Mooney v. State

Christopher Mooney v. State of Maryland, No. 32, September Term, 2023 “REASONABLE JUROR” TEST – AUTHENTICATION THROUGH TESTIMONY OF WITNESS WITH KNOWLEDGE UNDER MARYLAND RULE 5-901(b)(1) – AUTHENTICATION THROUGH CIRCUMSTANTIAL EVIDENCE UNDER MARYLAND RULE 5-901(b)(4) – Supreme Court of Maryland held that “reasonable juror” test applies to authentication of videos—i.e., for trial court to admit video, there must be sufficient evidence for reasonable juror to find by preponderance of evidence that video is what it is claimed to be. Supreme Court concluded that video can be authenticated through circumstantial evidence under Maryland Rule 5-901(b)(4). Supreme Court held that trial court did not abuse its discretion in admitting video, as video was properly authenticated through combination of testimony of witness with knowledge under Maryland Rule 5-901(b)(1) and circumstantial evidence under Maryland Rule 5- 901(b)(4), and reasonable juror could find by preponderance of evidence that video was what it purported to be—namely, fair and accurate video of shooting and events surrounding it. Supreme Court concluded that portions of video depicting events that victim saw or participated in were properly authenticated through victim’s testimony under Maryland Rule 5-901(b)(1), as witness with knowledge of events; and portion of video depicting shooting (which victim did not see) was properly authenticated through circumstantial evidence under Maryland Rule 5-901(b)(4), as there was circumstantial evidence from which reasonable juror could have inferred that video fairly and accurately depicted shooting.

Circuit Court for Baltimore City Case No. 121280030 Argued: June 3, 2024 IN THE SUPREME COURT OF MARYLAND No. 32 September Term, 2023 ______________________________________ CHRISTOPHER MOONEY v. STATE OF MARYLAND ______________________________________ Fader, C.J. Watts Booth Biran Gould Eaves Hotten, Michele D. (Senior Justice, Specially Assigned), JJ. ______________________________________ Opinion by Watts, J. Fader, C.J., concurs. Gould, J., dissents. ______________________________________ Filed: August 13, 2024 Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2024.08.13 09:43:15 -04'00' Gregory Hilton, Clerk In this case, we must determine whether video footage can be authenticated through circumstantial evidence rather than by methods that have been described as the “pictorial testimony” or the “silent witness” theories of authentication, which require testimony by a witness with personal knowledge of the content of the video or testimony concerning the method of production of the video, respectively. More specifically, the question in this case is whether video footage was properly authenticated through circumstantial evidence where a witness who testified about the content of the video did not have personal knowledge of all of the events depicted in the video.

In addition, we must determine whether the “reasonable juror” test—under which there must be sufficient evidence for a reasonable juror to find in favor of authentication by a preponderance of the evidence— applies to authentication of videos. See State v. Sample, 468 Md. 560, 597 , 228 A.3d 171, 194 (2020). Maryland Rule 5-901(a) provides that “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Maryland Rule 5-901(b) sets forth a nonexclusive list of ways to authenticate evidence. Under Maryland Rule 5-901(b)(1), evidence can be authenticated through the testimony of a witness with knowledge that the evidence is what it is claimed to be.

Under Maryland Rule 5-901(b)(4), evidence can be authenticated through “[c]ircumstantial evidence, such as appearance, contents, substance, internal patterns, location, or other distinctive characteristics, that the offered evidence is what it is claimed to be.” We have previously discussed three theories of authentication for videos. See Dep’t of Pub. Safety & Corr. Servs. v. Cole, 342 Md. 12, 20-21, 30 , 672 A.2d 1115, 1119-20, 1124 (1996).

First, under the “pictorial testimony” theory of authentication, a video can be authenticated where a “witness testifies from first-hand knowledge that the [video] fairly and accurately represents the scene or object it purports to depict as it existed at the relevant time.” Id. at 20-21 , 672 A.2d at 1119 (cleaned up). The “pictorial testimony” theory of authentication corresponds to Maryland Rule 5-901(b)(1). Second, under the “silent witness” theory of authentication, a video can be authenticated where there is “an adequate foundation assuring the accuracy of the process producing” the video. Cole, 342 Md. at 21 , 672 A.2d at 1119-20 (cleaned up).

Such a foundation can be laid where, for instance, a witness testifies about “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.” Jackson v. State, 460 Md. 107, 117 , 188 A.3d 975, 981 (2018) (cleaned up). The “silent witness” theory of authentication corresponds to Maryland Rule 5-901(b)(9), under which an exhibit can be authenticated through “[e]vidence describing a process or system used to produce the proffered exhibit or testimony and showing that the process or system produces an accurate result.”1 1 We have also explained that a video can be authenticated as a business record. See Cole, 342 Md. at 30 , 672 A.2d at 1124 . This theory of authentication corresponds to Maryland Rule 5-902(12), under which an exhibit is considered self-authenticating where, among other conditions, the exhibit satisfies the requirements for the “business record” hearsay exception under Maryland Rule 5-803(b)(6).

