FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #023
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 9th day of May, 2025 are as follows:
BY Weimer, C.J.:
2024-C-00802 BRADLEY DAY AND TRACEY DAY VS. ELVIS DEAN THOMPSON, ET c/w AL. (Parish of Calcasieu) 2024-C-00806 AFFIRMED. SEE OPINION.
Crain, J., concurs and assigns reasons. Guidry, J., concurs. Knoll, J., concurs in part, dissents in part and assigns reasons. SUPREME COURT OF LOUISIANA
No. 2024-C-00802
C/W
No. 2024-C-00806
BRADLEY DAY AND TRACEY DAY
VS.
ELVIS DEAN THOMPSON, ET AL.
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF CALCASIEU
WEIMER, Chief Justice1
We granted certiorari in this case to consider whether the district court erred
in excluding surveillance evidence the defendants procured during trial for
impeachment purposes and whether, if erroneous, the exclusion of the evidence was
prejudicial. Finding an abuse of discretion in the district court’s failure to conduct
an in camera review of the surveillance evidence prior to ruling, our independent
review of the proffered evidence convinces this court that its exclusion was
nonetheless proper. The surveillance does not depict plaintiff doing anything she
testified she cannot do and, thus, is not impeachment material. Therefore, the
judgment below is affirmed.
FACTS AND PROCEDURAL HISTORY
This case arises from a motor vehicle accident on March 31, 2017. On that
date, Elvis Dean Thompson was operating an 18-wheeler on Interstate 210 in
Calcasieu Parish when he rear-ended a vehicle being driven by Tracey Day. Mrs.
1 Justice Jeannette Theriot Knoll, retired, heard this case as Justice Pro Tempore, sitting in the vacant seat for District 3 of the Louisiana Supreme Court. She is now appearing as Justice ad hoc for Justice Cade R. Cole. Day’s vehicle in turn struck a vehicle being driven by Teresa Jeffries. After striking
Mrs. Day’s vehicle, Mr. Thompson swerved and collided with another vehicle in an
adjacent lane of travel. That vehicle was being driven by Daniel Guidry. At the time
of the accident, Mr. Thompson was in the course and scope of his employment with
Terry Graham Trucking, Inc., the owner of the 18-wheeler Mr. Thompson was
driving.
Mrs. Day and her husband, Bradley Day, filed suit against Mr. Thompson,
Terry Graham Trucking, and its insurer, Prime Insurance Company, seeking recovery
for the damages Mrs. Day sustained in the accident. Mr. Day additionally asserted
a claim for loss of consortium.2 The Days’ suit was consolidated with a suit filed by
Ms. Jeffries, but was severed shortly before the Jeffries’ case went to trial.
Trial on the Days’ suit was set for September 20, 2021, but that date was upset
when counsel for Prime Insurance Company filed a motion for continuance based on
counsel’s displacement by Hurricane Ida, which made landfall on August 29, 2021.
The Days did not oppose the motion for continuance, but did request that no further
discovery be allowed. Trial was then reset for January 3, 2022. After the district
court issued a standard scheduling order for the reset trial date, the Days filed a
motion to amend the order to reflect the court’s ruling that there would be no further
discovery beyond what had already been scheduled as of the date of the continuance.
That motion was granted.
On the morning of January 3, 2022, the first day of the scheduled jury trial,
counsel for the Days requested that Mrs. Day be excused from attending trial, except
for the purpose of testifying, based on the recommendation of her psychiatrist and
2 Also named as plaintiffs in the lawsuit were the Days’ minor children, who were subsequently dismissed from the proceeding, along with the Days’ uninsured/underinsured motorist insurer, GEICO, which had been named as a defendant.
2 because “[i]t’s very difficult for her to sit for longer than about 30 minutes or so.”
Defense counsel objected, arguing the jury’s ability to observe Mrs. Day and her
capabilities insofar as her attention span and ability to sit through trial are concerned
is “an absolute integral part of the case, especially with [sic] it relates to her claims
for future losses and lost wages.” The district court granted the Days’ request and
excused Mrs. Day from attending the entire trial, reasoning that the jury would have
an opportunity to observe Mrs. Day when she testified.
The jury was selected on January 3, and the Days began presenting their case
on the following day. On January 6, following the testimony of both Mr. and Mrs.
Day, counsel for the Days informed the district court that he had just received a
supplement to discovery from counsel for Prime disclosing that defendants had
obtained surveillance video of Mrs. Day over the course of the preceding two days,
January 4 and 5. Prime’s counsel acknowledged obtaining the surveillance video,
explaining it was requested after Mrs. Day’s surprise representation on the first day
of trial that she could not physically sit through the entire trial, and argued that the
video, and the testimony of the private investigator who recorded the video, Jody
Clavier, were admissible as impeachment evidence. After hearing briefly from the
parties, the district court indicated it would review the relevant law overnight and
entertain argument the following morning and decide then whether to conduct an in
camera inspection of the video.
