Judge excludes audio portion of babysitter video

(April 15, 2011) The audio portion of a videotape purportedly showing a Bishopville woman physically abusing the young girl she was babysitting cannot be used at her trial, though the video could be shown without the sound.

This was the decision of Judge W. Newton Jackson, a visiting judge from Wicomico County, after hearing arguments in Worcester County Circuit Court in Snow Hill from the lawyers in the case of 20-year-old Carleigh Renee Kufchak. During an April 6 hearing, he determined the video could be used, but it would have to be played silently. Her trial was scheduled for yesterday, April 14.

The Bishopville woman is accused of abusing an 8-year-old blind, autistic girl while babysitting her in Ocean Pines in June 2010. The girl has a history of seizures and her mother installed a video camera in the living room to record her daughter’s behavior while she was away at work because she was on a new seizure medication.

The mother said she “didn’t think it was necessary” to tell Kufchak about the camera because she put it there to watch her daughter, not the babysitter. Because Kufchak had watched the girl for two years, she had no concerns with her babysitting skills, that is until she saw the footage from the camera that allegedly showed Kufchak hitting her daughter and dragging her around by her legs.

Cullen Burke, Kufchak’s attorney, argued that the video was illegal because Kufchak was unaware she was being recorded. Recording Kufchak’s actions without her consent violates Maryland’s wiretapping laws, Burke said, because the law says an audio recording can only be made if all parties involved are aware they are being recorded and give their consent.

“Maryland requires the consent of all parties to the communication,” he said.

Burke asked that the entire video be excluded from the trial. Showing the video portion but without the sound would remove the context for any actions Kufchak might have made toward the girl, he said, since the judge or jury would not be able to hear her explain what she was doing or why she was doing it.

Assistant State’s Attorney Diane Cuilhe said the videotape was not illegal and the entire contents should be allowed as evidence during the trial. Audio recordings are only prohibited when the person being taped has a reasonable expectation of privacy in that location and Cuilhe said Kufchak had no reason to expect privacy while she was babysitting.

“The defendant didn’t have that. She was working in the home,” she said.

“It’s a very interesting issue,” Jackson said before making his ruling to exclude the audio but allow the video at the trial. He did say it would be up to the trial judge if certain pieces of the audio portion could be allowed if requested by the defense.