One of those requirements is establishing that “the regular practice of [the] business was to make and keep the” exhibit. Md. R. 5-803(b)(6)(D). -2- In the Circuit Court for Baltimore City, after a trial by jury, Petitioner, Christopher Mooney, was found guilty of second-degree assault, reckless endangerment, possession of a regulated firearm after conviction of a disqualifying crime, wearing, carrying, or transporting a handgun, illegal possession of ammunition, and discharging a firearm in Baltimore City. The events underlying the verdict involved the nonfatal shooting of Joshua Zimmerman in his vehicle outside of a medical cannabis dispensary in Baltimore City. As a witness for the State, Mr. Zimmerman testified that he was shot in the back while sitting in the driver’s seat of his vehicle.

Over objection, during Mr. Zimmerman’s direct examination, the circuit court admitted into evidence a video, retrieved by a detective, that had been recorded by a camera mounted on the exterior wall of a residence near the site of the shooting.2 The video was 1 minute and 51 seconds long. Before admission of the video, Mr. Zimmerman testified that, in the months prior to the shooting, he had suspected Mr. Mooney of sleeping with his girlfriend, but Mr. Mooney had denied the allegation. Mr. Zimmerman testified that, on the night of the shooting, Mr. Mooney walked past his vehicle and the two had a brief exchange of words in which he called Mr. Mooney a “b[****].” Mr. Zimmerman testified that Mr. Mooney walked past his vehicle immediately before the shooting and that, after Mr. Mooney passed the vehicle, he was shot from behind. Mr. Zimmerman did not testify that he saw the shooter at the time of the shooting. 2 In his brief in this Court, Mr. Mooney states that “[t]he incident was purportedly captured on a ‘Ring’ camera from a nearby residence and a copy of the video was recovered by police.” The video itself displays the Xfinity logo in the upper-right corner. -3- Mr. Zimmerman testified that he had watched the video in preparation for trial and that the video was a true and accurate depiction of the events that occurred on the night of the shooting and did not appear to have been altered or edited.

After the video was admitted into evidence, Mr. Zimmerman identified Mr. Mooney as the person depicted on the video in the white shirt “walking around” and confirmed that the footage depicted him exiting the vehicle holding his back, because that is where he was shot, and running to a nearby McDonald’s. During the State’s closing argument, the prosecutor contended that the video showed Mr. Mooney walk past Mr. Zimmerman’s vehicle and shoot him from behind. In this Court, Mr. Mooney contends that, although the methods of authentication listed in Maryland Rule 5-901(b) are non exhaustive, none of the methods are universally applicable. Mr. Mooney asserts that the Appellate Court of Maryland erred in concluding that video evidence could be authenticated through circumstantial evidence under Maryland Rule 5-901(b)(4) and that this Court’s holding in Sample, 468 Md. at 567-68 , 228 A.3d at 176 , and the “reasonable juror” test do not apply to authentication of video evidence.

Mr. Mooney’s position is that our decision in Washington v. State, 406 Md. 642, 652 , 961 A.2d 1110, 1116 (2008), stands for the proposition that video footage can be authenticated under only two methods, which he summarizes as follows: the “pictorial testimony” theory, which “requires a human being to be able to swear they personally perceived what the photograph portrayed[,]” and the “silent witness” theory, under which “a witness can speak to the reliability and authenticity of the system used to procure the video, thus permitting the video to speak for itself.” (Cleaned up). The State responds that the “pictorial testimony” and “silent witness” methods of -4- authentication are not the exclusive ways to authenticate video footage. The State argues that “the authentication rule requires only that a ‘reasonable juror’ could find that a particular item is what the proponent claims it to be.” The State maintains that a variety of cases from federal and other State courts, as well as decisions of the Appellate Court, permit authorization of video footage by means that include circumstantial evidence. We hold that, for video footage to be admissible, as with other evidence, there must be sufficient evidence for a reasonable juror to find by a preponderance of the evidence that the video is what it is claimed to be.

In other words, the “reasonable juror” test applies to authentication of videos—i.e., for a trial court to admit a video, there must be sufficient evidence for a reasonable juror to find more likely than not that the evidence is what it is purported to be. In addition, we hold that, like other evidence, video footage can be authenticated in a variety of ways, including through circumstantial evidence under Maryland Rule 5-901(b)(4). We conclude that the video footage at issue in this case was properly authenticated through a combination of the testimony of a witness with knowledge under Maryland Rule 5-901(b)(1) and circumstantial evidence under Maryland Rule 5-901(b)(4), as a reasonable juror could have found by a preponderance of the evidence that the video was what it purported to be—namely, a fair and accurate depiction of Mr. Zimmerman’s shooting and the events occurring before and after it. The parts of the video depicting the events that Mr. Zimmerman saw, or participated in, before and after the shooting were properly authenticated through his testimony under Maryland Rule 5-901(b)(1) as a witness with personal knowledge of the events. -5- The part of the video depicting the shooting was properly authenticated through circumstantial evidence under Maryland Rule 5-901(b)(4), as there was sufficient circumstantial evidence from which a reasonable juror could have inferred that the video fairly and accurately depicted the shooting.