The following morning, the court heard argument. Counsel for Prime again
explained that the defendants were surprised by Mrs. Day’s claim that she could not
be in court for the entirety of the trial, and hired Mr. Clavier to determine if her
testimony was truthful. According to counsel, Mr. Clavier followed Mrs. Day and
observed her sitting in a BMW sedan for fifty minutes and walking her dogs for
3 longer than five minutes. Counsel indicated that defendants’ discovery responses had
been supplemented at 1:45 that morning with the video footage taken by Mr. Clavier,
and asked that the surveillance video and the testimony of Mr. Clavier be admitted
as impeachment evidence, citing Detellier v. Smith, 94-34 (La.App. 5 Cir. 5/31/94),
638 So.2d 445.
Counsel for the Days objected to the introduction of the evidence on several
grounds. Counsel pointed out that (1) discovery had been closed as of September 9,
2021; (2) the court had previously disallowed surveillance evidence obtained by
defendants after the discovery cut-off, but prior to commencement of trial; (3) there
was not sufficient time for plaintiffs to determine the veracity of the videotapes, or
whether they had been “tinkered with;” and (4) counsel would be unable to
rehabilitate the Days’ testimony since both Mr. and Mrs. Day had already testified.
After considering the parties’ arguments, the district court ruled that both the
surveillance video and the testimony of Mr. Clavier, the private investigator, would
be excluded from evidence. Trial then resumed with the presentation of the
defendants’ case, and concluded that same day.
At the conclusion of trial, the jury rendered a verdict in favor of the Days in the
total amount of $3,926,849.17. Forty percent of the fault for the accident was
allocated to Mr. Thompson, and 60 percent was allocated to Terry Graham Trucking.
A judgment was signed accordingly.3 Defendants appealed.
On appeal, the defendants asserted that the district court erred in excluding the
surveillance video obtained during trial and the testimony of private investigator
3 Pursuant to a Partial Motion for New Trial, language casting Prime Insurance, which had exhausted its $1,000,000.00 policy limits, was removed from the judgment except for casting Prime with interest on the first million dollars of the judgment from the date of judicial demand until March 3, 2022, when Prime’s policy limits were exhausted in connection with the suit filed by Ms. Jeffries.
4 Clavier, who filmed the video, arguing the evidence was admissible impeachment
evidence and its exclusion was prejudicial.4 Citing the reasons given by the district
court for excluding the evidence–the delay in the proceedings that would have
resulted, the agreement among the parties to close discovery when the trial was
postponed for Prime’s counsel, and the last-minute production of the evidence during
the middle of trial–along with the broad discretion afforded the district court in ruling
on the admissibility of evidence, the court of appeal found no error in the district
court’s exclusion of the evidence, and affirmed the judgment below. Day v.
Thompson, 23-301, pp. 10-11 (La.App. 3 Cir. 5/22/24), 388 So.3d 1217, 1225.
Upon application of defendants, this court granted certiorari to review the
correctness of the lower courts’ evidentiary ruling. Day v. Thompson, 24-00802 (La.
11/20/24), 396 So.3d 60 and 24-00806 (La. 11/20/24), 396 So.3d 61.5
LAW AND ANALYSIS
The narrow issue presented in this case is whether the district court erred in
excluding surveillance evidence the defendants procured during trial for impeachment
purposes. The evidence itself consists of two types: (1) surveillance video; and (2)
testimony from the private investigator who recorded the video, Jody Clavier,
regarding how he obtained the video and the behavior he personally observed in the
course of his surveillance. The district court excluded both. This court is called on
to determine whether that decision was an abuse of the district court’s great discretion
in determining the admissibility of evidence at trial. Medine v. Roniger, 03-3436,
p. 6 (La. 7/2/04), 879 So.2d 706, 711. (“Generally, a district court is afforded great
discretion concerning the admission of evidence at trial, and its decision to admit or
4 Defendants did not appeal the damage award. 5 The separate applications of the defendants have been consolidated for consideration by this court.
5 exclude evidence may not be reversed on appeal in the absence of an abuse of that
discretion.”)
Our inquiry begins with the relevant statutory provision. La. C.C. art. 1;
Duckworth v. Louisiana Farm Bureau Mut. Ins. Co., 11-2835, p. 12 (La. 11/2/12),
125 So.3d 1057, 1064. (“In Louisiana, as in other civil law jurisdictions, legislation
is superior to any other source of law.”). The admissibility of impeachment/rebuttal
evidence is controlled by La. C. E. art. 607(D)(2), which provides:
Other extrinsic evidence, including prior inconsistent statements and evidence contradicting the witness’ testimony, is admissible when offered solely to attack the credibility of a witness unless the court determines that the probative value of the evidence on the issue of credibility is substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice.
