Zimmerman testified that he had watched the video in preparation for trial, the video was a true and accurate depiction of the events that occurred on the night of the shooting, and the video did not appear to have been altered or edited. Mooney’s objection to the video was overruled and, after the video was admitted into evidence, Zimmerman identified Mooney as the person depicted on the video in the white shirt “walking around.” Zimmerman also testified that the video depicted him exiting his car while holding his back where he was shot and running to a nearby McDonald’s. The prosecutor argued during closing argument that the video showed Mooney walk past Zimmerman’s car and shoot him from behind.
A jury found Mooney guilty of second-degree assault; reckless endangerment; possession of a regulated firearm after conviction of a disqualifying crime; wearing, carrying, or transporting a handgun; illegal possession of ammunition; and discharging a firearm in Baltimore City. On appeal, Mooney challenged the admission of the video.
The Applicable Rules
Early in its opinion affirming the convictions, the court set forth basic rules on authentication:
Maryland Rule 5-901(a) 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.” Maryland Rule 5-901(b) sets forth a nonexclusive list of ways to authenticate evidence. The Maryland rules are the same as Federal Rule of Evidence (FRE) 901(a) and (b), and references below to Rule 901 include both the Maryland and Federal Rules.
Traditional Methods of Authentication
After identifying the general authentication rules, the Court explained two methods of authentication that are specifically set forth in Rule 901(b). It identified the first method as the “pictorial testimony” theory of authentication, “where a ‘witness testifies from first-hand knowledge that the [video] fairly and accurately represents the scene or object it purports to depict as it existed at the relevant time.’” (Internal citation omitted.)
This method is well known to trial lawyers, and it is easy to offer an example. Suppose an officer is called to testify at a trial of protestors who failed to disperse when ordered to do so. The officer’s direct examination might include the following:
Q. Were you present when the order to disperse was given?
A. Yes.
Q. And were you able to observe what happened after the order was communicated?
A. Yes.
Q. What happened?
A. The defendants failed to obey the order.
Q. Have you had a chance to watch a video marked prosecution exhibit 1?
A. Yes.
Q. Is it a fair and accurate representation of what you saw and heard when the order was given and what happened thereafter?
A. Yes.
This is an example of a witness testifying from personal knowledge which is exactly what Rule 901(b)(1)covers.
The court identified a second method as the “silent witness” theory of authentication by which a video can be authenticated where there is “an adequate foundation assuring the accuracy of the process producing” the video. Imagine a bank robbery prosecution in which the bank was robbed in the middle of the night when there were no witnesses present, but the robbery was recorded by a closed-circuit camera. A person familiar with the operation of the camera might testify as follows:
Q. What role do you play with respect to the camera?
A. I installed it and inspect it daily to make sure that it is in good working order.
Q. Did you inspect it the day before the robbery?
A. Yes.
Q. Was it in good working order?
A. Yes.
Q. Did you inspect it after the robbery?
A. Yes.
Q. Did it appear to have operated properly and to have accurately recorded the robbery as it progressed?
A. Yes.
This form of authentication satisfies Rule 901(9) (“[e]vidence describing a process or system used to produce the proffered exhibit or testimony and showing that the process or system produces an accurate result”).
It should be obvious that the prosecution could not rely on 901(b)(1) or 901(9) in Mooney since the video contained things he did not see, and no witness was called to show that the process by which the recording was made guaranteed the accuracy of the video.
Another Method
But the court held, as a matter of first impression, that a trial court may admit a video so long as there is sufficient evidence for a reasonable juror to find by a preponderance of the evidence that the video is authentic and that a video can be authenticated through circumstantial evidence. The court wrote the following:
There need not be a witness with personal knowledge of every single event depicted in a video for the video to be authenticated. What matters is that the proponent of the video must demonstrate that the evidence is sufficient for a reasonable juror to find by a preponderance of the evidence that the video is what it is claimed to be.
The court found support for its holding in Rule 901(b)(4), which permits evidence to be authenticated through circumstantial evidence, such as the “appearance, contents, substance, internal patterns, location, or other distinctive characteristics, taken together with all the circumstances” are sufficient to support a finding that the offered evidence is what it is claimed to be.
Suppose the officer in the example set forth above testified that “I heard the order and, although I was not watching what the particular defendants did, everything on the video is consistent with what I experienced.” A court might find that a reasonable jury could infer that the video was accurate pursuant to Rule 901(b)(4).
The court found that there was sufficient evidence for the Mooney jury to find that it was what the prosecution claimed it was. The court noted that Zimmerman properly testified from personal knowledge that while sitting in his car he observed Mooney, Mooney kept walking until he passed where Zimmerman was sitting in the vehicle, Zimmerman opened the door of his vehicle next to the driver’s seat to look for Mr. Mooney, and as soon as he sat back in the driver’s seat he was shot.
The court reasoned that the close temporal proximity of the shooting to the events before and after the shooting and the facts of which Zimmerman had personal knowledge were sufficient to support an inference that the video accurately depicted the shooting. The court added that, although the record did not reveal the identity of the individual who provided the video to the detective, there was sufficient evidence to infer that the video was recorded by a camera belonging to a local resident and that it was obtained the same night as the shooting from a source who was not connected to Zimmerman, Mooney, or the police.
Lessons
- The “pictorial testimony” and “silent witness” methods of authentication are frequently used at trial and have long pedigrees supporting them, but they are not the only ways to authenticate a video.
- Circumstantial evidence can be sufficient to authenticate a video.
- But, as the Mooney court cautioned, “authentication of video footage through circumstantial evidence will generally require more specific questioning tailored to the particular circumstances of the case to establish a sufficient foundation.”