The close temporal proximity of the shooting to the events occurring immediately before and after the shooting, of which Mr. Zimmerman had personal knowledge, gave rise to the reasonable inference that the video accurately depicted the shooting. In addition, Mr. Zimmerman testified that the video truthfully and accurately depicted the events that he saw and did not appear to have been edited or altered. There also was evidence of the nature and origin of the video, from which a reasonable juror could have inferred that the video was recorded the night of the shooting by a source or third party not connected to law enforcement or involved with the shooting, as a detective testified that he obtained the video from an individual who lived nearby and had a camera mounted on the exterior wall of his residence. These circumstances are not intended to be exhaustive or all inclusive of the circumstances that may permit authentication of video footage under Maryland Rule 5- 901(b)(4).

The authentication of video footage involves a fact-specific inquiry that will vary from case to case. As with all determinations with respect to authentication under Maryland Rule 5-901(b), a trial court must assess on a case-by-case basis whether there is sufficient evidence for a reasonable juror to conclude more likely than not that video footage is what the proponent claims it to be. For the reasons discussed below, we conclude that the circuit court did not abuse its discretion in admitting the video and affirm the judgment of the Appellate Court of -6- Maryland. BACKGROUND Proceedings in the Circuit Court The State charged Mr. Mooney with multiple offenses, including attempted first- degree murder of Mr. Zimmerman.

At trial, as a witness for the State, Mr. Zimmerman testified as follows. He and Mr. Mooney met each other at least approximately a decade before trial. Sometime during the summer of 2021, Mr. Zimmerman asked Mr. Mooney whether he and Mr. Zimmerman’s girlfriend, who is also the mother of Mr. Zimmerman’s child, were “sleeping around.” Mr. Mooney responded that they were not, which Mr. Zimmerman believed to be a lie because his girlfriend later admitted that she and Mr. Mooney were sleeping together. On the evening of September 3, 2021, around 8:30 p.m. or 9:00 p.m., Mr. Zimmerman purchased medical cannabis from a dispensary on Falls Road in the Hampden neighborhood of Baltimore City.

Mr. Zimmerman returned to his vehicle, which was parked on Falls Road, and telephoned his girlfriend. Within a few minutes of finishing the call, Mr. Zimmerman saw Mr. Mooney walking down the street toward him. The area had lights. Mr. Zimmerman had the windows of his vehicle rolled down, and nothing was obstructing his view of Mr. Mooney, who was not wearing a face mask.

Mr. Mooney asked Mr. Zimmerman: “[W]hat’s up[?]” Mr. Zimmerman responded: “[Y]ou’re a b[****.]” Mr. Mooney “slowed down, like he was about to say something.” But, instead of saying anything, Mr. Mooney kept walking until he was out of Mr. Zimmerman’s sight. Mr. Zimmerman thought that Mr. Mooney was going to approach the driver’s side of his -7- vehicle, so he opened the door of his vehicle and looked around, but he did not see Mr. Mooney. As soon as Mr. Zimmerman sat back in the driver’s seat, he heard gunshots and was shot. Mr. Zimmerman testified: “I cracked my door and I’m looking out and I didn’t see him.

As soon as I sat back that’s when the gunshots happened.” Mr. Zimmerman suffered a wound to his back. Before requesting that the video be admitted into evidence, the prosecutor displayed an image from the video, which had been marked for identification as State’s Exhibit 1A, and asked Mr. Zimmerman whether he recognized it. Mr. Zimmerman responded that he did and explained that the image showed him in his vehicle, the dispensary, a few houses, and a parking lot. Next, the following exchange occurred: [PROSECUTOR:] And is this an accurate depiction of the night? [MR.

ZIMMERMAN:] Absolutely. [PROSECUTOR:] Okay. And it’s a true depiction of what you recall? [MR. ZIMMERMAN:] Yes. [PROSECUTOR:] It doesn’t look like there’s been any alterations or edits -- [MR. ZIMMERMAN:] Absolutely. [PROSECUTOR:] -- to it?

Okay. *** [PROSECUTOR:] [T]his is what you know to be the 3900 block of Falls Road? [MR. ZIMMERMAN:] Yes, sir. [PROSECUTOR:] Okay. I will play little bit for you as well. (Playing 1A -8- for the witness.) And does there appear to be any edits or changes to the video as I played it for you? [MR.