As this court has recognized, the “other extrinsic evidence” referenced in this
article includes within its ambit surveillance videotape, which can be used as
substantive, corroborative, or impeachment evidence at trial. Wolford v. JoEllen
Smith Psych. Hosp., 96-2460, p. 2 (La. 5/20/97), 693 So.2d 1164, 1166. Indeed, as
the Wolford court explained, the credibility of the plaintiff in a personal injury case
is key, and surveillance videotape can be a critical means of testing the plaintiff’s
credibility with respect to the physical injuries and limitations claimed. Id., 96-2460
at 5, 693 So.2d at 1167. Nevertheless, as the court also recognized, surveillance
video may not be totally reliable, may be taken out of context, and is vulnerable to
manipulation through various editing techniques. Id., 96-2460 at 6, 693 So.2d at
1168. For that reason, Wolford held that while a defendant may delay production of
a videotape until after the plaintiff’s deposition, the plaintiff is entitled to production
of any videotape a reasonable time before trial, so as to give the plaintiff ample time
to discover any weaknesses in the video. Id.
6 While Wolford specifically addressed the pre-trial discovery of surveillance
videotape, and this case involves surveillance videotape obtained during trial, we note
that with the advent of artificial intelligence6 and technological advancements in
cameras and editing, the risk of manipulation has greatly increased. Therefore, as
Wolford recognizes, and as reaffirmed today, it is important to the search for truth,
which is the fundamental purpose of any adversarial proceeding, that the plaintiff be
provided a meaningful opportunity to assess the authenticity of and any weaknesses
in any surveillance video. That being said, La. C.E. art. 607(D)(2) does not
distinguish surveillance video from any other type of extrinsic evidence which is
introduced to attack a witness’ credibility, and, with the above caveat, the same
standards of admissibility apply to surveillance video as to any other type of
impeachment evidence, whether procured pre-trial or during the course of trial.
In this case, the defendants sought to admit surveillance video obtained during
trial for the purpose of discrediting Mrs. Day’s contention, advanced for the first time
on the first day of trial, that the injuries she sustained in the accident prevented her
from attending the entire trial. Defendants also sought to introduce testimony of the
private investigator who recorded the video and his personal observations of Mrs.
Day over the course of his surveillance.
The district court ruled the evidence inadmissible, largely on the finding “that
it’d be nonsensical and inconsistent with my Pretrial Order to now let surveillance
in,” and because “it’d be unfair for the plaintiff not to have an opportunity to
investigate and, otherwise, check the veracity of the video.” However, the district
6 “Artificial intelligence” is defined as the capability of computer systems or algorithms to imitate intelligent human behavior. MERRIAM-WEBSTER.COM DICTIONARY, Artificial Intelligence, https://www.merriam-webster.com/dictionary/artificial%20intelligence (last visited April 15, 2025)
7 court issued this ruling without first conducting an in camera inspection of the video,7
and without the benefit of the proffer of Mr. Clavier’s testimony,8 apparently on the
belief such an inspection or review is not necessary or relevant “unless the law tells
me that I can let it in.”
The district court’s impression that an in camera inspection was not necessary
in this instance is mistaken. The plain language of La. C.E. art. 607(D)(2), which
addresses the admissibility of extrinsic evidence, declares that “[o]ther extrinsic
evidence ... is admissible when offered solely to attack the credibility of a witness
unless the court determines that the probative value of the evidence on the issue of
credibility is substantially outweighed by the risks of undue consumption of time,
confusion of the issues, or unfair prejudice.” (Emphasis added.) Pursuant to this
language, extrinsic evidence attacking the credibility of a witness is admissible, and
the law directs “that it can be let in” or admitted into evidence, subject to the
balancing test delineated in the article: the assessment as to whether the probative
value of the evidence is substantially outweighed by the risks of undue consumption
of time, confusion of the issues, or unfair prejudice. It is axiomatic that such a
balancing test cannot be performed in a vacuum. In other words, the probative value
of the evidence on the issue of credibility cannot be assessed without first examining
the evidence, which the district court declined to do in this case. See and compare,
7 While plaintiffs maintain that the district court did in fact review the video, the district court’s own words belie that contention. When defendants asked the court to conduct an in camera review prior to ruling, the plaintiffs objected, and the district court responded: “I don’t think the inspection is relevant unless the law tells me that I can let it in. If I can let it in, I would like to do an in-camera inspection so that I can decide beforehand how much I should show to the jury.” The next morning, without asking to see the video, the district court issued its ruling refusing to admit the evidence, noting that “it would just be unfair to ask the plaintiff now to prepare for even a dishonest client, “if that is what the video would show.” (Emphasis added.) These comments indicate the court did not review the video footage. 8 A proffer of Mr. Clavier’s testimony was made after the district court’s adverse ruling and after the jury had retired for deliberations.
