It has become common in many jurisdictions, including Montgomery County, for the police to wear body cameras that show their actions and record audio. The Maryland Rules of Evidence have been amended to allow, under prescribed circumstances, audio from police body cameras to be admitted in evidence against a criminal defendant. How those rules work were explored in a reported opinion last month from Maryland’s Court of Special Appeals in a case called Siamak Paydar v. State.

The Court’s opinion indicates that Paydar was charged with numerous crimes arising from an alleged assault on his wife. At trial, the wife testified that during an argument, her husband headbutted her and knocked her down. Then tied up her hands, feet, and mouth with electrical tape. Paydar then allegedly put her in the back of an SUV and told her he was going to get a gun and that this was her “last night.”

She managed to free herself and went to a neighboring home and called police, who arrested her husband. The wife then was interviewed by police who recorded her statements on the officer’s body camera.

At trial, defense counsel objected to the body camera audio being played for the jury, arguing that the statements in the video were hearsay (out of court statements offered for the truth of the matters asserted). The trial judge allowed the evidence in. The defense was to attack the wife’s testimony and assert alleged inconsistencies. The jury convicted the defendant of assault and false imprisonment, and he appealed.

The appellate court noted that the Maryland Rules of Evidence now allow the admissibility in evidence against a criminal defendant of police body camera recordings provided: 1) the recording is made contemporaneously, 2) it is properly authenticated by the police, 3) the recording is otherwise trustworthy, and 4) any hearsay statements are otherwise admissible under some other exception to rule excluding hearsay evidence. The last requirement is because a body camera recording, which is itself hearsay, which has audio recordings constitutes “hearsay within hearsay.”

Since the State failed to establish that the wife’s statements met some other exception to the rule making hearsay inadmissible, the Court held that that trial judge committed reversible error in admitting the body camera recordings. As the victim’s credibility was the key issue at trial, the error in admitting the recordings was held not to be harmless, and the appellate court overturned the convictions and ordered the case returned to the trial court for further proceedings.

Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.

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