ZIMMERMAN:] No. (Paragraph breaks omitted). The prosecutor offered the video, State’s Exhibit 1A, into evidence, and Mr. Mooney’s counsel objected. The circuit court initiated a bench conference, during which the following exchange occurred regarding authentication of the video: [MR. MOONEY’S COUNSEL]: I mean, there’s no way to know if that video’s been altered.

It’s somebody else’s Ring camera. These aren’t still photographs of what happened. THE COURT: Has he watched it? [MR. MOONEY’S COUNSEL]: I mean -- THE COURT: I don’t think that’s necessarily -- [MR.

MOONEY’S COUNSEL]: And that was other -- THE COURT: -- a difference between still photographs and[] video. If he’s able to authenticate it, he’s able to authenticate it, but I don’t[ --] [MR. MOONEY’S COUNSEL]: Right. But I don’t know that he watched the whole thing either -- THE COURT: I don’t know either. [MR.

MOONEY’S COUNSEL]: -- which is what I wanted to voir dire him on. THE COURT: Yeah. [PROSECUTOR]: He has watched it in view, in preparation of this trial, he has -- THE COURT: Well, you -- you can ask him all that before, you haven’t laid the appropriate foundation for it yet. I don’t know if that video -- -9- [PROSECUTOR]: He’s authenticated it as to be the date and the time of the incident, it was a true and accurate reflection of that date and time. THE COURT: There are other questions you need to ask him, like, has he watched it. [PROSECUTOR]: Okay.

THE COURT: And is it a fair and accurate representation of what happened. I mean, I’m not trying -- [PROSECUTOR]: Okay. THE COURT: Ask some more foundational questions. [PROSECUTOR]: Sure. After the bench conference concluded, the following exchange occurred between the prosecutor and Mr. Zimmerman: [PROSECUTOR:] Did you watch this video in preparation? [MR.

ZIMMERMAN:] Yes, I did. [PROSECUTOR:] Okay. And after seeing that video[,] was that a true and accurate depiction of the events that occurred that day? [MR. ZIMMERMAN:] Yes. [PROSECUTOR:] And there was nothing that was changed or altered? [MR. ZIMMERMAN:] No. [PROSECUTOR:] From your recollection thereof? [MR.

ZIMMERMAN:] No. The prosecutor again offered State’s Exhibit 1A into evidence, and the circuit court stated that it would admit the exhibit over objection. The video, which lasts 1 minute and 51 - 10 - seconds, was played for the jury. In his brief in this Court, Mr. Mooney described the content of the video as follows: State’s #1A is a 1 minute and 51 second video showing a black SUV parked on the street with what appears to be a person in the front driver’s seat of the vehicle. A person in a white shirt walks up the street, passing by the SUV on the passenger side, and then walks past the vehicle.

That person appears to stop, turn around, pull something from their waist, walk back towards the rear of the black SUV point something at the rear of the SUV, raise their hand and a few flashes come from the object in the person’s hand. The person then turns and quickly walks off the screen to the right. The person in the driver’s seat of the black SUV gets out of the SUV and walks quickly in the other direction off camera crossing the street. That same person returns later to the black SUV and appears to be talking on a phone.

(State’s #1A “Mooney_Shooting_video.dat”). While the video was being played for the jury, the following exchange occurred between the prosecutor and Mr. Zimmerman: [PROSECUTOR:] Now, Mr. Zimmerman, I’m going to ask who is that individual in the white shirt walking around? [MR. ZIMMERMAN:] Uh, that was, um, Christopher Mooney. [PROSECUTOR:] In the white shirt? [MR. ZIMMERMAN:] In the white shirt? [PROSECUTOR:] Correct. [MR.

ZIMMERMAN:] I don’t -- I don’t know. I just know of him, that’s it. [PROSECUTOR:] Who was the individual that exited the driver’s seat of the SUV? [MR. ZIMMERMAN:] Oh, that was me. [PROSECUTOR:] Okay. [MR. ZIMMERMAN:] I had a pink shirt on. - 11 - [PROSECUTOR:] Okay.

Pink, my apologies -- [MR. ZIMMERMAN:] Yeah, pink -- [PROSECUTOR:] -- my eyes -- [MR. ZIMMERMAN:] -- shirt on. [PROSECUTOR: Um, and were you holding your back? [MR. ZIMMERMAN:] Yes. [PROSECUTOR:] Why were you holding your back? [MR.

ZIMMERMAN: Um, because that’s where I was hit at with the bullet. After the video had been played, the following exchange occurred: [PROSECUTOR:] Now, Mr. Zimmerman, we saw you run off the screen in State’s Exhibit 1A, correct? [MR. ZIMMERMAN:] Yes. [PROSECUTOR :] Okay. Where did you run off to? [MR.

