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Department of Public Safety and Correctional Services v. Gregory Cole - No. 59, 1995 Term EVIDENCE -- Videotape admissible in administrative hearing either under "silent witness" theory of admissibility or as a business record when testimony showed that it was made and kept in the ordinary course of business even though no witness testified that what was depicted on the tape was a fair and accurate representation.

IN THE COURT OF APPEALS OF MARYLAND No. 59 September Term, 1995 ___________________________________

DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES v. GREGORY COLE

___________________________________

Murphy, C.J. Eldridge Rodowsky Chasanow Karwacki Bell Raker JJ. ___________________________________ Opinion by Chasanow, J. Bell, J., dissents ___________________________________

Filed:

March 12, 1996

We are called upon in the instant case to determine whether a videotape may be admissible in evidence in an administrative hearing even though no witness testifies that what is depicted on the videotape is a fair and accurate representation of what it purports to show. For the following reasons, we answer in the

affirmative and hold that the videotape was properly admitted into evidence. We therefore reverse the Court of Special Appeals and

affirm the decision of the administrative law judge admitting the videotape into evidence and terminating Respondent's employment based on Respondent's conduct depicted in the videotape.

I. This appeal arises out of an administrative proceeding

initiated by Petitioner, the Department of Public Safety and Correctional Services (Department), for the removal of Respondent, Gregory Cole, from his employment as a Correctional Officer

Lieutenant at the Roxbury Correctional Institution in Hagerstown. Cole was part of an "extraction team" assembled to remove a disruptive inmate from his prison cell and move him to another area. This process was videotaped in accordance with routine According to the

procedures of the correctional institution.

findings of the administrative law judge (ALJ) who presided over the hearing, the videotape showed that gas was initially used by the extraction team to subdue the inmate in his cell. The ALJ

found that after the inmate was incapacitated and lying on the

-2floor, Cole opened the cell door and kicked the inmate in the head, shoulder and rib area, stepped on the inmate, lifted the inmate's legs four or five feet from the floor by his leg irons and dropped him several times. The inmate was then removed from the cell.

Cole's actions were brought to the attention of the warden several months later when the videotape was viewed by staff members of the prison reviewing extraction tapes to be used for training purposes. Charges for Cole's removal were then filed. At the hearing held before the ALJ at the Maryland

Correctional Training Center in Hagerstown, the Department offered the testimony of Warden John P. Galley. Galley testified that it

is the regular practice of the institution to videotape cell extractions.1 Once made, Galley explained, the tapes are marked

with the date and time of the extraction, the names of the inmate and the extraction team members, and are maintained in a vault in the security office. Galley was asked if he knew whether there was

When asked "[w]hat is the normal procedure to be followed in a cell extraction," Galley testified: "Officers are trained to extract the inmate from the cell. When a[n] extraction occurs, a team of officers is to go in. The team usually consists of one officer using a shield for purposes of taming an inmate. And four officers behind that person following the shield man into the cell for purposes of one officer to be assigned to grab each extremity of the body, two arms, two legs. A sixth officer is behind that group using a video camera. A seventh officer is in command of the entire unit and situation as it occurs."

1

-3a cell extraction in which Cole was involved on the date in question and whether he knew if it was videotaped. After answering

affirmatively to both questions, Galley identified the videotape and stated that he had personally reviewed it. Galley acknowledged

that he was not present at the extraction itself and viewed the tape only after it was brought to his attention several months later. The Department sought to introduce, through Galley, the

videotape along with the envelope that contained the tape and a document stapled to the envelope showing the chain of custody of the videotape. The ALJ Cole timely objected to admission of the videotape. the objection and admitted the videotape, While

overruled

envelope and attached chain of custody form into evidence.

the tape was played before the ALJ, Galley identified Cole as the officer in the video entering the cell and kicking the inmate. Cole testified and admitted that he was shown on the videotape, but denied using excessive force against the inmate. After viewing the

tape, the ALJ found that Cole committed a third category infraction by use of unnecessary force upon the inmate and terminated Cole's employment in accordance with the Department's mandatory sanction for that type of violation. Cole filed exceptions to the ALJ's decision with the Secretary of Personnel. After a hearing, a designee of the Secretary issued

an order adopting the proposed findings of fact and conclusions of law of the ALJ and sustained Cole's removal from state service.

-4-

Cole then appealed to the Circuit Court for Washington County, arguing that the videotape was improperly admitted into evidence "[s]ince there was nobody there to authenticate the tape and nobody there to say, in fact, if the tape reflected what had happened was accurate." the The circuit court judge, agreeing with Cole, reversed of the ALJ and the Secretary of Personnel and The

decision

reinstated Cole to his position of Correctional Lieutenant. judge

held that the videotape was not properly authenticated

because it was "admitted in evidence without any foundation being laid whatsoever." The Department filed a timely notice of appeal to the Court of Special Appeals. circuit court The intermediate court held, inter alia, that the was correct in ruling that the videotape was

inadmissible for lack of authentication and affirmed that part of the circuit court's decision. Dept. of Public Safety v. Cole, 103 We granted certiorari to

Md. App. 126, 652 A.2d 1159 (1995).

consider whether the videotape was properly authenticated and thus admissible.

II. Cole contends that the videotape was not properly

authenticated because the Department did not produce a witness who was present at the extraction to testify to the videotape's

-5accuracy. Cole argues that a videotape, much like a photograph,

must be authenticated by a witness with first-hand knowledge who can testify that what is depicted is a correct and accurate representation of what it purports to show. Although we agree that

this is one method of authenticating a videotape, it is not the sole method. Videotapes are generally admissible in evidence on the same basis as motion picture films and subject to the same general rules applicable to photographic evidence. Tobias v. State, 37 Md. App.

605, 615, 378 A.2d 698, 704 (1977); 3 CHARLES C. SCOTT, PHOTOGRAPHIC EVIDENCE

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