8 Detillier, 638 So.2d at 448, wherein surveillance video made during trial “was
screened, out of the jury’s presence, by the trial judge, counsel, and defendants’
expert medical witness” prior to its being admitted into evidence.9
The district court compounded its error in refusing to conduct an in camera
review of the proffered videotape when it also ruled without the benefit of hearing
Mr. Clavier’s proffered testimony because, according to the district court, Mr. Clavier
was “basically a spoken, walking version of the video” and “was not on the
list–witness list.” However, to the extent Mr. Clavier was testifying regarding
behavior he personally observed, that testimony had relevance independent of the
videotape. See, Detillier, 638 So.2d at 449 (“Nor did the trial court err in permitting
the private investigator to testify regarding behavior that he himself observed but
which was not recorded on the videotape .... [He] was testifying as a fact witness, not
as an expert, and his testimony was admissible on that basis.”) Moreover, as a
rebuttal witness, Mr. Clavier’s identity was not required to be disclosed prior to trial.
See, Detiller, 638 So.2d at 448 (“[D]isclosure [of documentary impeachment
evidence or rebuttal witnesses] is not mandated either by the Code of Civil Procedure
or the Code of Evidence.”);Tracy v. Jefferson Par., Dep’t. of Pub. Works, 523
So.2d 266, 274 (La.App. 5th Cir. 1988) (“[R]ebuttal witnesses are not required to be
listed on the pre-trial order.”). This is particularly true where the defense could not
9 To the extent the district court’s ruling was based on the conclusion that the pre-trial order controlled the course of these proceedings and was not subject to modification, La. C.C.P. art. 1551(B) provides that a pre-trial order may be “modified at the trial to prevent manifest injustice.” In his reasons, the district court expressly acknowledged the special circumstances that prompted the defendants to conduct mid-trial surveillance, noting that “you didn’t see this coming,” and “you had no way of knowing that Mrs. Day was going to come in and request not to sit at the table.” The court even went so far as to comment that “I think it was wise of you. I think it was a worthwhile risk ...” suggesting that the defendants’ conduct in ordering surveillance after the discovery cut-off was justified, and that it presents the type of circumstance in which modification of the pre-trial order might be warranted. In any event, the determination of whether such modification should be effected in order to “prevent manifest injustice,” cannot properly be made without first examining the evidence itself to assess its probative value.
9 have reasonably anticipated the need for rebuttal, a circumstance the district court
conceded was the case here, when the court remarked: “I do think that you had no
way of knowing that Mrs. Day was going to come in and request not to sit at the
table.” See, Lewis v. Wal-Mart Stores, Inc., 525 So.2d 93, 96 (La. App. 3 Cir.
1988) (The requirement to list witnesses “does not apply to rebuttal witnesses the
necessity of whose testimony cannot be reasonably anticipated before the time of
trial.”).10 Therefore, to the extent that the district court refused to entertain a proffer
of Mr. Clavier’s testimony prior to ruling on its admissibility because his name was
not listed on the witness list, that refusal was erroneous.11
Based on the foregoing, this court finds that the district court abused its
discretion in excluding the surveillance evidence obtained by defendants without first
conducting an in camera review of that evidence. Because both the video evidence
and the testimony of Mr. Clavier were proffered, the court is able to conduct a de
novo review of the excluded evidence to determine its admissibility on the basis of
the balancing test set forth in La. C.E. art. 607(D)(2). See, Hicks v. USAA General
Indemnity Company, 21-00840, pp. 12-13 (La. 3/25/22), 339 So.3d 1106, 1115-
1116 (when legal error is found and the record is otherwise complete, the appellate
court should conduct its own de novo review of the evidence). Having reviewed the
evidence in its entirety, this court finds that had the district court conducted the
necessary in camera review, the result in this case would be the same. The evidence
10 This is not to suggest the defendants were not required, pursuant to plaintiffs’ discovery requests for surveillance video, to produce the videotapes to plaintiffs once they were obtained. Surveillance video is discoverable whether or not it is to be used at trial. Moak v. Illinois Cent. R. Co., 631 So.2d 401, 405 (La. 1994). However, the record reflects that defendants updated their discovery responses and notified plaintiffs of the existence of the surveillance video once it was obtained. 11 In any event, defendants did disclose their intent to call “any witness necessary for impeachment or rebuttal purposes” in witness lists submitted pursuant to the district court’s Pretrial Scheduling Order, demonstrating substantial compliance with that order.
10 was properly excluded because it does not contradict or discredit any testimony of the
plaintiffs and, thus, has no probative value with respect to plaintiffs’ credibility. In
short, it is not impeachment evidence.
While La. C.E. art. 607 governs the admissibility of extrinsic evidence for
impeachment purposes, before such evidence can be introduced, a proper foundation
must be laid. To that end, La. C.E. art. 613 provides:
Except as the interests of justice otherwise require, extrinsic evidence of bias, interest, or corruption, prior inconsistent statements, conviction of crime, or defects of capacity is admissible after the proponent has first fairly directed the witness’ attention to the statement, act, or matter alleged, and the witness has been given the opportunity to admit the fact and has failed distinctly to do so.