ZIMMERMAN:] I ran to the McDonald[’]s. [PROSECUTOR:] Okay. Mr. Zimmerman identified Mr. Mooney as the person in the video wearing the white shirt and identified himself as the person in the pink shirt. The circuit court also admitted into evidence, without objection, two other videos, identified as State’s Exhibits 1B and 2, and the videos were played for the jury. Mr. Zimmerman testified that State’s Exhibit 1B showed Mr. Mooney in front of an SUV.

State’s Exhibit 1B does not show the shooting.3 3 During the State’s closing argument, however, the prosecutor indicated that three shots could be heard in State’s Exhibit 1B. State’s Exhibit 1A did not have audio. - 12 - Mr. Zimmerman testified that State’s Exhibit 2 showed the inside of the McDonald’s near the dispensary, where he went after he was shot. As a witness for the State, Detective Victor Liu of the Baltimore Police Department testified that, on September 3, 2021, he responded to a report of “a shooting incident in the 3900 block of Falls Road.” There, Detective Liu saw an SUV with bullet holes in the back and whose rear window had been “shot out.” Detective Liu testified that Mr. Zimmerman said that Mr. Mooney shot him. The prosecutor displayed an image from State’s Exhibit 1A and asked Detective Liu whether he recognized it.

Detective Liu responded that he did and explained that the image was from “the video [that he] recovered from the crime scene.” Detective Liu testified that, when responding to a crime scene, the first thing that officers do is identify “possible witnesses and look for cameras[.]” Detective Liu testified: “[It] just so happened this gentleman had a camera that’s mounted on an exterior wall . . . of his residence, so [] I spoke with the [] individual who provided that[] footage for me[.]” The jury found Mr. Mooney guilty of second-degree assault, reckless endangerment, and gun offenses.4 Mr. Mooney was sentenced to 10 years of imprisonment for second- degree assault, 15 years consecutive for possession of a firearm by a prohibited person, with the first 5 years to be served without parole, 3 years consecutive for possession of a handgun, and 1 year concurrent for both possession of ammunition by a prohibited person 4 The jury found Mr. Mooney not guilty of attempted first-degree murder, attempted second-degree murder, and first-degree assault. - 13 - and discharging a firearm in Baltimore City.5 Mr. Mooney appealed. Opinion of the Appellate Court of Maryland The Appellate Court of Maryland affirmed Mr. Mooney’s convictions, explaining that the video was properly authenticated through the testimony of a witness with knowledge under Maryland Rule 5-901(b)(1) and under Maryland Rule 5-901(b)(4), which provides that evidence can be authenticated by circumstantial evidence. See Christopher Mooney v. State, No. 1561, Sept. Term, 2022, 2023 WL 6783388 , at ⁵ (Md. App. Ct. Oct. 13, 2023). The Appellate Court did not adopt Mr. Mooney’s position that the foundational requirements for authentication were not met because Mr. Zimmerman could not authenticate the video under the “pictorial testimony” method of authentication, as he was not a witness to the entirety of the video.

See id. at ⁴. The Appellate Court stated that “videos may be authenticated under several theories, including the ‘pictorial testimony’ theory[.]” Id. at ² (cleaned up). The Appellate Court explained that the test for authentication of a video is not as strict as Mr. Mooney contended, as there need only be sufficient evidence for a reasonable juror to determine that the video is what the proponent claims. See id. ², ⁴.

The Appellate Court concluded that the circuit court did not abuse its discretion in admitting the video and that, although Mr. Zimmerman did not see the shooter at the time that he was shot, that circumstance went to the weight to be given Mr. 5 The reckless endangerment conviction merged with the second-degree assault conviction for sentencing purposes. - 14 - Zimmerman’s testimony, not the admissibility of the video. See id. at ⁵.6 Petition for a Writ of Certiorari On November 30, 2023, Mr. Mooney petitioned for a writ of certiorari, raising the following issue: “Whether the Appellate Court lowered the requirement for authentication of video evidence through the ‘pictorial testimony theory’ of admission when the authenticating witness did not witness the entirety of the events depicted in it?” On February 16, 2024, we granted the petition. See Mooney v. State, 486 Md. 387 , 310 A.3d 651 (2024). DISCUSSION A. Standard of Review An appellate court reviews for abuse of discretion a trial court’s determination as to whether an exhibit was properly authenticated.

See Sample, 468 Md. at 588 , 228 A.3d at 189 ; Sublet v. State, 442 Md. 632, 676 , 113 A.3d 695, 721 (2015); Griffin v. State, 419 Md. 343, 357 , 19 A.3d 415, 423 (2011). B. Authentication of Evidence: The “Reasonable Juror” Test “[T]he bar for authentication of evidence is not particularly high.” Sublet, 442 Md. at 666 , 113 A.3d at 715 (cleaned up). In Sublet, id. at 638 , 113 A.3d at 698 , we adopted a straightforward test for authentication of social media evidence, holding that, “to authenticate evidence derived from a social networking website, the trial judge must 6 The Appellate Court also held that Mr. Mooney preserved for appellate review his contention that the video was not properly authenticated. See Mooney, 2023 WL 6783388 , at ⁴.

