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Many police departments are now equipping officers with body cameras that record video and audio of police encounters with citizens. The Montgomery County police routinely have body camera recordings that are made during investigations of incidents. Whether the audio recorded on body cameras is admissible in a subsequent criminal trial was explored in an unreported opinion last week from Maryland’s intermediate appellate Court in a case called Darnell Whitfield v. State of Maryland.
The opinion indicates that a woman and two thirteen-year-old friends were in a park, when they were approached by Whitfield who ended up striking one of the teens in the face. The police were called, and their interview with the victim was recorded on a police body camera. At trial, the victim and her two companions testified that Whitfield was drinking alcohol, engaged in unwanted conversation with them, and then struck the victim with a stick.
Over objection of the defense attorney, the trial judge allowed the State to play the audio from the body camera of the interview with the victim. During the recording, the victim in reply to a question as to whether she had been “sucker punched” said she had also been punched by the defendant. She also became audibly upset during the interview, and she had during her Court testimony. The Defendant did not testify, but his lawyer claimed that the striking of the victim was an accident during play fighting, and argued inconsistencies in the witness testimony. The jury deliberated all day before convicting Whitfield of assault and disorderly conduct.
The appellate Court reversed the conviction. It noted first that there is no rule that says body camera audio is automatically admissible. Recorded audio is subject to the rules of evidence on hearsay, where the statements are offered for the truth of the matter asserted. The Court rejected the argument that an exception to the rule excluding hearsay for “prior consistent statements” applied, since there was no showing that a motive to fabricate testimony arose here after the recording was made.
The Court went on to find that admitting this audio was not “harmless error,” as the jury made have found that the recording bolstered the credibility of the victim and made an accident less likely to have occurred. Its lengthy deliberation showed that this was a close case, which the State will have to decide whether to retry.
Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.