 

, 

, 

 (1962). See also People v.
    Spencer, 60 Cal 2d 64, 31 Cal Rptr 782, 

,
    cert den, 

 (1963), and People v. Dupree, 156 Cal
    App 2d 60, 

 (1957), and Annotation, 

 (1958).”

.
         As we recently explained in State v. Noorzai, 

, 

 (2018), opinion vac’d,
appeal dismissed, 

, 

 (2018),1
Miller looked to the seven-factor test but actually was part
of a line of cases representing a “more flexible” approach to
authentication:
        “Historically, a party seeking to establish the authentic-
    ity of an audio recording was required to make a litany of
    showings, including that the recording device was capable
    of taking testimony; that the operator of the device was com-
    petent; that no changes, additions, or deletions were made;
    and that the recording was preserved. Miller, 

; see also United States v. McKeever, 

 (SD NY 1958), rev’d on other grounds, 271 F2d 669 (2d
    Cir 1959) (listing the same requirements). Although the
    traditional foundation also included the requirement that
    the proponent establish the ‘authenticity and correctness
    of the recording,’ Miller, 

, Kirkpatrick has
    explained that a party fulfills that requirement by fulfill-
    ing the others. Kirkpatrick, Oregon Evidence § 901.04[2][d]
    at 955.
       “More recently, many courts have moved away from
    a strict adherence to those requirements and approved a
    more flexible approach. See, e.g., Miller, 

-
    71, 

 (concluding that testimony of detective
    who recorded the defendant’s statements that recordings
    were ‘accurate’ satisfied five of the seven traditional fac-
    tors); United States v. Stephens, 

    (ND Ga 2002) (noting traditional requirements but clarify-
    ing that they are not a ‘rigid formula for admission’ in the
    Eleventh Circuit); United States v. Green, 

, 830

    1
      We recognize that Noorzai was vacated after the defendant moved to dis-
miss his appeal, and it is not binding precedent. Nonetheless, its description of
the evolution of our cases in this area remains helpful.
126                                          State v. Sassarini

   n 3 (10th Cir 1999) (recognizing that the McKeever factors
   may assist judges in ruling on foundation questions, but
   that they are not prerequisites for the admission of sound
   recordings).”

          That more flexible approach to authentication is cod-
ified in OEC 901, in which the examples provided in subsec-
tion (2) “are not exclusive allowable methods but are meant
to guide and suggest, leaving room for growth and devel-
opment in this area of the law.” Legislative Commentary
to OEC 901, reprinted in Oregon Evidence § 901.02 at 947.
That is, as we understand OEC 901, particularly in light
of the official commentary to that rule, the requirements
for authentication in Oregon will depend on the particu-
lar circumstances and the nature of the evidence that is
offered.
         In the case of digital recordings, the factors described
in Miller are neither as rigid as defendant proposes, nor are
they irrelevant, as the state treats them on appeal. The leg-
islature was aware of, and intended to preserve, the princi-
ples described in Miller, and the factors listed in that case
are apt considerations in determining whether a reasonable
person would be satisfied that a digital recording is, in fact,
what the proponent claims it to be. Whether the recording
is digital or analog, its authenticity will depend on factors
such as whether the device was capable of making a reliable
recording; the operator was competent; the recording itself
was authentic and correct; no changes, additions, or dele-
tions had been made; the recording was preserved; when
necessary, it is possible to identify speakers and actors in
the recording; and, when offered to show purportedly volun-
tary statements, the recording depicts statements that were
not made by inducement.
          On the other hand, the showing necessary to sat-
isfy those factors is not as demanding as defendant con-
tends. OEC 901 does not require the proponent of evidence
to persuade the trial court as to each of the requirements
in Miller. Rather, it requires the proponent of evidence to
establish a prima facie case of authenticity—“evidence suffi-
cient to support a finding that the matter in question is what
its proponent claims.” OEC 901(1) (emphasis added). Where
Cite as 

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a proponent has made that prima facie showing, the matter
of authenticity is one for the ultimate factfinder at trial, not
a preliminary ruling by the court. See OEC 104(2) (“When
the relevancy of evidence depends upon the fulfillment of a
condition of fact, the court shall admit it upon, or subject to,
the introduction of evidence sufficient to support a finding of
the fulfillment of the condition.”); Legislative Commentary
to OEC 901, reprinted in Oregon Evidence § 901.02 at 946
(“This requirement of showing authenticity or identity falls
in the category of relevancy dependent upon fulfillment of a
condition of fact and is governed by the procedure set forth
in subsection (2) of section 5 (Rule 104) of this Act.”).

          Here, the state met that threshold to send the ques-
tion of the authenticity of the recordings to the jury. See
State v. Divito, 

, 

, rev den,

 (2002) (explaining that “we review for legal suf-
ficiency of the foundational evidence” when the question is
authentication). Crediting Walker’s testimony at the pre-
trial hearing, a factfinder could infer that Walker used a
Sony camera to record the incident, and that the camera was
capable of taking audio and video, and then capable of tak-
ing reliable audio with color bars after it was dropped; that
Walker knew how to use the camera competently; that the
recordings on the memory card, including the color bars on
one of the videos, were the product of the recording process
and not his own editing; that the recordings were, as Walker
testified, “an accurate representation of what happened” on
the day of the altercation, both “visually” and “audibly”; that
the files on the memory card were preserved and not altered
by Walker between the time of the recording and the time
of trial; and that Walker could reliably identify the speak-
ers in the videos, including the recording with color bars.
A factfinder could further infer, from the circumstances of
the recordings, that the statements on the recordings were
not the product of inducement but were the voluntary state-
ments of the speakers.