That issue is not before us. - 15 - determine that there is proof from which a reasonable juror could find that the evidence is what the proponent claims it to be.” We applied the “reasonable juror” test to authentication of social media evidence in Sublet, and, subsequently, in Sample, 468 Md. at 567-68 , 228 A.3d at 176 , we concluded that the preponderance of the evidence standard applies to the “reasonable juror” test. The history of the “reasonable juror” test in our case law began even earlier, with Griffin, 419 Md. 343 , 19 A.3d 415 . In Griffin, id. at 357-58 , 19 A.3d at 423-24 , we held that the trial court abused its discretion in admitting the social media evidence at issue.7 We declined to establish a bright-line test for authentication of social media evidence. See id. at 363 , 19 A.3d at 427 .

Rather, we discussed a variety of ways in which social media evidence could be authenticated, such as through testimony of a person with knowledge (for instance, the purported author of a post or message), inspecting the device of the person who allegedly created the post or profile at issue to determine whether the device was used to create the profile or post, or obtaining information from the social media company that 7 At trial, the State had attempted to introduce evidence that was purportedly a printout from the MySpace page of the girlfriend of the defendant (whose nickname was allegedly “Boozy”) to demonstrate that the girlfriend had threatened a State’s witness. See Griffin, 419 Md. at 350 , 19 A.3d at 419 . The page contained language stating: “‘FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!!

U KNOW WHO YOU ARE!!’” Id. at 350 , 19 A.3d at 419 . The State did not attempt to authenticate the page through the testimony of a witness with knowledge, i.e., the girlfriend, but instead attempted to authenticate the printout through the testimony of an investigator. See id. at 348 , 19 A.3d at 418 . We determined that the printout was not sufficiently authenticated through circumstantial evidence under Maryland Rule 5-901(b)(4) because a photograph of the defendant’s girlfriend and information about her date of birth and the town in which she lived on the page were not “distinctive characteristics” that sufficiently indicated that the girlfriend created the profile or wrote the post that the State sought to introduce into evidence.

Id. at 357 , 19 A.3d at 424 . - 16 - would connect the profile or post to the person who created it. See id. at 363-64 , 19 A.3d at 427-28 . In a dissenting opinion joined by the Honorable Joseph F. Murphy, Jr., the Honorable Glenn T. Harrell, Jr. stated that he would have adopted the “reasonable juror” test used by United States Courts of Appeals for authentication of social media evidence because it was consistent with Maryland Rule 5-901. See id. at 366 , 19 A.3d at 429 (Harrell, J., dissenting).

Judge Harrell explained that, in his view, applying the reasonable juror test would have led to the conclusion that the social media evidence at issue was properly authenticated. See id. at 367 , 19 A.3d at 429 (Harrell, J., dissenting). Four years later, in Sublet, 442 Md. at 637-38 , 113 A.3d at 697-98 , we adopted the reasonable juror test for social media evidence and applied it in the three cases that were consolidated for purposes of the opinion: Sublet v. State, Harris v. State, and Monge- Martinez v. State. We explained that, in United States v. Vayner, 769 F.3d 125 (2d Cir. 2014), the Second Circuit had determined that Federal Rule of Evidence 901 “is satisfied if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification.” Sublet, 442 Md. at 666 , 113 A.3d at 715 (quoting Vayner, 769 F.3d at 129-30 ) (internal quotation marks omitted).

In Sublet, id. at 638, 113 A.3d at 698 , we held that social media evidence is authenticated under Maryland Rule 5-901 where a trial court determines that a reasonable juror could find that the evidence is what the proponent claims it to be. Five years later, in Sample, 468 Md. at 567-68 , 228 A.3d at 176 , we concluded that the “reasonable juror” test is subject to the preponderance of the evidence standard, i.e., - 17 - the more likely than not standard, and we reaffirmed that, under Maryland Rule 5- 901(b)(4), social media evidence may be authenticated through circumstantial evidence. We stated that, with respect to the authentication of social media evidence through circumstantial evidence under Maryland Rule 5-901(b)(4), “‘the inquiry is context- specific,’” and the presence or absence of certain information is not necessarily dispositive. Id. at 599 , 228 A.3d at 195 (quoting Sublet, 442 Md. at 676-77 , 113 A.3d at 721 ) (brackets omitted).

