Can a witness authenticate a video if the video contains images that the witness did not see? In Md. Supreme Court to rule on Baltimore criminal case involving video authentication – Maryland Daily Record (thedailyrecord.com) (Feb. 22, 2024), Rachel Konieczny reported on a novel and important authentication issue. She wrote that:

The high court granted certiorari late last week to decide whether authentication of video through the “pictorial testimony theory” is permitted, where a[n] [authenticating] witness did not see the entirety of the events depicted in the video.

Rachel Konieczny, Md. Supreme Court to rule on Baltimore criminal case involving video authentication – Maryland Daily Record (thedailyrecord.com) (Feb. 22, 2024).

Generally, authentication involves a witness testifying that the evidence is what it purports to be, and that is not a high barrier. Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 542 (D. Md. 2007).

“Photographs have been authenticated for decades under Rule 901(b)(1) by the testimony of a witness familiar with the scene depicted in the photograph who testifies that the photograph fairly and accurately represents the scene.” Lorraine, 241 F.R.D. at 560. Under Fed.R.Evid. 1001(2) and Md. Rule 5-1001(b), for purposes of authentication, “photographs” include video recordings.^[1]

In Maryland, to authenticate ESI, proof is required only by a preponderance of the evidence. See State v. Sample, 468 Md. 560, 598 (2020)(“unfriending” on social media).

However, what happens when an authenticating witness saw only part of the events depicted in a video and did not see the critical part of what is offered into evidence through that witness?

In summary, Ms. Konieczny reported that the question presented in the pending appeal is whether a person who “was not a witness to the entirety of the video” and who did not see the “critical shooting part of the video”- – because the witness’s back was turned – – can authenticate the video that shows the shooting. Id. The intermediate appellate court answered in the affirmative under the “pictorial testimony theory of authentication.” Id.

The unreported intermediate appellate decision is Mooney v. State, 2023 WL 6783388 (Apls. Ct. Md. Oct. 13, 2023).^[2] Certiorari was granted on February 16, 2024, on the following issue: “Did [the intermediate appellate court] lower the requirements for authentication of video evidence through the ‘pictorial testimony theory’ where a witness is permitted to authenticate video evidence even when the witness did not see the entirety of the events depicted in it?”

Mr. Mooney was found guilty of several handgun-related charges, and acquitted of various more serious charges, in a non-fatal shooting of Mr. Zimmerman. Id. at *1. The appeal presented one question: “Whether the trial court erred by admitting the State’s key piece of evidence (a video-State’s #1A) without the required authentication?” The intermediate appellate court found no error and affirmed.

The gunfire apparently arose out of a romantic triangle. After a verbal exchange, Mr. Zimmerman said that Mr. Mooney shot him while Mr. Zimmerman sat in his truck. Mr. Zimmerman testified: “I cracked my door and I’m looking out and I didn’t see him. As soon as I sat back that’s when the gunshots happened…. That’s when I got shot.” [emphasis added].

The Court explained:

A nearby residence had an exterior [Ring] camera that captured video footage of the shooting. Detective Victor Liu of the Baltimore City Police Department recovered that video, and the State introduced that video into evidence at trial as State’s Exhibit 1A, over Mooney’s counsel’s objection. The video was published to the jury, and Zimmerman testified about what he observed on the video. This Court has reviewed the video, which is one minute and 51 seconds long. The video shows the following events. Mooney walked by Zimmerman, who was sitting in the driver’s seat of his parked SUV. Mooney then stopped behind the vehicle, turned around, shot into the back of the vehicle, and then fled the scene as Zimmerman exited the driver’s seat of the vehicle.

Mooney v. State, 2023 WL 6783388 at *1 (Apls. Ct. Md. Oct. 13, 2023).

Mr. Zimmerman called 911 and told the police that Mr. Mooney had shot him.^[3]

On appeal, “[a]ccording to [defendant] Mooney, [victim] Zimmerman could not authenticate the video under the pictorial testimony method of authentication because Zimmerman was not a witness to the entirety of the video. Moreover, Mooney claims that even if the State had attempted to introduce the video through Detective Liu’s testimony (under the silent witness method of authentication), Detective Liu’s testimony would have been insufficient to authenticate the video.”