         Contrary to defendant’s view, his expert’s testimony
did not so seriously discredit the authenticity of the record-
ings that no factfinder could have confidence in them. The
ease with which digital recordings can be manipulated or
128                                                       State v. Sassarini

edited is unquestionably a relevant consideration in deter-
mining the authenticity of a file, and metadata may play an
important role. In Lorraine v. Markel Am. Ins. Co., 241 FRD
534, 547-48 (D Md 2007), the court explained the role that
metadata can play in authentication under the federal coun-
terpart to Rule 901:
       “Another way in which electronic evidence may be
    authenticated under Rule 901(b)(4) is by examining the
    metadata for the evidence. Metadata,

        “ ‘commonly described as “data about data,” is defined as
        “information describing the history, tracking, or man-
        agement of an electronic document.” * * * Some exam-
        ples of metadata for electronic documents include: a
        file’s name, a file’s location (e.g., directory structure or
        pathname), file format or file type, file size, file dates
        (e.g., creation date, date of last data modification, date of
        last data access, and date of last metadata modification),
        and file permissions (e.g., who can read the data, who
        can write to it, who can run it). Some metadata, such as
        file dates and sizes, can easily be seen by users; other
        metadata can be hidden or embedded and unavailable
        to computer users who are not technically adept.’

    “* * * Because metadata shows the date, time and identity
    of the creator of an electronic record, as well as all changes
    made to it, metadata is a distinctive characteristic of all
    electronic evidence that can be used to authenticate it
    under Rule 901(b)(4). Although specific source code mark-
    ers that constitute metadata can provide a useful method of
    authenticating electronically stored evidence, this method
    is not foolproof[.]”

          For digital files, metadata is part and parcel of the
evidence submitted, just as important as the visual image
itself, or the text of the document.2 In fact, there may be
circumstances where an analysis of the metadata raises
    2
      It is worth noting that the Federal Rules of Evidence changed in 2017 to
include, among the list of self-authenticating documents, “[d]ata copied from an
electronic device, storage medium, or file, if authenticated by a process of digital
identification, as shown by a certification of a qualified person.” FRE 902(14). The
digital identification described by FRE 902(14) is typically a comparison of meta-
data hash values. To date, the Oregon legislature has not made a similar addition
to the Oregon Evidence Code.
Cite as 

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authenticity questions so significant that no reasonable per-
son could believe the evidence to be authentic based solely
on lay testimony from the file’s creator. This is not such a
case.

         Although Primeau’s analysis of the metadata iden-
tified certain irregularities, he expressly limited his conclu-
sions to the metadata of the duplicate he received, not the
original. At trial, he confined his analysis of the metadata
to what he had received on the DVD copy and stated that he
could not determine “whether or not the files that we saw
today are authentic without examining the camera and the
original media.” (Emphasis added.) As the trial court rec-
ognized, the irregularities Primeau noted in the metadata
of the DVD copy may have been the result of the process
used to duplicate the files, not in the creation of the orig-
inal files on the memory card. In any event, the evidence
related to the metadata was far from definitive with regard
to whether the original files had ever been altered. Accord
United States v. Safavian, 

 (DDC 2006)
(concluding, under FRE 901, that “[t]he possibility of alter-
ation does not and cannot be the basis for excluding e-mails
as unidentified or unauthenticated as a matter of course,
any more than it can be the rationale for excluding paper
documents (and copies of those documents). * * * Absent
specific evidence showing alteration * * * the Court will not
exclude any * * * e-mails because of the mere possibility that
it can be done”). (Emphasis in original.)

         Primeau’s testimony about the presence of color
bars likewise raised a matter for the jury to consider when
determining whether to credit the recordings, not a basis
on which to exclude the evidence for lack of authenticity.
Although Primeau testified that color bars are a product of
intentional editing in his experience, he also acknowledged
that he was unfamiliar with the particular camera that
Walker used and that he did not know whether it was pos-
sible for color bars to result from dropping that camera. In
fact, he even appeared to hedge on his ultimate conclusion
about the color bars, stating: “Well, prior to today, my opin-
ion was that I believed that they were added to the record-
ing, post recording[.]” (Emphasis added.)
130                                        State v. Sassarini

          In sum, we agree with the trial court that the state
presented sufficient evidence to authenticate the recordings
on Exhibit 1 under OEC 901, which requires only “evidence
sufficient to support a finding that the matter in question
is what its proponent claims.” See generally Hon. Paul W.
Grimm et al, Authenticating Digital Evidence, 69 Baylor
L Rev 1, 11-12 (2017) (discussing the question of conditional
relevance and explaining that, “[i]n evaluating all the fac-
tors below, it is important to remember that the threshold
for the court’s determination of authenticity under Rule 901
is not high: ‘[t]he [c]ourt need not find that the evidence is
necessarily what the proponent claims, but only that there
is sufficient evidence that the jury ultimately might do
so.’ ” (Quoting Safavian, 

; emphasis in
Safavian.)). We therefore reject defendant’s second assign-
ment of error.
        Affirmed.