We explained that the proponent of the evidence “‘need not rule out all possibilities that are inconsistent with authenticity, or prove beyond any doubt that the social media evidence is what it purports to be.’” Id. at 599, 228 A.3d at 195 (quoting Sublet, 442 Md. at 666 , 113 A.3d at 715 ) (brackets omitted).8 C. Authentication of Videos: Cole, Washington, Jackson, and Other Case Law We have previously addressed issues as to authentication of videos in three instances. See Cole, 342 Md. at 27 , 672 A.2d at 1123 ; Washington, 406 Md. at 646 , 961 8 In a civil case, Irwin Indus. Tool Co. v. Pifer, 478 Md. 645, 651, 674-75 , 276 A.3d 533 , 536, 550 (2022), we applied the “reasonable juror” test and concluded that establishing a chain of custody was not a requirement for authentication of the evidence at issue. We held that containers purchased on eBay were properly authenticated through circumstantial evidence under Maryland Rule 5-901(b)(4) because “a reasonable juror [could] find by a preponderance of the evidence that the powder within the containers was Strait-Line marking chalk.” Id. at 651, 678-79, 276 A.3d at 536, 552-53.

We addressed the possibility of tampering as follows: Insofar as negating the possibility of tampering is concerned, there is no hard and fast requirement that in a civil case where the issue of tampering is raised or where a substance may be susceptible to tampering, the proponent of the offered evidence is required to establish a chain of custody for the evidence to be admissible. Id. at 678, 276 A.3d at 552. - 18 - A.2d at 1112; Jackson, 460 Md. at 119 , 188 A.3d at 982 . In Cole, 342 Md. at 26-27 , 672 A.2d at 1122-23 , as a matter of first impression, we held that the “silent witness” theory of authentication can apply to videos and affirmed the admission of a video under that theory. In Cole, id. at 18 , 672 A.2d at 1118 , a correctional officer’s employment had been terminated because the officer deliberately injured an inmate while extracting him from a cell.

The incident was videotaped. See id. at 18 , 672 A.2d at 1118 . At a hearing before an administrative law judge (“the ALJ”), the warden testified that it was the regular practice of the prison for extractions of inmates from cells to be recorded by video. See id. at 18 , 672 A.2d at 1118 .

The warden explained that each such videotape was “routinely labelled with the date and time of the extraction and the names of the inmate and officers involved[,]” was “kept in an individual envelope[,] and [was] stored in a security vault at the institution[,] where they [could] be viewed only by signing in and out on a chain of custody form.” Id. at 27 , 672 A.2d at 1122 . Over objection, the ALJ admitted into evidence the videotape of the correctional officer injuring the inmate. See id. at 19 , 672 A.2d at 1118 . No witness with knowledge testified that the content of the video fairly and accurately depicted the events shown on it.

See id. at 17 , 672 A.2d at 1118 . We explained that the “pictorial testimony” theory of authentication, in which a witness with knowledge of the events depicted on the video provides testimony, is not the sole method of authenticating video evidence. See id. at 21 , 672 A.2d at 1119 . We held that, like a photograph, a video can be authenticated under the “silent witness” theory of authentication.

See id. at 26 , 672 A.2d at 1122 . We described the “silent witness” theory as an alternative way to authenticate video evidence under which a witness with personal - 19 - knowledge of the content of the video is not required. Id. at 21 , 672 A.2d at 1119 . We refrained from setting forth rigid prerequisites for the foundation necessary to authenticate under the “silent witness” theory, explaining that “[t]he facts and circumstances surrounding the making of the photographic evidence and its intended use at trial will vary greatly from case to case, and the trial judge must be given some discretion in determining what is an adequate foundation.” Id. at 26 , 672 A.2d at 1122 (citation omitted).

We concluded that the videotape at issue was sufficiently authenticated under the “silent witness” theory based on the warden’s testimony and that the ALJ properly admitted it into evidence. See id. at 27 , 672 A.2d at 1123 .9 In Washington, 406 Md. at 644-46 , 961 A.2d at 1111-12 , where the defendant was charged with shooting a person outside of a bar and an unknown technician (who had been hired by the owner of the bar) compiled a CD from multiple surveillance cameras and transferred information from the CD to a VHS tape which was given to the police, we held that the trial court erred in admitting the video and that the error was not harmless beyond a reasonable doubt. The Appellate Court had concluded that the trial court abused its discretion in admitting the videotape because the State failed to properly authenticate the tape but that the error was harmless. See id. at 648-49 , 961 A.2d at 1113-14 .10 In reviewing 9 We also concluded that authentication as a business record was an independent basis for authenticating the videotape because “there was enough evidence elicited at the administrative hearing to conclude that a record was made and kept in the course of the correctional institution’s regularly conducted business and that the videotape was made and kept as a valuable part of that record.” Cole, 342 Md. at 30 , 672 A.2d at 1124 . 10 We granted certiorari with respect to three questions, the third of which was: - 20 - the issue of harmless error, we discussed in detail how the “silent witness” and “pictorial testimony” methods of authentication may be used to authenticate photographs and videos.

