Surveillance Video of Robbery Was Properly Authenticated by Eyewitness

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In Karn v. State, 2021 WL 515388 (Md. Ct. Spl. Apls. Feb. 11, 2021) (unreported), the Court affirmed a holding that the State had laid a proper foundation for admitting surveillance video.

The Court applied the Court of Appeals’ decisions in State v. Sample, 468 Md. 560, 588 (2020), and Sublet v. State, 442 Md. 632, 678 (2015), which were the subject of a previous blog.

Three people robbed a convenience store.  “The episode was recorded by the store’s surveillance cameras, and footage from them was shown to the jury.” A store employee, Mr. Ongwesa, testified that the video recordings accurately depicted the events that occurred at the time of the robbery.  The employee had been in the store when it was robbed.

“According to appellant, the State was required to, but did not, ‘lay an adequate foundation assuring the accuracy of the process that produced the, and/or describing a process or system that produces an accurate result.’”

The Court rejected the argument:

Had no one testified that the video recordings were a fair and  accurate depiction of what they purported to be, as Ongwesa did, appellant’s contention that a witness needed to testify “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” to lay a proper foundation for the admissibility of the video recordings may have had some force….

However, because Ongwesa testified that the video recordings were what they purported to be, i.e., fair and accurate representations of what occurred at the time of the robbery, the State satisfied its obligation to authenticate the video recordings and the court properly exercised its discretion in admitting the evidence over appellant’s objection.

Authentication of video surveillance from an ATM was addressed in Jackson v. State, 460 Md. 107 (2018).

For a general discussion of authentication of ESI, see M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Maryland State Bar Ass’n. 2020), 2-3, 581, passim.

Karn is unreported: “An unreported opinion of the … Court of Special Appeals is neither precedent within the rule of stare decisis nor persuasive authority.”  Md. Rule 1-104(a). The Rule “may not be circumvented merely because a commercial publisher decides to publish the opinion. If we file the Opinion as unreported and, as a result, it does not appear in the official Maryland Appellate Reports, it is subject to the Rule.”  Nicholson v. Yamaha Motor Co., 80 Md. App. 695, 718 (1989), cert denied, 318 Md. 683 (1990).

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