Creating an Appellate Record of Audio, Audiovisual, or Video Evidence

The July 2024 “Notice of Proposed Rules Changes” of the Maryland Standing Committee on Rules of Practice and Procedure – – 223rdreport.pdf (mdcourts.gov) – – proposes rules that address the issue of how “digital media” – – a term of art – – is placed in the record, both in open court and in pleadings or motions.  Proposed Rule 1-202 defines “digital media” as material in an audio, audiovisual, or video format that can be transmitted and stored electronically.

If adopted, the proposed rules would provide for a digital storage platform approved by the State Court Administrator.  “Digital media” would be submitted on that platform.  As I read the proposed amendment, it provides that any digital media filed with the State Court Administrator is part of the official record.  It could then be considered on appeal.

The Reporter’s Note to Proposed Rule 1-322(a)(filing of pleadings and motions), states: “Proposed new subsection (a)(6) authorizes digital media, as defined by Rule 1- 202, to be transmitted using a digital storage platform approved by the State Court Administrator.”

Proposed Rule 20-106 states: “Digital media offered in open court and included in the record pursuant to Rule 2-516, Rule 3-516, or Rule 4-322 shall be (A) submitted using a digital storage platform approved by the State Court Administrator and (B) referenced in the MDEC [electronic filing] system by docket entry.”

The Reporter’s Note to Rule 20-301 (“official record”) states: “Recordings made part of the record pursuant to Rule 2-516, Rule 3-516, or Rule 4-322 may be on physical media, such as a hard drive, disc, or flash drive, but also may be submitted digitally using an approved platform.”

The proposed Committee Note to Rule 8-413 (contents of the record on appeal) states: “Exhibits that are audio, audiovisual, or video recordings may be stored and accessed using a digital storage platform approved by the State Court Administrator. Absent any dispute as to the authenticity or accuracy of the file, the file stored on the approved digital storage platform is considered the original for the purposes of this Rule.”

A party who offers or uses an audio, audiovisual, or video recording in a format not in common use by the general public is required to provide the recording to the clerk in a medium and format suitable for transmittal as part of the record.”

Further, the certificate of the clerk of the lower court shall identify “any digital media included in the record and instructions for access by the appellate court….”

Proposed MDEC Rule 16-905 states: “If a case record consists of digital media, a copy of the record shall consist of a document containing instructions for accessing the digital media.”  The Reporter’s Note adds: “Proposed new section (d) sets forth the method of providing a ‘copy’ of a case record that is digital media. Such records are submitted using an approved digital storage platform and not in a physical format. The proposed business process for public access to copies of digital media is a printout generated with instructions for access.”

The proposal is open for comments through August 19th. It is currently scheduled to be before the Maryland Supreme Court for consideration in October.  It contains complexities that are glossed over in this short blog.  For example, there are differences between the courts of general jurisdiction (Circuit Courts) and courts of limited jurisdiction (District Courts).