See id. at 652-55, 961 A.2d at 1115-17 . Citing Cole, 342 Md. at 20 , 672 A.2d at 1119 , we explained that “[a] videotape is considered a photograph for admissibility purposes. It is admissible in evidence and is subject to the same general rules of admissibility as a photograph.” Washington, 406 Md. at 651 , 961 A.2d at 1115 . We stated that the Appellate Court had succinctly set out the rules for admission of photographs and quoted the following passage of the Appellate Court’s opinion: “Photographs may be admissible under one of two distinct rules.

Typically, photographs are admissible to illustrate testimony of a witness when that witness testifies from first-hand knowledge that the photograph fairly and accurately represents the scene or object it purports to depict as it existed at the relevant time. There is a second, alternative method of authenticating photographs that does not require first-hand knowledge. The ‘silent witness’ theory of admissibility authenticates ‘a photograph as a ‘mute’ or ‘silent’ independent photographic witness because the photograph speaks with its own probative effect.’” Id. at 652 , 961 A.2d at 1115 (quoting Washington v. State, 179 Md. App. 32, 44 , 943 A.2d 704, 711 (2008)). After quoting the Appellate Court, we observed that both the “pictorial Did the [Appellate Court of Maryland] err when it held that the introduction of an improperly authenticated surveillance videotape and photographs was harmless error, where the videotape and the photographs purportedly placed the petitioner at the scene of the crime, where they purportedly showed the petitioner committing the crime and where the prosecutor, in opening and closing arguments, repeatedly referred to, and relied on, those exhibits to argue that the petitioner was not guilty?

Because we reversed the judgment of the Appellate Court on this question, we did not address the first two questions, which did not involve authentication of the videotape and are not relevant to our discussion in this case. - 21 - testimony” theory and the “silent witness” method of authentication allow photographic evidence to be authenticated. Id. at 652, 961 A.2d at 1116 . We reiterated that, “to satisfy the evidentiary requirement for authentication, the proponent of the evidence must show that the evidence is ‘sufficient to support a finding that the matter in question is what its proponent claims.’” Id. at 651 , 961 A.2d at 1115 (quoting Md. R. 5-901(a)). Before addressing the issue of harmless error, we held “that the trial court erred in admitting the videotape and still photographs without first requiring an adequate foundation to support a finding that the matter in question [was] what the State claimed it to be” Id. at 655-56 , 961 A.2d at 1118 .

We did not issue a holding with respect to the applicability of either the “pictorial testimony” or “silent witness” method of authentication. In assessing whether the improper admission of the videotape constituted harmless error, we concluded that, without the videotape, the State’s identification of the petitioner as the shooter depended primarily on the testimony of “a witness who had declined on several occasions pretrial to identify petitioner as the shooter[,]” and that admission of “the videotape, relied upon so heavily by the State, under these circumstances, was not harmless beyond a reasonable doubt.” Id. at 658 , 961 A.2d at 1119 . In Jackson, 460 Md. at 119 , 188 A.3d at 982 , we held that a surveillance video “was properly authenticated” and “serve[d] as a silent witness of the continuous activity at [an] ATM” during the twenty-minute period that it showed. After an alleged home invasion robbery, over the course of several hours, the defendant purportedly used a debit card to make unauthorized withdrawals at an ATM at a branch of Bank of America.

See id. at - 22 - 111, 188 A.3d at 977 . The trial court admitted into evidence two CDs, each with a surveillance video of the ATM—one from a twenty-minute period on the night of the robbery, and one from a twenty-minute period in the early morning hours on the following date. See id. at 112 , 188 A.3d at 978 . The trial court also admitted into evidence two still images from surveillance videos.

See id. at 112 , 188 A.3d at 978 . Only the surveillance video from the twenty-minute period on the night of the robbery was at issue before us— i.e., in this Court, the defendant did not contend that the other surveillance video or the still images were not properly authenticated. See id. at 112 n.4, 114, 188 A.3d at 978 n.4, 979. The surveillance video at issue was recorded by four cameras, each showing the ATM from a different angle.

See id. at 118 , 188 A.3d at 982 . A protective services manager from Bank of America testified that he accessed a digital video recording (“DVR”) program and pulled up surveillance videos from the relevant dates, times, and cameras. Id. at 117 , 188 A.3d at 981 . The manager testified that the surveillance video at issue was among the ones that he watched when he accessed the DVR program.

See id. at 118-19 , 188 A.3d at 982 . The manager testified that, after accessing the DVR program and pulling up surveillance videos, he exported them to a digital file, which he emailed to a detective. See id. at 117 , 188 A.3d at 981 . The manager testified that he could not “modify, cut, paste, or enhance the video in any way[,]” and he “did not even have the ability to copy the file directly to another storage device, such as a thumb drive or DVD.” Id. at 117 , 188 A.3d at 981 (emphasis omitted).

Based on the manager’s detailed testimony, we affirmed the trial court’s admission of the surveillance video, as the video was properly authenticated. See id. at 119, 129 , 188 - 23 - A.3d at 982, 988. We noted that we had “previously explained that, for purposes of