The Appeals Court quoted Mr. Zimmerman’s authentication testimony in full. Id. at *3-4. Initially, Mr. Zimmerman identified his truck and the surrounding area shown on the video. He said that the video did not look altered or edited, and confirmed the date and time.

When offered into evidence, defense counsel objected and, in part, said: “But I don’t know that he watched the whole thing either –….” The Court said: “I don’t know either.” The Court stated that more was needed for authentication. The following testimony was then provided:

[THE STATE:] Mr. Zimmerman, did you watch this video in preparation?

[ZIMMERMAN:] Excuse me?

[THE STATE:] Did you watch this video in preparation?

[ZIMMERMAN:] Yes, I did.

[THE STATE:] Okay. And after seeing that video was that a true and accurate depiction of the events that occurred that day?

[ZIMMERMAN:] Yes.^[4]

[THE STATE:] And there was nothing that was changed or altered?

[ZIMMERMAN:] No.

[THE STATE:] From your recollection thereof?

[ZIMMERMAN:] No.

[THE STATE]: Your Honor, the State at this time would move into evidence State’s Exhibit 1A.

THE COURT: Over objection, State’s 1A is admitted.

Mooney v. State, 2023 WL 6783388 at *3-4 (Apls. Ct. Md. Oct. 13, 2023).

The Appeals Court explained the pictorial testimony theory of authentication:

Photographs and videos “may be authenticated under several theories, including the ‘pictorial testimony’ theory[.]” Reyes v. State, 257 Md. App. 596, 630 (2023) (quoting Washington v. State, 406 Md. 642, 652 (2008)). “[T]he pictorial testimony theory of authentication allows photographic evidence to be authenticated through the testimony of a witness with personal knowledge[.]” Washington, 406 Md. at 652. Under that method of authentication, videos are admissible “to illustrate testimony of a witness when that witness testifies from first-hand knowledge that the fairly and accurately represents the scene or object it purports to depict as it existed at the relevant time.” Id. at 652 (quotation marks and citation omitted). [emphasis added].

The Court explained the evidentiary challenge: “On appeal, Mooney claims that Zimmerman was unable to authenticate portions of the video that Zimmerman did not observe in real time during the shooting.” Id. at *4. Mr. Mooney’s brief stated: “Because the critical shooting part of the video Zimmerman did not see, that portion could only be admitted under the silent witness theory’ of authentication.”^[5]

The Court added: “In essence, Mooney argues that witnesses can only authenticate videos under the pictorial testimony method when they observe every moment of the video from a perspective that viewed the full frame of the video.” [emphasis added].

The Court rejected Mr. Mooney’s argument, writing: “That argument misses the mark because the requirements for authentication are not as strict as Mooney suggests.” It described the burden, under the Court’s gatekeeper role, as “slight.” It added:

Under Md. Rule 5-901(b)(1), evidence can be authenticated through “[t]estimony of a witness with knowledge that the offered evidence is what it is claimed to be.” Here, Zimmerman testified that he had watched the video. He testified that he was the individual depicted in the video. He testified that nothing had been edited on the video. He testified that the video was “a true and accurate depiction of the events[.]” Although Zimmerman’s back was facing Mooney when Mooney shot him, Zimmerman testified from personal knowledge about the location and events of the shooting, as captured on the video. [citations omitted]. The limitations on Zimmerman’s peripheral vision during the shooting went only to the weight of his testimony and not to the admissibility of the video. [emphasis added].

Mooney v. State, 2023 WL 6783388 at (Apls. Ct. Md. Oct. 13, 2023).

I wonder what the result would have been under the following hypothetical:

[THE STATE:] Did you watch this video in preparation?

[ZIMMERMAN:] Yes, I did.

[THE STATE:] Okay. And after seeing that video was that a true and accurate depiction of the events that occurred that day?