Pursuant to this article, before evidence that attacks a witness’ credibility can
be introduced, the witness must be presented with a fact and afforded the opportunity
to admit that fact. If the witness admits the fact, the evidence sought to be introduced
does not challenge the witness’ truthfulness and, thus, is not impeachment evidence
subject to the balancing test of La. C.E. art. 607.
In this case, the defendants claimed surprise when, on the first day of trial,
counsel for the Days requested that Mrs. Day be excused from attending trial, except
for the purpose of testifying, because she was unable to sit for longer than 30 minutes.
To controvert this assertion, defendants retained private investigator Jody Clavier to
conduct surveillance of Mrs. Day. Mr. Clavier surveilled Mrs. Day over the next two
days. That surveillance produced two videos: one recorded on January 4, lasting
approximately one minute and 54 seconds; and a second recorded the next day,
lasting 18 minutes and 19 seconds. In his proffer, Mr. Clavier described what he
observed while intermittently filming. According to Mr. Clavier, on the first day of
surveillance, Mrs. Day exited the hotel where the Days were staying with two dogs
11 on leashes. She walked down a slight incline on the back side of the hotel and over
concrete curbing with no issues. A couple of times, she dropped the dogs’ leashes
and bent fully from the waist to pick them up. Later, he observed Mrs. Day enter her
husband’s small BMW sedan, unassisted. Mr. Clavier followed the couple to Kohl’s
department store, where Mrs. Day remained in the vehicle while her husband went
into the store, returning after about 15 minutes. The Days then drove back to the
hotel. Mr. Clavier estimated that Mrs. Day sat in the car continuously, without
getting out or standing up, for approximately 35 to 40 minutes. The time stamps on
the corresponding video indicate that the trip to Kohls lasted approximately 50
minutes.
Mr. Clavier then testified that on the following day, he observed Mrs. Day
walking her dogs on three occasions. He noted that at one point, Mrs. Day walked
the dogs with a phone resting on her shoulder, holding it to her ear while she talked.
Mr. Clavier indicated that the longest period of time Mrs. Day walked her dogs was
“probably over an hour.” The corresponding video for that day shows Mrs. Day
walking her dogs for less than two minutes, for ten minutes, and finally for
approximately 36 minutes.
Defendants contend that the foregoing surveillance is impeachment evidence
because it contradicts Mrs. Day’s claim that she was unable to sit for longer than 30
minutes and therefore unable to attend the entire trial, that she walks with a limp, and
that she cannot walk her dogs for longer than five minutes. The problem with this
contention is that Mrs. Day did not testify that she was unable to sit in a car for
extended periods, that she walks with a limp, or that she could not walk her dogs for
longer than five minutes, nor was she asked whether she could do so.
12 During his cross-examination, defense counsel attempted to lay a foundation
for impeachment by asking Mrs. Day how she arrived in Louisiana (she and her
husband drove from Oklahoma in Mr. Day’s BMW); whether she “mostly” stayed in
the hotel (she mostly stayed in the hotel, had not gone out to a restaurant, on
shopping trips or to the movies, for the most part carrying food in); whether she had
been tending to the dogs, carrying them, picking up after them (she takes the dogs
outside, does not pick them up and has not cleaned up after them because the hotel
does not have waste bags); whether she can move her neck from side to side (she
can); what’s the heaviest thing she can carry (she has a weight restriction of 20
pounds); how much her dogs weigh (about 7 pounds and 12-13 pounds, respectively);
and, finally, when she has walked her dogs at the hotel, “how long do you usually
take them out for” (about five minutes). Nothing in Mrs. Day’s responses to these
questions is contradicted by or inconsistent with the surveillance evidence.
In fact, Mrs. Day testified on direct examination that she rode seven hours in
her husband’s car to attend trial, but that it caused her a lot of pain. Mr. Day
confirmed that his wife could ride in a car for extended periods of time, but also
testified that it caused her pain to do so. He further testified that Mrs. Day can feed
their dogs and pick up after them.
Clearly, then, Mrs. Day did not testify that she was unable to sit for longer than
30 minutes or that she was unable to sit in a car for extended periods, as defendants
maintain, and defense counsel did not pose that precise question to her. There is
nothing in Mr. Clavier’s testimony or the surveillance video (showing Mrs. Day
sitting for 50 minutes in the same car she testified she sat in for seven hours to attend
trial) that contradicts, undermines, or discredit’s Mrs. Day’s testimony.
13 The same is true as respects the contention that Mrs. Day claimed she was
unable to walk her dogs for longer than five minutes. Mrs. Day did not testify that
she was unable to walk her dogs for longer than five minutes and defense counsel did
not ask her whether she could walk her dogs for longer than five minutes, or whether,
in fact, she had done so. Rather, counsel asked Mrs. Day how long she “usually”
walked her dogs, and she responded: “About five minutes. We walk from the hotel
to the grassy area for them to go to the bathroom and then we go back up to the
room.” The surveillance evidence does not contradict or discredit Mrs. Day’s
testimony in this regard.
