A new wrinkle in video authentication in New York

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The New York Court of Appeals, in an opinion featuring the sharpest dissents in years, appears to have charted a new rule for video identification in our courts.

In Matter of M.S., the Court split 4-3 and held that a video, showing sexual abuse of a minor, was not properly authenticated and hence inadmissible in the Erie County Family Court.  The divergent opinions on the authentication question feature comments from the majority that the dissenters used “abundant colorful adjectives and adverbs” to predict unjustified “catastrophes” as a result of the holding.

One dissenter claimed the majority is “shortsighted.”  Two others accused the majority of a “ho-hum approach” that endangers children and added the decision is “troubling and its consequences will be grave.”

Because the video was not properly authenticated and was the sole evidence of abuse, the Court of Appeals dismissed the abuse petitions

Amid the strong words and back and forth, the ruling interjects an uncertainty into how the lower courts will evaluate the foundation for authentication of video evidence in an era when artificial intelligence and the emergence of “deep fake” technology may be tools for litigants on all sides of both civil and criminal matters.

The opinion also adds a sheen to the Court’s prior opinion, People v. Patterson, 93 NY 2d 80 (1999) which set forth ground rules of admitting video evidence.  In the wake of Matter of M.S., future proponents of such videos may need to lay a more extensive factual foundation or perhaps, in some cases, need expert testimony to admit such videos.

Trail lawyers and trial judges, who may have assumed that the powerful probative impact of video evidence almost assuredly required their admission as evidence, may find new challenges under the holding in Matter of M.S.

The facts of the video’s origin in Matter of M.S. were undisputed.  A hacker, seeking pornography, found a video, taken from an in-home camera, of an adult abusing a young woman.  He recorded the video on his computer in 2019.  The video was described as “snippets excerpted from a longer unrecovered feed” from the hacker’s computer.  The FBI, in a sting, seized the hacker’s computer and found the video years after it was recorded.

Eventually, the FBI traced the source of the video to a home in Erie County.  The young woman’s mother and her boyfriend lived in the home.  In conjunction with the FBI, the State Police further investigated and found that the individuals depicted in the video lived in the home, that the room pictured in the video matched that the room in the mother’s home and certain objects, found in the boyfriend’s room after a search, were identical to those pictured in the video.

To authenticate the video at trial, the proponent introduced the FBI agent who transferred the videos from the hacker’s computer two years earlier. The FBI agent testified that he had “experience performing digital forensic work” but he did not testify that he had training to identify alterations to the video.  He testified further that the video showed no signs of “being manipulated or altered.”  Based on all the circumstances, the Family Court admitted the video.

The Appellate Division, Fourth Department affirmed, concluding the petitioner established the foundation that the video was an accurate depiction of the subject activities and the judge acted within their discretion in admitting the evidence.

The presiding Judge in the Fourth Department, Hon. Gerald Whalen, dissented, concluding that the FBI agent’s testimony failed to establish how the video came into the possession of the hacker and could not testify to the accuracy or possible editing of the videos and thus, the video was improperly admitted.

In the Court of Appeals, the Chief Judge, writing for the majority, relied on the principles established in People v. Patterson, 93 NY2d 80 (1999) to authenticate video evidence.  The Court of Appeals in Patterson required as foundational evidence: testimony of a witness to the events or the operator of the video and testimony that the video recorded what was before the camera.  Here, Judge Wilson said, the owner-operator of the in-home system was the alleged perpetrator and neither he, nor the hacker who recorded the tape, testified.

Two other factors drove the majority conclusion. First, there was a two and half year gap between the time the video was stolen and the time it was recovered by the FBI, which Judge Wilson described as “a long gap in the chain of custody.”  The “bizarre circumstances surrounding the discovery of the videos and the long time period between their creation and their recovery raised doubts about their authenticity,” which the proponent simply failed to carry its burden to dispel, the majority held.

Second, the majority carefully evaluated the testimony of the FBI agent as a lay witness on the issue of reliability of the video.  He was never asked about any training in identifying signs of tampering, never testified about any forensic tools to detect tampering or whether he was able to offer a “learned affirmative opinion” that the video was not tempered with, a foundational requirement,  according to Chief Judger, dictated by the Court’s opinion in Patterson.

In Matter of M.S., the agent was simply asked: “Did you make any observation that the video footage had been tampered with or altered in any way?” He answered simply, “no’ without, according to Judge Wilson, any “elaboration.”  Judge Wilson acknowledged that the agent perhaps could have testified that he possessed the training and experience to further authenticate the video “but we will never know because he was never asked the important foundational questions.”

Judge Troutman, in dissent, argued that the majority was fixated on “deepfake videos” and video manipulation but, in doing so, “creates new and perhaps insurmountable hurdles for future authentication of video evidence.”  The result, she predicted, is that “children will be harmed and abusers will escape accountability.”

Judge Troutman added further facts to justify a conclusion that all the proven circumstances provided a sufficient authentication for the video.  The victim’s recorded interview gave evidence of mental distress that undercut her denials of abuse, a factor that could be considered by the court. The room and materials featured in the video matched those later found in the home.  The victim and the perpetrator were identified by the child’s mother from screenshots of the video.  Cameras found in the home were positioned exactly as needed to capture the abuse.  This “circumstantial evidence” was sufficient for the family court to conclude that a foundation existed for admission of the tape.

The delay between the recording the video and its production by the FBI did not impact the admission of the tape but only went to the weight to be accorded it, Judge Troutman concluded.  Judge Troutman predicted, based on the majority conclusion, that any party seeking to admit video evidence, will be required to find “an expert in identifying deepfake videos in the future” and she asked “Do such experts exist?”

Judge Singas’s dissent, joined by Justice Garcia, is equally pointed.  She focused most of her ire on the majority’s “superficial and simplistic analysis of ‘deepfake’ technology” and later added “the majority . . . is deeply out of touch” with the technology of videos and ignores the most powerful indicia of the video’s reliability: “the compelling circumstantial evidence of authenticity.”  After reviewing those details, Judge Singas concludes:

Given the majority’s conclusion, it is hard to imagine what circumstantial evidence could ever suffice to authenticate a video . . . If, as it appears, the majority is effectively holding that circumstantial evidence can never be enough, the majority is unaccountably sweeping aside well settled law recognizing circumstantial evidence as a valid method of authentication. 

She concluded with a barrage of questions, suggesting in the wake of the majority opinion “chaos will ensue,” arguing that any proponent of video may need “expert forensic testimony to admit it.”  She claimed that the broad repercussion of the majority opinion may be applied to “every other form of evidentiary exhibit.”  The majority opinion’s “ho-hum approach” to the vast array of perplexing future evidentiary questions is both “shortsighted” and “troubling,” she said.

In Matter of M.S., 12 judges considered the admissibility of the video.  Seven – the trial judge, three Appellate Division judges and three in the Court of Appeals — would have admitted it.  Five held otherwise but four of those five were in the Court of Appeals and thus the tape is not admitted and the petitions alleging abuse were dismissed.

These strong and divergent opinions from all levels of our courts should suggest to our trial courts and attorneys that Matter of M.S. will not be the final word on video authentication in the New York courts.

Hon. Richard A. Dollinger is a retired member of the New York Court of Claims and a former state senator from Rochester.