The “Silent Witness” Theory of Authentication of Video Evidence

The Supreme Court of Maryland is considering a challenge to authentication of video evidence using the “pictorial testimony theory.”  See Authentication of Entire Video When Witness Observed Only Part of the Events Portrayed in the Video (Mar. 1, 2024).

The “silent witness theory” was used in Cleveland v. State, 2024 WL 2149996 (Apls. Ct. Md. May 14, 2024)(unreported). The case arose out of fatal bus stop shooting.[1]

The appellate court explained that: “The entirety of the shooting, which occurred in broad daylight just after 4:00 p.m., was captured by surveillance cameras mounted at several nearby businesses….  The State’s case against the four co-defendants hinged on identifying them as the men depicted in the surveillance videos, which captured the incident at multiple angles.”  Id. at *1.  The video was the “foundation” of the State’s case. Id. at *7.

On appeal, defendants unsuccessfully challenged the authentication of the video evidence.

Authentication testimony was offered through Detective Eric Perez.  Id. at *4.  This blog focuses solely on one part of that issue.

Detective Perez testified that when he arrived at the scene, he knew the area had many businesses and began working to obtain surveillance video. He could see exterior cameras at Michaelangelo’s Pizza and found that the business had a “DVR system … behind a secure counter …. [I]t was a propriety-based DVR system which utilizes a USB thumb drive to initially extract the data from the system.” He explained that a “proprietary system” is “just like a Samsung or a generic DVR system or a Night Owl DVR system, something that’s proprietary based towards that system and that brand.” It was the first time he had retrieved footage from Michaelangelo’s Pizza but he was able to access the system.

Detective Perez testified that he was “pretty much” familiar with most recording systems.  He accessed the system and the first thing he did was to “do a playback just to make sure the footage is there that’s needed, that’s required for the date and time in question, I compare the accuracy of the date and time with actual time to see if I have to compensate for the retrieval time frame if it is off by, you know, ahead or behind, and then I go ahead and retrieve what I need.”  He did that by cross-checking the information on his cell phone and he found the date/time on the Michaelangelo’s Pizza video to be accurate.

The detective then testified to the collection process: “[Y]ou would just go to the menu and look for the back up or download feature and put in the parameters that you need date and time wise for what you needed and check off the cameras that you wanted to go into that download and just make sure everything is accurate for your download and you just go ahead and back it up to your thumb drive and it’s on there once you back it up.”  This was just a drag and drop process. Id. at *8.

In response to a question of whether he could have manipulated the footage in any way, he said that there was “no way” to manipulate “any” of the data.

The Appeals Court added:

Once back in his office, Detective Perez “plugged it up to [his] desktop and review[ed] it for accuracy” to “make sure the download data was accurately obtained and retrieved” and then gave it to Detective Ragland, the primary homicide detective. During the examination [at trial], Detective Perez was shown the video footage from Exhibit 3 and he recognized the contents as those he retrieved from Michaelangelo’s Pizza’s surveillance system.

While there were some differences, there was comparable testimony as to the remaining video evidence from the other sources. Id. at *9 (“His method of obtaining the evidence was also similar to the other videos….”).  That testimony relied in part of the Michaelangelo’s Pizza testimony.  Id. at *9-10.

The Appeals Court wrote: “The appellants contend that more was needed to authenticate the videos. They’re wrong.”

The Court recited precedent which acknowledged that  “movies and tapes are easily manipulated, through such means as editing and changes of speed, to produce a misleading effect….”  Id. at 10.  However, here, that was directly refuted by the detective’s testimony.

Under the “silent witness theory,” the proponent “authenticates a photograph as a mute or silent independent photographic witness because the photograph speaks with its own probative effect.” … Under the ‘silent witness’ theory, a party can authenticate video evidence through “presentation of evidence describing a process or system that produces an accurate result.”  Id. at *10.  Under that theory, “there was no need to have knowledge regarding the technical aspects of the video’s operation….”  Id. at 11 (cleaned up).

The Court’s holding was based on the following foundational facts:

The State established in this case that Detective Perez was familiar with the types of surveillance systems at issue…. Detective Perez physically went to the crime scene, knew the area, and could see that the recording displayed the area accurately. He testified that each surveillance system was secured, which negated any inference that the videos had been tampered with. He checked the time and date stamps to check each system’s reliability. He was familiar with each surveillance system and downloaded each video himself. Detective Perez was knowledgeable about the process of obtaining the surveillance footage, which “consisted of footage from the viewpoint of one camera” and “took the form of a ‘simple videotape’ ….” ….  And importantly, once Detective Perez had already, as he testified, watched “footage from the previous day of that incident” he was able to use the other footage to assess the reliability of each new video….  The circuit court did not abuse its discretion in admitting the video surveillance and corresponding still images.

Id. at *11.  The Court held that there was sufficient evidence to support the convictions. Id., passim.  Many other issues were addressed in the 55-page unreported opinion.

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