Finally, although Mr. Day did testify on direct examination that his wife’s gait
is different from how it appeared before her accident, and that she walks with “a
pronounced limp, if you will, I guess,” he was not asked to and did not describe what
that limp looks like. Mrs. Day was not questioned about her gait at all. In particular,
she was not asked whether she can walk without a limp, a question that would have
laid a foundation for impeachment. In the absence of that foundation, there is no
basis to challenge Mrs. Day’s credibility with extrinsic evidence.
After conducting a de novo review of the surveillance evidence, this court finds
that, in the final analysis, the proffered evidence does not contradict or discredit Mrs.
Day’s testimony. Neither the surveillance video nor the testimony of Mr. Clavier
depict Mrs. Day doing anything she testified she cannot do and, thus, the evidence is
not impeachment evidence, and a proper foundation was not laid for its introduction.
CONCLUSION
The admissibility of extrinsic evidence to attack the credibility of a witness,
particularly as regards surveillance videotape which, as noted, is vulnerable to
manipulation, must be determined on a case-by-case basis, in accordance with the
14 unique facts and circumstances of each case and the balancing of factors set forth in
La. C.E. art. 607 (D)(2). That balancing can only occur after an in camera review of
the evidence. In this instance, the district court erred in failing to conduct that
review, but the exclusion of the surveillance evidence was nonetheless proper, as the
evidence does not contradict or discredit the witness’ testimony and, thus, is not
impeachment evidence. The surveillance evidence was properly excluded; therefore,
the judgment below is affirmed.
AFFIRMED.
15 SUPREME COURT OF LOUISIANA
On Writ of Certiorari to the Court of Appeal, Third Circuit, Parish of Calcasieu
CRAIN, J., concurring.
I agree the trial court erred in failing to review the surveillance video before
ruling it inadmissible. Under the circumstances, I also find the trial court erred in
excluding the testimony of the investigator who took the surveillance. He should
have been allowed as a fact witness who specifically viewed plaintiffs’ activities
after the defense learned plaintiff would not be present during the trial. The excluded
evidence was proffered; therefore, de novo review is proper. Ultimately, since the
evidence fails to rebut anything said by plaintiff, the trial court’s errors were
harmless. I write separately to emphasize the error in the trial court’s rulings.
The surveillance was justified. The video was not excluded by the pre-trial
order because the surveillance was not relevant until plaintiff made known at the
beginning of trial that she would present new evidence of her condition through her
absence from trial for physical reasons. The defense then provided appropriate
notice before offering the video as impeachment evidence. Trial courts must be
vigilant in keeping the adversarial playing field level. The trial court’s rulings in this
case failed to do that. Since de novo review reveals the trial court’s errors were
ultimately harmless, I concur. SUPREME COURT OF LOUISIANA
On Writ of Certiorari to the Court of Appeal, Third Circuit, Parish of Calcasieu
KNOLL, J.,1 concurs in part, dissents in part, and assigns the following reasons:
I concur with the majority opinion in finding the surveillance video is not
impeachment evidence. For several reasons, however, I find the majority opinion
clearly errs in determining the District Court abused its vast and immense discretion.
Moreover, the majority opinion further errs by making an assumption outside the
record 2 to reach its abuse of discretion determination, which ultimately renders the
opinion internally inconsistent and confusing.
Plaintiff, Tracey Day, was seriously injured on March 31, 2017, when
defendant Elvis Thompson rear-ended her vehicle with the 18-wheeler truck he was
driving on Interstate 210 in Calcasieu Parish near Lake Charles, Louisiana. Because
of the severity of her injuries, Mrs. Day’s cervical spine and right hip were fused
with steel rods, causing her pain, discomfort, and disabilities. Notably, the
defendants’ expert, Dr. Kelly Scrantz, testified Mrs. Day appeared to be
straightforward with him about her injuries both when he examined her prior to trial
1 Justice Jeannette Theriot Knoll, retired, heard this case as Justice Pro Tempore, sitting in the vacant seat for District 3 of the Louisiana Supreme Court. She is now appearing as Justice ad hoc for Justice Cade R. Cole. 2 See Day v. Thompson, 24-00802 c/w 24-00806, p.8 n.7 (La. --/--/--), --- So. 3d ----.
1 and in the courtroom; further, Dr. Scrantz did not, at any point, testify Mrs. Day was
exaggerating her injuries. The jury’s quantum award of $3,926,849.17 was not
contested on appeal. The defendants’ surveillance of Mrs. Day was an effort to
discredit her, notwithstanding the strong medical evidence supporting her
complaints.
In reviewing this case, the Third Circuit Court of Appeal properly examined
the record for abuse of discretion by the trial Judge. Whether there was an abuse of
discretion was the sole issue before that Court, and now, it is the sole issue before
this Court. Relying heavily on both the trial Judge’s oral reasons and landmark
jurisprudence concerning video surveillance evidence, the Third Circuit affirmed the
District Court’s judgment, finding no abuse of the District Court’s discretion.
