MD high court hears argument on authentication of video of a Baltimore shooting

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The Maryland Supreme Court heard arguments Monday concerning the authentication of video of a Baltimore shooting, where the witness and victim of the shooting did not see the entirety of the events depicted in the video.

Counsel for Christopher Mooney argued before the high court, which included Senior Justice Michele D. Hotten, that the court should reiterate the pictorial testimony theory’s requirement that the sponsoring witness have firsthand knowledge and witness the entirety of the video, particularly when the full video and the portion of the video not seen by the witness shows the crime.

Michelle Martz, counsel for Mooney, contends that because no one viewed the shooting and the witness’s back was facing Mooney when the witness was shot in the back, the portion of the video showing the shooting should not have been admitted. The video could have been intentionally or unintentionally altered, Martz said.

But the state challenged Martz’s notion of the potential existence of evidence tampering and said the court should not adopt a new framework for authenticating different items of evidence.

“In the many cases that I have looked at, I have not seen any case where there was an allegation that the video was tampered with,” said Virginia Hovermill, assistant attorney general and counsel for Maryland. “The speculative claim that something could have been tampered with goes to the question of weight and not admissibility.”

In an unreported opinion written by Senior Judge James R. Eyler and decided in October of last year, the Maryland Appellate Court affirmed the Baltimore City Circuit Court’s ruling that found Mooney guilty of second-degree assault, reckless endangerment and illegal handgun possession, among other charges, stemming from a September 2021 shooting outside a medical marijuana dispensary in Baltimore.

At trial, the witness testified that Mooney stopped behind his vehicle, fired shots into the back of the vehicle and fled the scene. One of the bullets struck the witness’s back near his spine but did not penetrate his body. Police soon afterwards obtained a neighbor’s Ring video footage of the shooting.

Martz argued on Monday that the circumstantial evidence alone could lead to difficult problems within the trial process, noting there should be a carve-out in this case. Additionally, Martz said, there is a shift between the role of the judge as a gatekeeper versus the role of the judge to ensure that the evidence is genuine for the jury to then evaluate it.

“This court knows the capabilities of even the unintentional pre-filtering — it’s out there,” Martz said. “To be in front of it would be something that would prevent the 10 or 20 years having to look back and say, ‘we wish we would have thought of this more carefully.’”

Hovermill said that while the types of testimony available to use has expanded—with courts one hundred years ago using firsthand testimony because that was the only option available, to now having access to video testimony—video testimony is compelling and difficult to argue with.

“I’ll be curious to see as we see the evolution of AI… whether prosecutors, or in civil cases, any proponent, start shifting toward firsthand testimony as more reliable because it can’t be faked,” Hovermill said. “A jury seeing a person sitting in front of them may find that more compelling as an authentication basis or as simply going to the weight of the evidence.”

But that’s not the question in this case, Hovermill said, noting there was no evidence of tampering.

“For this court to adopt a completely new framework for video evidence based on a susceptibility to tampering that has as yet not even been established… would be to go down a road that simply isn’t appropriate based on what this court’s cases have said in the past,” Hovermill said.