ALLAN JACKSON v. STATE OF MARYLAND
Court of Appeals of Maryland, Greene, July 12, 2018,
Evidence – Authentication – A video is “what it’s claimed to be” when there’s enough evidence for the jury to reasonably find that it shows the events at the date/time of the timestamp on the video, even if the witness authenticating the video misstates the time.

Facts:
Allan Jackson was charged with a 2015 home invasion in Baltimore City where Jackson pushed his way into the victim’s home and demanded money from the victim at knife-point. The victim gave up his PNC ATM card and PIN. Jackson then stole the victim’s van and used the bank card at an ATM to make four withdrawals from a Bank of America ATM in Brooklyn/Curtis-Bay.
At trial, the State introduced two ATM receipts that were recovered from the stolen van as well as two still photographs from a surveillance video at the ATM location; two videos containing surveillance video footage from two of the ATMs used; and a bank statement from the victim’s checking account.
The State introduced the ATM video by having a Bank of America employee testify that he viewed the video and then sent a request to his video department to have video from those ATMs and those time periods sent to the detective. The Bank of America employee testified that the video used at trial was the same video that he pulled up and watched earlier for those ATMs at the designated dates/times. Unfortunately, the bank employee testified that the video showed an ATM transaction at 2343 hours when the video itself showed that it went from 2315 to 2335 hours.
Jackson objected to use of the videotape, arguing that it was not proper.
The trial court overruled the objection, holding that “the receipts are in evidence already showing what dates and times [of the withdraws]. The relevance is conditional on the State tying it together, but the jury would certainly have a basis to believe that these are the appropriate time corresponding to those receipts and that’s all that’s necessary to bring it in as authentic. Whether the State ultimately ties it all together would be a matter of convincing the jury that it all relates. But the foundation is sufficient to show that these are fair and accurate reproductions of what those cameras captured at those particular times.”
Jackson was convicted of first-degree assault and theft.
Jackson appealed, arguing that the videos were improperly used as evidence.

Held: The Court of Appeals agreed with the trial court. There was enough evidence that the video was what it was claimed to be for it to be considered “authenticated” and used in the trial. The fact that the witness said a different time did not “de-authenticate” the video because the jury could reasonably find that the video was what it said it was (at the times it showed).

Evidence – Authentication – Evidence must be “authenticated” in order to be introduced at trial. This means that some proof must be shown that the evidence is what it’s claimed to be.

Evidence – Authentication – Authentication generally requires “laying a foundation.” This “foundation” supports the admissibility of the evidence. Without a foundation, the evidence cannot be used in court.

Evidence – Authentication – Evidence can be “authenticated” in many ways. For example:
– A witness can testify that the evidence is what it’s claimed to be
– Someone familiar with handwriting or a voice can testify that it’s genuine
– Circumstantial evidence can be used to show that it’s authentic based on appearance, contents, distinctive characteristics, etc.

Evidence – Authentication – Evidence is “authenticated” if enough proof is provided to allow a judge or jury to reasonably find that the evidence is what it’s claimed to be. This does not require absolute (100%) proof.

Videotapes and Photographs – Videos and photos may be authenticated by:
– first-hand knowledge (someone testifies that the video or photo shows what it’s supposed to show)
– or as a “silent witness” (it was operating properly, transferred properly, and shows what happened at that date/time)

Video/Photo Evidence – Silent Witness – Video/photo evidence may be authenticated by showing that it was taken and reproduced under circumstances suggesting that it’s a reliable depiction of what actually happened at that time/place.

From the Case: “The State elicited through Mr. Cunningham’s testimony the process of reproduction, the reliability of that process, and whether the reproduction was a fair and accurate representation of what the witness had viewed when he submitted a request for the video footage to the Bank of America team in North Carolina. We cannot say that Mr. Cunningham’s testimony failed in any respect to properly authenticate the surveillance video footage.”

Self-Authentication – Certain types of evidence can be authenticated without having a witness testify that they are what they’re claimed to be. These include:
– Public records
– Official publications
– Newspapers

Business Records – Custodian Authentication – Records that an organization keeps in the ordinary course of business may be authenticated by an accompanying certification by a custodian of records or other qualified individual.

Business Records – Authentication – Business records are not required to be accompanied by a certification by a custodian of record; they can also be authenticated in the normal way by witness testimony or even “sometimes be authenticated by circumstantial evidence of the manner of creation and nature of the document involved.”

From the Case: The victim’s bank records were authenticated when the victim testified that the records introduced were the ones he received after he “went to his bank after the incident, told the bank what happened, and explained that he needed to know how much money had been withdrawn from his account.” The victim testified that “he received the statements directly from his bank’s personnel.” In addition to the victim’s testimony, the bank records’ authenticity was bolstered “because the receipts each showed a withdrawal of $200 with an additional $3
fee for ‘ATM Owner Fee.’ This amount, $203, appeared on the monthly statement” that the victim introduced at trial.

Business Records – Hearsay – Business records are generally exempt from the hearsay rule if they were made near the time that they’re supposed to reflect, were made by someone with knowledge, were made in the ordinary course of business activity, and it’s the regular practice of the business to keep that record.

From the Case: “The rationale for admitting bank records as an exception to hearsay is that ‘bank records, particularly when the bank has no stake in the outcome of litigation, have a strong indicia of reliability.'”