[DEFENSE COUNSEL:] Objection. Under Rule 5-602, “[e]xcept as otherwise provided by Rule 5-703 [experts], a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”

Mr. Zimmerman saw only part of the video. At the critical time, his back was turned and he did not see all of what is purportedly shown by the video. He cannot have personal knowledge of alleged events that he did not see. He cannot testify that it is a true and accurate depiction.

The authentication rule, Rule 5-901, requires that the State show that the video is what its proponent claims. That may be done by a witness with knowledge.

However, here, because his back was turned, Mr. Zimmerman is not “a witness with knowledge that the offered evidence is what it is claimed to be” under authentication Rule 5-901(b)(1).

The State has failed to show that he has personal knowledge of those portions of the video and those portions cannot be authenticated by this witness. Mr. Zimmerman may authenticate only the parts of the video that reflect what he in fact observed.

[THE STATE]: Mr. Zimmerman saw enough to support his testimony.

Even if the Court were to accept defendant’s argument, Rule 5-901(b)(4) permits authentication by “[c]ircumstantial evidence, such as appearance, contents, substance, internal patterns, location, or other distinctive characteristics, that the offered evidence is what it is claimed to be.”

Here, there is ample circumstantial evidence.

Further, under Rule 5-104, this is a “gatekeeper” ruling. That Rule states that “[p]reliminary questions concerning the qualification of a person to be a witness… or the admissibility of evidence shall be determined by the court, subject to the provisions of section (b).”

Section (b) states: “When the relevance 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 by the trier of fact that the condition has been fulfilled.”

This should be conditionally submitted to the jury. Defendant can argue that Mr. Zimmerman’s back was turned to the jury.

[DEFENSE COUNSEL]: Your Honor, the prosecution omits part of Rule 5-104(b), which provides that, in making a preliminary determination, the gatekeeper “may, in the interest of justice, decline to require strict application of the rules of evidence, except those relating to… competency of witnesses.” Mr. Zimmerman’s lack of personal knowledge goes to competency.

[THE COURT]: Overruled. In making my ruling, I disregard that portion of Mr. Zimmerman’s authentication testimony insofar as it relates to events that he did not personally observe.

Michael Berman.

Although Mr. Zimmerman did not see all of the events pictured on the video, I find that there is sufficient circumstantial evidence under Rule 5-901(b)(4) “such as appearance, contents, substance, internal patterns, location, or other distinctive characteristics, that the offered evidence is what it is claimed to be.”

Mr. Zimmerman testified about events before and after the shooting that he in fact observed. He authenticated surrounding structures shown in the video. He identified the location as the 3900 block of Falls Road. He identified his truck and testified that he was in it.

There is evidence from the Detective of the location of the Ring camera that took the video and how the Detective obtained it. There is authenticated evidence of date, time, and location.

The witness authenticated much of the video and saw no edits or alterations to the portions that he had in fact observed at the time of the occurrence.

In addition to bullet holes in the truck, and a bullet lodged in the truck, shell casings were recovered around the vehicle.

I will report the outcome when the Supreme Court of Maryland rules.

Notes

^[1] In Mooney v. State, 2023 WL 6783388, n. 1 (Apls. Ct. Md. Oct. 13, 2023)(unreported), the Court wrote that a video is considered a photograph for admissibility purposes.

^[2] An unreported opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B).

^[3] Interestingly, but not at issue in the appeal, Mr. Zimmerman “obtained photographs of Mooney through Facebook and provided those photographs to police.” Id. at *2. The Court wrote that: “Detective Liu obtained the Facebook photos provided by Zimmerman and ‘cross referenced’ them ‘with … the arrest viewer and MVA to develop’ Mooney’s identity as the suspect.”

^[4] Maryland Rule 5-103(a)(1) requires a timely objection to preserve an error. Defense counsel did not object that Mr. Zimmerman lacked personal knowledge to support that testimony.

^[5] In note 3, the Court described the “silent witness theory” of authentication. Under that method, evidence is authenticated by showing a process or system that produces an accurate result. This involves showing the type of equipment 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. Id. The Court added: “Despite Mooney’s framing of this issue on appeal, the State did not attempt to authenticate the video footage through the silent witness method. Instead, the State authenticated the video through the pictorial testimony method during Zimmerman’s direct examination.”