As correctly noted by the majority, the admissibility of impeachment/rebuttal
evidence is set forth in La. C.E. art. 607(D)(2). As such, the trial judge acts as the
“gatekeeper” of admissibility of evidence during trial. The trial judge is afforded
vast discretion in conducting trial proceedings and ruling on evidentiary issues. La.
C.C.P. art. 1631(A); see also Tassin v. State Farm Mutual Automobile Ins. Co., 20-
00652, p. 2 (La. 10/14/20), 302 So. 3d 1098, 1099.
Here, the trial Judge, in his gatekeeping function, provided sound and
thorough reasons for excluding the video surveillance footage and testimony of Mr.
Clavier, stating:
[I]t’s axiomatic for me to say – to, at this point, to do anything other than exclude this evidence. And here’s why […] [i]t’s been five years, four and a half years. In four and a half years you couldn’t go and get some video prior to the close of discovery of her going to Ross or getting in a sedan or riding a bike or riding a horse. […] [Plaintiffs] would have to basically have time to challenge the veracity of the video and see whether certain parts would be excluded. There’s a lot that would have to be done that would delay this case and that would be unduly fair, unduly fair. I mean, it’s just – it would just be unfair to ask the plaintiff now to prepare for even a dishonest client, if that is what the video would show. Because four years ago you could have decided that she was being dishonest. […] It’s just not going to work at this point. I find
2 that it’d be nonsensical and inconsistent with my Pretrial Order to now let surveillance in. And I said surveillance couldn’t come in on December 15th and when we had our last hearing. […] [W]e’re not going to expand upon what everybody has been preparing for for all these years. So, for that reason, it’d be unduly fair, it’d be unfair to the plaintiff not to have an opportunity to investigate and, otherwise, check the veracity of the video. I think in the interest of fundamental fairness, I must exclude not only the video, but the testimony of Mr. Jody Clavia.
Clearly, the trial Judge’s reasons do not support a finding of abuse of his wide,
vast, and great discretion as the gatekeeper of the trial over which he was presiding;
this reasoning is consistent with our statutory law and jurisprudence. The majority
opinion, however, cherry-picks from the trial Judge’s thorough and sound reasons
for excluding the video surveillance footage at trial. 3 It makes the assumption that
the trial Judge did not conduct an in camera review of the surveillance footage,4 and
further errs by relying on a misapplication of Detillier v. Smith, 94-34 (La. App. 5
Cir. 5/31/94), 638 So. 2d 445.
Footnote 7 of the majority opinion states:
While plaintiffs maintain that the district court did in fact review the video, the district court’s own words belie that contention. When defendants asked the court to conduct an in camera review prior to ruling, the plaintiffs objected, and the district court responded: “I don’t think the inspection is relevant unless the law tells me that I can let it in. If I can let it in, I would like to do an in-camera inspection so that I can decide beforehand how much I should show to the jury.” The next morning, without asking to see the video, the district court issued its ruling refusing to admit the evidence, noting that “it would just be unfair to ask the plaintiff now to prepare for even a dishonest client, “if that is what the video would show.” (Emphasis added.) These comments indicate the court did not review the video footage. 5 (Emphasis added.)
The record does not establish whether or not the trial Judge had and/or
reviewed the video surveillance footage. The plaintiffs assert he did conduct an in
camera review of the video surveillance footage; the defendants maintain he did not.
3 Id. at p.9, n.9. 4 Id. at p.8, n.7. 5 Id. 3 No one asked the trial Judge if he conducted an in camera review of the surveillance
footage prior to giving his reasons for excluding it at trial. The majority opinion
states, in pertinent part: “These comments indicate the court did not review the video
footage.” Again, here, the majority draws an assumption not based on record
evidence. This is a clear breach of our duty to “shall render any judgment which is
just, legal, and proper upon the record on appeal.” La. C.C.P. art. 2164; see also
Barnett v. Barnett, 477 So. 2d 1289, 1291 (La. App. 3 Cir. 1985). As a reviewing
court, we are called to examine record evidence alone. There are no exceptions to
this rule or practice. It is critical to our function to review only the evidence in the
record.
The majority opinion further errs by misapplying Detillier v. Smith, 94-34 (La.
App. 5 Cir. 5/31/94), 638 So. 2d 445. In Detillier, the court of appeal affirmed the
admission of surveillance footage obtained during trial because, importantly, there
was no pretrial order requiring the disclosure of documentary impeachment evidence
or rebuttal witnesses, nor did the plaintiff submit in discovery interrogatories or
requests for production of documents regarding video footage of the plaintiff. Id.,
94-34, 638 So. 2d at 448. By contrast, here, plaintiffs propounded interrogatories
and requests for production to defendants in discovery specifically pertaining to
video surveillance.
