[EDRM Editor’s Note: The opinions and positions are those of Marris Hoffee and Michael Berman.]
In Reddick v. State, __ Md. App __, 2024 WL 4633506 (Apls. Ct. Md. Oct. 31, 2024), the intermediate appellate court addressed an important issue of authentication of surveillance video by a lay witness. That witness was permitted to authenticate a video under the “silent witness” theory. The lay witness, a store employee, had not downloaded or viewed the video, but he was permitted to testify that it was the result of a reliable process and could not have been manipulated or altered.
The defendant, Mr. Reddick, was sentenced to life imprisonment for murder and related offenses. At trial, the State relied on Walmart store surveillance video purportedly showing him with his co-defendant and the victim, shortly before the victim disappeared. Id. at *1.
The State called a Walmart asset protection manager to authenticate the footage. This witness testified about his familiarity with Walmart’s surveillance system, including its operation, storage, and downloading processes. Id. at *6. He also testified that “no one had the ability to alter the videos in any way.” Id. at *5. He “explained that when a video was requested following an incident, the asset protection employee responsible for downloading it would be able to start the download an hour before and let it run an hour after the incident, but that no editing of any kind was possible.” He relied heavily on the “distinct file name,” and the date and time stamp, that he had verified. He testified that he “could conclude that the CD was taken on a particular time, a particular date, and by a particular camera or cameras….” Id. at *5.
On appeal, Mr. Reddick argued that the State failed to properly authenticate the surveillance footage.[1] Id. at *4. He asserted that the asset protection manager (1) did not personally download the video; and (2) never viewed its original contents. Therefore, in his view, the evidence was not sufficiently authenticated. Id. at *6. Mr. Reddick argued that the store employee’s testimony was insufficient for authentication, contending that the State had failed to establish a proper foundation showing the reliability of the process. Id. at *4.
The Appeals Court disagreed and affirmed, applying the “silent witness” doctrine. Id. at *8.
This method allows for authentication by the presentation of evidence describing a process or system that produces an accurate result. Specifically, a witness can 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.
Id. at *6 (cleaned up).
The doctrine allows video evidence to be authenticated without a direct observer, provided the system producing the footage is shown to be trustworthy. Id. Unlike the “witness with knowledge” method, “silent witness” testimony is probative in itself. Id.; see The “Silent Witness” Theory of Authentication of Video Evidence (July 5, 2024).
This method allows for authentication by the presentation of evidence describing a process or system that produces an accurate result. Specifically, a witness can 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.
Reddick v. State, __ Md. App __, 2024 WL 4633506, *6 (Apls. Ct. Md. Oct. 31, 2024).
Applying this principle to the facts presented, the Court concluded that the witness’s testimony demonstrated sufficient knowledge of the surveillance system’s reliability, even though he lacked direct involvement with the specific footage. Id. It reasoned that the asset protection manager’s testimony established both: (1) extensive knowledge of the video surveillance system, including its operation, storage, and download procedures; and (2) that the video could not be manipulated or altered. Id.
Here, a witness who lacked direct knowledge of the specific download was able to authenticate it by describing a process that the Court found to be reliable. Generally, authentication involves a witness testifying that the evidence is what it purports to be, and that is not a high barrier. Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 542 (D. Md. 2007). In Mooney v. State, 487 Md. 701 (2024), the Maryland Supreme Court held that a witness could authenticate video that contained images he had not seen. Circumstantial evidence was sufficient. See Can a witness authenticate a video if the video contains images that the witness did not see? (Aug. 16, 2024); Authentication of Entire Video When Witness Observed Only Part of the Events Portrayed in the Video (Mar. 1, 2024); Is a “Composite” Video Admissible and Can a Police Officer “Narrate” It at Trial? – Part 2 of 2 (Sep. 1, 2024)(“Although neither detective witnessed the events as they unfolded, their knowledge of the area and camera locations provided a foundation for them to describe what they saw on the videos in a way that helped the jury understand the evidence without intruding into its exclusive realm.”).
A trial court is a “gatekeeper,” not an “armed guard,” when it comes to admissibility. Admissibility of Photogrammetric Evidence – Trial Court is a “Gatekeeper” But Not an “Armed Guard” (Jun. 25, 2022).
In Reddick, a lay witness was permitted to testify that a video system and its operators could not alter the video during or after the download process. Under Maryland Rule 5-701, lay witnesses may testify about their direct perceptions to help jurors understand facts. By contrast, Maryland Rule 5-702 permits expert witnesses to offer opinions based on specialized knowledge, training, or experience. The key distinction is whether the testimony is based on personal observation or technical expertise.
Reddick seems to permit what appears to be a somewhat technical opinion by a lay witness. That may effectively expand the role of lay witnesses in authenticating complex video systems. The asset protection manager testified as a lay witness, drawing on his experience and training with the surveillance system to vouch for its reliability. He testified that the footage could not be altered or manipulated, yet he had no direct knowledge of the specific footage’s chain of custody or original download process. While courts have previously allowed lay witnesses to authenticate simpler surveillance systems based on personal observation[2], this case marked an expansion by permitting a lay witness to authenticate a more complex system without firsthand interaction with specific video evidence.
“Some evidence… is beyond the common experience of most people. Expert testimony may be necessary for the factfinder to decide the significance of such evidence.” Johnson v. State, 457 Md. 513, 516 (2018)(GPS).
Expert testimony is often required to explain scientific or technical matters. But expert testimony is not required simply because one can explain a matter scientifically. For example, a jury can be expected to readily understand the significance of testimony that a clock or a thermometer displayed certain numbers without need for an expert to explain the scientific phenomenon that underlies the thermometer or the engineering that powers the clock. But the jury will need an expert to understand the significance of an opinion that two biological samples “match” based upon a statistical analysis involving DNA evidence.
While common sense does not change, common human experience does. A technical marvel of an earlier time may become the everyday tool of the contemporary person. This case presents the question whether location information from a GPS device is more like numbers read from a clock or thermometer or more like a conclusion reached from the analysis of DNA evidence.
Johnson, 457 Md. at 516–17.
Reddick appears to permit lay testimony under the “silent witness” theory on a somewhat technical issue. It has been held that Expert Testimony Not Required to Show Ability to Disable Location Tracking on Smartphone (Jul. 17, 2022), and “No Expert Needed to Introduce Data Pulled From Phone at Trial” (Nov. 20, 2023). As technology evolves, courts must carefully balance the need for efficient evidentiary procedures with the need to safeguard against digital tampering.
Notes
[1] The appellate court determined as a preliminary matter that Mr. Reddick preserved the authentication issue. Id. at *5.
[2] See, Prince v. State, 255 Md. App. 640 (2022) (a simple one camera system was authenticated based on lay witness’s perception of reliability, and knowledge of the chain of custody).
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