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Prosecution: Fail to authenticate video at own risk

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Photo from website of U.S. District Court (W.D. Mi.).

Some may say a picture is worth a thousand words, but first the picture must be authenticated to come into evidence at trial.

Rory Washington went to trial for attempted first degree murder in Baltimore, Maryland. Over his lawyer’s objection, the prosecutor introduced into evidence a compilation of security camera video shoots at the bar where the attempted murder allegedly took place. The prosecutor proceeded in closing and rebuttal argument to rely heavily on the video.

Maryland’s intermediate appellate court held that the trial court abused its discretion in admitting the videotape and still photographs into evidence, but affirmed on a claim that the error was harmless. Washington v. State, 179 Md. App. 32, 943 A.2d 704 (2006).

Praised be a unanimous Maryland Court of Appeals for reversing the conviction, saying: 

"The videotape recording, made from eight surveillance cameras, was created by some unknown person, who through some unknown process, compiled images from the various cameras to a CD, and then to a videotape. There was no testimony as to the process used, the manner of operation of the cameras, the reliability or authenticity of the images, or the chain of custody of the pictures. The State did not lay an adequate foundation to enable the court to find that the videotape and photographs reliably depicted the events leading up to the shooting and its aftermath. Without suggesting that manipulation or distortion occurred in this case, we reiterate that it is the proponent’s burden to establish that the videotape and photographs represent what they purport to portray. The State did not do so here. Mr. Kim, the owner of the bar, testified that he did not know how to transfer the data from the surveillance system to portable discs. He hired a technician to transfer the footage from the eight cameras onto one disc in a single viewable format. Mr. Kim did not testify as to the subsequent editing process and testified only that the surveillance cameras operated ‘almost hands-free’ and recorded constantly. Detective Vila’s testimony also failed to authenticate the video. He testified that he saw the footage only after it had been edited by the technician. We hold that the trial court erred in admitting the videotape and still photographs without first requiring an adequate foundation to support a finding that the matter in question is what the State claimed it to be." Washington v. Maryland, ___ Md. ___ (Dec. 12, 2008).

Concerning harmless error review, Maryland’s high court stated: "The standard in Maryland for evaluating harmless error was set forth by this Court in Dorsey ‘[W]hen an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed "harmless" and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of–whether erroneously admitted or excluded–may have contributed to the rendition of the guilty verdict.’ Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976). The standard remains unchanged today. See Lee v. State, 405 Md. 148, 174, 950 A.2d 125, 140 (2008); State v. Baby, 404 Md. 220, 265, 946 A.2d 463, 489 (2008); Bellamy v. State, 403 Md. 308, 332, 941 A.2d 1107, 1121 (2008); State v. Logan, 394 Md. 378, 388, 906 A.2d 374, 380 (2006); Clemons v. State, 392 Md. 339, 372, 896 A.2d 1059, 1078-79 (2006)."

The Court of Appeals continued: "Without the videotape, the State’s identification of petitioner as the shooter would have rested primarily on the testimony of Mr. Wright, a witness who had declined on several occasions pretrial to identify petitioner as the shooter. Although it was a jury determination as to the credibility of Mr. Wright’s explanation for why he did not identify petitioner as the shooter before the trial, the videotape, relied upon so heavily by the State, under these circumstances, was not harmless beyond a reasonable doubt."

Congratulations to Rory Washington for his appellate victory.  Jon Katz.