[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
Harrod v. State, 261 Md. App. 499 (2024), addressed introduction of a “composite” video as summary evidence and the use of police officers’ testimony describing it.
An innocent bystander was fatally shot while she was with her husband on a hotel patio in Annapolis. They had come from Texas to drop off their son for his induction into the United States Naval Academy.
This first blog addresses the admissibility of a “composite” video prepared by the prosecution. That compilation used excerpts from hundreds of hours of video and combined them into a single 40-minute video that was played to the jury. A second blog will address the use of a police officer to narrate the composite video at trial.
The murder investigation centered on two neighborhoods. The Court wrote:
There were over a hundred surveillance cameras between the two neighborhoods. Maps of the neighborhoods were admitted into evidence, showing the locations of the cameras by number and direction each camera was facing.
A team of investigators gathered and reviewed surveillance videos from these neighborhoods. Investigator Timothy Hall downloaded videos from about 110 cameras, amounting to hundreds of hours of raw footage around the time of the shooting. These videos were admitted into evidence without objection and were contained in about 30 video exhibits.
Lieutenant Michael McDonald was one of the investigators who reviewed the downloaded surveillance footage. He examined 25 to 35 hours of video and found footage depicting the shooting at about 12:17 a.m. He then worked backward and forward from that point in time to determine the suspects’ movements before and after the shooting.
Over objection, Lieutenant McDonald testified that he focused on one of the suspects who wore distinctive attire. The clothing was a black sweatsuit with a white “Keys to Success” logo on the thigh and front of the sweatshirt. He used this as an identifying marker to track the suspect’s movements in the neighborhoods by switching between cameras and noting anything of evidentiary value. Based on his knowledge of the area and the camera locations, Lieutenant McDonald identified relevant portions of footage, the camera numbers, their locations, and the times captured.
Id. at 509-510.
The prosecution prepared a “composite” video and the Court explained that:
John Foster, a demonstrative evidence specialist with the State’s Attorney’s Office, took the original footage and prepared a 40-minute composite video. He isolated clips from the original videos that investigators had identified as having evidentiary value and assembled them in a video-editing software application, where he fine-tuned the clips and mastered the final composite. He inserted two zoomed-in clips, one scaled up to 200 or 220 percent and another enlarged to about 125 percent, without altering their contents.
The composite video showed a man wearing a distinctive black sweatsuit on Clay Street at 10:42 p.m. before the shooting; on Pleasant Street at 12:17 a.m. when the shooting occurred; and in the Robinwood neighborhood, where he was seen exiting a cab at 12:30 a.m.
Id. at 510.
The court admitted the composite video over objection.
On appeal, the defendant made two arguments regarding this objection.
First, the defendant contended that “the composite video did not serve its essential function under the Rule because the distillation of the volume of source footage pinpointed attention to pertinent parts of the videos that the State had accomplished through testimony and stipulation. Once those pertinent portions were identified, the State could have displayed them readily with a pause button or by using a mouse to isolate attention to those parts. He maintains that the Rule permits using a summary only when the individual aspects cannot be conveniently examined in court or when the facts may be ascertained only via that summary, which was not the case here.”
Second, “the appellant argues that the composite video cannot be considered a ‘summary’ because it lacks the objectivity of an abridgment, brief, compendium, or digest as suggested in the dictionary definition. Rather than being an objective condensation or contraction of the voluminous raw data, the composite video was a selection of source videos that the State wanted to focus on. The State chose video clips, zoomed in on specific clips, placed them side-by-side (at times substituting one camera for another), and put them in the desired order so that the State’s witnesses could describe the sequence of events to support the State’s theory of prosecution. Because the composite video was a ‘cultivated production’ rather than a ‘summary,’ it should have been excluded under the Rule.”
Significantly, the appellant does not claim that the composite video is inaccurate, omits essential aspects of the source footage, or adds parts that were not in the original footage….
Harrod v. State, 261 Md. App. 499, 534 (2024).
The State responded that “hundreds of hours of raw footage captured by over a hundred cameras—could not have been conveniently examined in court.” Further, “there is no assertion that a critical clip was missing or that a particular clip should have been omitted.” Id at 530.
The Appellate Court of Maryland listed the four prerequisites to introduction of summary evidence under Maryland Rule 5-1006.
First, the source materials must be sufficiently voluminous. While there is no precise test, a court analyzes both the quantity and complexity of the materials. Id. at 532. The decision is committed to the sound discretion of the trial court.