In this matter, the District Court excluded the surveillance taken during trial
in the interest of fundamental fairness; namely, because its admission “would be
unfair” and would deny the plaintiff the “opportunity to investigate and, otherwise,
check the veracity of the video.” The District Court’s reasoning for the exclusion
was thorough; it cited the defendants’ ample time––four-and-a-half years––to hire a
private investigator and obtain such surveillance footage prior to the close of
discovery. It also noted its previous exclusion of other surveillance evidence a week
before the original trial date setting in 2021.
4 In 2021, defendants similarly sought to introduce video surveillance, and the
District Court ruled on the admissibility of that surveillance footage at a hearing a
week before trial. There, the District Court viewed and excluded the footage
primarily because the plaintiff did not have an opportunity to investigate it and
challenge its veracity; secondarily, the court considered the poor quality of the video.
Given the District Court’s previous exclusion of video surveillance footage one
week prior to the first trial date setting on grounds of unfairness to the plaintiff, it
would be inconsistent for the judge to later admit such footage obtained and
presented during trial.
The majority opinion correctly finds the admissibility of video surveillance
evidence to be vulnerable to manipulation. This concept is well-documented by
Justice Walter Marcus in the landmark decision Wolford v. JoEllen Smith Psych.
Hosp., 96-2460 (La. 5/20/97), 693 So. 2d 1164, which has provided guidance to our
lower courts for nearly thirty years on this issue. Since the Wolford case was decided,
the dangers posed by surveillance video evidence have been exponentially magnified
with the advancements of artificial intelligence and deepfake technology. Here, the
majority opinion notes:
[W]ith the advent of artificial intelligence and technological advancements in cameras and editing, the risk of manipulation has greatly increased. Therefore, as Wolford recognizes, and as reaffirmed today, it is important to the search for truth, which is the fundamental purpose of any adversarial proceeding, that the plaintiff be provided a meaningful opportunity to assess the authenticity of and any weaknesses in any surveillance video.6
In my view, this acknowledgment of the important right of a plaintiff to be
afforded the opportunity to examine surveillance should have been the focus of the
opinion rather than the in camera review of the video surveillance footage by the
trial Judge, which is a “red herring” issue.
6 See Day v. Thompson, 24-00802 c/w 24-00806, p. 7 (La. --/--/--), --- So. 3d ----. 5 In my view, the majority strays from the guidance provided by Wolford in
stating:
That being said, La. C.E. art. 607(D)(2) does not distinguish surveillance video from any other type of extrinsic evidence which is introduced to attack a witness’ credibility, and, with the above caveat, the same standards of admissibility apply to surveillance video as to any other type of impeachment evidence, whether procured pre-trial or during the course of trial. 7
This statement is not correct and is largely misleading. Louisiana Code of
Evidence article 607(D)(2), found in Chapter 6 of the Code of Evidence under the
title “Witnesses,” simply signifies that other extrinsic evidence is admissible to
attack the credibility of a witness. This Article does not address the authentication
of extrinsic evidence. Within Chapter 9 of the Code of Evidence, titled
“Authentication and Identification,” Article 901(A) provides:
A. General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
Extrinsic evidence must be authenticated in order to show the evidence at issue “is
what its proponent claims.” In my view, the majority’s interpretation of this article
implies the authentication of extrinsic evidence is not required, as it reasoned that
Art. 607(D)(2) “[…] does not distinguish surveillance video from any other type of
extrinsic evidence […].” This “caveat” is not correct and belies our jurisprudence.
A review of our jurisprudence, starting in 1994 with Detillier (before Wolford
in 1997), demonstrates video surveillance evidence is treated differently than other
extrinsic evidence. Further, this statement is inconsistent––the majority reaffirms
Wolford, which advocates for the authentication of video surveillance evidence.
Moreover, the majority is further inconsistent insofar as it finds that, “[…] the
plaintiff be provided a meaningful opportunity to assess the authenticity of and any
7 Id. 6 weakness in any surveillance video,” yet also finding the trial Judge to have erred in
failing to review in camera the defendants’ unauthenticated video surveillance
footage. This inconsistency is further compounded by the majority’s de novo review
of this unauthenticated surveillance video.8
The defendants are not without a remedy if they believe a plaintiff is or will
be untruthful at trial. For example, if the defendants strongly maintained that the
video impeached the plaintiff, the defendants could have moved for a continuance
to allow the plaintiffs a reasonable time to examine and determine the veracity of the
video. This would more properly and efficiently balance the needs of the defendants
and the plaintiffs in their search for the truth.
Overall, rather than giving the lower courts guidance, the majority opinion
creates confusion and impedes the gatekeeping function of the trial court. For these
reasons, with all due respect to my colleagues, I dissent in part and, concur in part,
and I would recall the writ as improvidently granted.
8 See Day v. Thompson, 24-00802 c/w 24-00806, p.10 (La. --/--/--), --- So. 3d ----. 7