(Christopher Mooney v. Maryland, No. 32 September Term 2023, Md. Sup., 2024 Md. LEXIS 309)
(Opinion available. Document #46-240904-044Z.)
The court issued the opinion Aug. 13.
A Baltimore City Circuit Court jury found Christopher 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. The case was based in part on witness testimony from shooting victim Joshua Zimmerman, who testified that he was shot in the back while sitting in the driver seat of an automobile. The prosecution alleged, and Zimmerman testified, that Mooney walked past his car before turning to shoot at him.
Over objections by Mooney, the prosecution admitted a camera recording from a wall-mounted camera and Zimmerman’s testimony confirming that it accurately portrayed the events of the evening. Zimmerman testified that the video had not been altered or changed based on his recollection of the events of the shooting.
‘Pictorial Testimony’
On appeal, the Maryland Court of Appeals affirmed that video evidence could be authenticated through circumstantial evidence under Maryland Rule 5-901(b)(4), Md. R. 5.901(b)(4).
Mooney appealed, arguing that the “reasonable juror” standard and State v. Sample, 468 Md. 560, 228 A.3d 171, 194 (2020), did not permit authenticating video through circumstantial evidence. Mooney argued that Maryland law required that “pictorial testimony” be confirmed by a witness who could testify that they personally witnessed the evidence shown in the images.
Writing for the majority, Judge Shirley M. Watts affirmed that video evidence can be admitted when there is sufficient evidence on which a reasonable juror could find that the evidence is what it is purported to be. “In addition, we hold that, like other evidence, video footage can be authenticated in a variety of ways, including through circumstantial evidence under Maryland Rule 5-901(b)(4),” the majority said. Judge Watts was joined by Judges Brynja M. Booth, Jonathan Biran, Angela M. Eaves and Senior Judge Michele D. Hotten, who sat by assignment.
The video in question here was properly admitted through Zimmerman’s testimony and Rule 5-901(b)(4) because a reasonable juror could conclude that the video shows a fair and accurate representation of the shooting, the majority said.
In its conclusion, the majority said: “Video footage, like social media evidence, is susceptible to alteration, and the increased availability of new technology, particularly the advent of image-generating artificial intelligence, may present unique challenges in authenticating videos and photographs. As we have noted, ‘[p]hotographic manipulation, alterations and fabrications are nothing new, nor are such changes unique to digital imaging, although it might be easier in this digital age.’ [Washington v. State, 406 Md. 642, 652, 961 A.2d 1110, 1116 (2008)]. Nonetheless, at this time, video footage can be authenticated through vigilant application of existing methods for authentication of evidence. Like other evidence, video footage can be authenticated by circumstantial evidence sufficient for a reasonable juror to find by a preponderance of the evidence that the video is what it purports to be,” the court said.
AI
In concurrence, Judge Matthew Fader wrote: “I join the Majority opinion in full. I write separately to express one additional thought. Judge Gould begins his thoughtful dissent with a reference to ‘the age of artificial intelligence’ and the growing ‘risk of fabricated or altered evidence.’ The evidentiary concerns associated with the growth and proliferation of artificial intelligence, especially generative artificial intelligence, are real and pressing. Courts should be alert to claims that evidence has been altered by the use of artificial intelligence, and artificial intelligence technology may ultimately require us to adjust our rules and procedures for authenticating electronic evidence. But the record in this case does not contain any hint that artificial intelligence may have played a role, nor was there any suggestion that the video may have been altered in any way. We can expect to need to tackle issues associated with artificial intelligence soon, but this is not the case.”
In dissent, Judge Steven B. Gould said: “In the age of artificial intelligence, the risk of fabricated or altered evidence has never been greater, and that risk will only increase as technology advances. The Majority optimistically posits that ‘at this time, video footage can be authenticated through vigilant application of existing methods for authentication of evidence.’ . . . I hope so, but my concerns are that Maryland Rule 5-901 was not vigilantly applied here, when the trial court admitted the video into evidence over Mr. Mooney’s objection and that, as a result, the Majority is lowering the bar by affirming the trial court’s ruling. In my view, the trial court should not have admitted the entire video but instead should have required the State to edit out the parts where Mr. Zimmerman lacked personal knowledge, including the footage of the shooting. Those critical few seconds were not authenticated by the pictorial testimony method, the silent witness method, or with circumstantial evidence. I write separately to explain my reasoning.”
“The authentication requirement exists to prevent the admission of tampered evidence. If someone wanted to frame Mr. Mooney by tampering with the video, we would expect that person to alter the minimum amount necessary to achieve that purpose. Here, that could be altering only the appearance of the shooter. So, the fact that Mr. Zimmerman can authenticate the parts he did see does not mean the parts he could not see were untampered with,” Judge Gould wrote.