MD high court rules video of Baltimore shooting was properly authenticated; AI concerns unaddressed

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A trial court properly authenticated video footage of a Baltimore shooting through circumstantial evidence and testimony, the Maryland Supreme Court held in a ruling that declined to address the authentication of manipulated video, or artificial intelligence.

In a 6-1 opinion with Justice Shirley M. Watts writing for the majority, the Maryland Supreme Court found authentication occurred even where a witness who testified about the video did not have personal knowledge of all the events depicted in the video.

In a matter of first impression, the high court also determined that the “reasonable juror” test applies to the authentication of videos, meaning sufficient evidence must exist for a reasonable juror to find by a preponderance of the evidence that the video is authentic.

“We have never held that the ‘pictorial testimony’ and ‘silent witness’ theories of authentication—or the ‘business record’ theory, for that matter—are the only ways to authenticate a video, or that a video cannot be authenticated through other means,” Watts wrote, noting that the Maryland rules permit authentication through circumstantial evidence.

During oral argument, Michelle Martz, counsel for appellant Christopher Mooney, contended that because no one viewed the shooting and the witness’ 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.

A jury for the Baltimore City Circuit Court 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.

Martz and counsel for the state of Maryland declined to comment on the high court’s ruling.

In finding the Baltimore City Circuit Court did not abuse its discretion in admitting the video because the video was properly authenticated through witness testimony and circumstantial evidence, the high court determined that a reasonable juror could have found the video to be a fair and accurate video of the shooting and the events surrounding the shooting.

According to the high court, the fact that a source not connected to either Mooney, the witness or police recovered the video “supports the conclusion that there was sufficient circumstantial evidence for a reasonable juror to find by a preponderance of the evidence that the video was what it was claimed to be.”

At trial, the witness and victim of the shooting 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 in the back near his spine but did not penetrate his body. Police soon afterwards obtained a neighbor’s Ring video footage of the shooting.

But the high court did not go so far as to address the authentication of video evidence that has been subject to manipulation, or artificial intelligence, finding instead that “at this time, video footage can be authenticated through vigilant application of existing methods for authentication of evidence.”

Michael Belsky, partner and trial attorney at Schlachman, Belsky, Weiner & Davey Law, said he thinks the court’s opinion will be short-lived and may be replaced by rules that address the reality of modern technology.

“The giant elephant in the room is that traditional rules of authentication don’t necessarily apply to nontraditional means of technology, and the fact is artificial intelligence is already upon us,” Belsky said in a phone call Wednesday. “We’re in an age where it is impossible for a reasonable juror to distinguish between what’s real and fake.”

In the court’s dissenting opinion, Justice Steven B. Gould pointed to this notion.

“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,” Gould wrote, adding that he would have held the trial court should not have admitted the entire video but instead edited out the parts where the witness lacked personal knowledge.

In a concurring opinion, Chief Justice Matthew Fader noted the concerns of artificial intelligence but emphasized that Mooney’s case had no suggestion of the presence of artificial intelligence or 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,” Fader wrote.