Second, while the source materials “need not be introduced into evidence,” they must be “otherwise admissible.” Id. The rationale is that the summary “is being introduced substantively in place of the matters summarized.”
Third, the proponent must give notice of its intent to use a summary and: “This allows the opponent to be prepared to evaluate its accuracy.” Id.
Fourth, “the party seeking to introduce the summary must make both the summary and the underlying documents available for inspection and copying by the other parties at a reasonable time and place.” Id. (cleaned up).
Additionally, while the trial court “may” require production of the underlying documents in court, “such production in court should be avoided if it is too impractical.” Id.
In Harrod, the appellant challenged only the first prerequisite (voluminous) “and whether the composite video constitutes a ‘summary’ under the Rule.” Id.
Both challenges were rejected.
“We hold that the first prerequisite was met. The trial record established that the source materials amounted to hundreds of hours of original footage. The appellant’s assertions that the prosecution could have played and paused for the jury relevant clips from the original videos and that those clips had already been identified through testimony or stipulation overlook the fact that the jury would have been left with the original videos contained in about 30 video exhibits to sift through during deliberation.” Id. at 533-34.
“We are also unpersuaded by the appellant’s argument that the composite video is not a ‘summary.’” Id. at 534.
The core of the appellant’s arguments is that the composite video purportedly favored the State’s theory of the case. Significantly, the appellant does not claim that the composite video is inaccurate, omits essential aspects of the source footage, or adds parts that were not in the original footage….
The State’s use of the composite video to support its theory of the case does not disqualify it from being a “summary” under the Rule. Nor does its purported one-sidedness justify exclusion. This is because “summary evidence necessarily involves selecting some things and leaving out others[.]”…
To the extent the appellant claims that the composite video presented a biased version of the events, any potential bias goes to the weight of the summary evidence and not admissibility.
Id.
Importantly, the Court wrote that: “We do not interpret the rule to require a party to include their adversary’s version of the facts in their summary exhibit.”
To the extent the appellant claims that the composite video presented a biased version of the events, any potential bias goes to the weight of the summary evidence and not admissibility.
Harrod v. State, 261 Md. App. 499, 534 (2024).
I have presented compiled video and documentary evidence in a civil lawsuit on a summary judgment motion. Waterman v. Batton, 294 F. Supp. 2d 709, 723 (D. Md. 2003), rev’d, 393 F.3d 471 (4th Cir. 2005). That litigation involved a fatal police shooting in which I represented the defendants.
Like Harrod, there were lengthy videos that contained both wholly irrelevant footage, such as a squad car driving from the call location to the scene, and important footage, such as the events at issue. Together with my colleague, Karen Kruger, Esq., we created a compilation of video excerpts and documentary evidence in PowerPoint© format and submitted it to the Court on summary judgment. Our memorandum stated:
The events that followed will be presented in two formats. First, attached as Exhibits 10 through 28 are traditional “paper” exhibits for a summary judgment motion, together with a copy of two videotapes of the events that were recorded by the cameras mounted in the two police cruisers, BWI 6 and BWI 9, and a transcript of the audiotapes of police transmissions. Second, attached as Exhibit 8 is a Digital Video Disc (“DVD”). The DVD contains, in the main, duplicates of documents that are admissible, and duplicates are generally admissible under Fed.R.Evid. 1003 and 1005. The DVD simply organizes these documents, audiotapes, and videotapes in an electronic format that is easier to follow, and places deposition testimony in context.
The summary was produced by a litigation support company using a PowerPoint format. It was then transferred to DVD for ease of use. It will play in a standard DVD player.
Each “slide” in the DVD summary has an identifying number in the bottom right comer. That number corresponds to the same numbered page in the color printout of the presentation, Exhibit 9. The Index of Exhibits that is attached to the “paper” exhibits is cross-referenced to each slide. Thus, when slide “X” is shown on the screen, a printed copy of that slide is found in Exhibit 9 and the corresponding hard copy of the actual document can be immediately located using the cross- reference in the Index of Exhibits.
The MdTA police reports, videotapes, and audiotapes are public records and reports (Fed.R.Evid. 901 (b)(7)), and it is not believed that there are any authentication issues…..
Defendants request that the Court review Exhibit 8 at this time. It will take approximately 21 minutes to view and listen to the DVD.
Defendants’ Memorandum in Support of Motion for Summary Judgment, 2003 WL 24301238 (D.Md.)(emphasis added).
Composite evidence must be carefully prepared; however, it can be an important and persuasive tool.
