In Camera Review Requirement for Surveillance Videotape Impeachment Evidence under La. C.E. art. 607(D)(2)

Introduction

This commentary examines the Louisiana Supreme Court’s decision in Bradley Day and Tracey Day v. Elvis Dean Thompson, C/W 2024-C-00802 & 00806 (La. 5/9/25). The dispute arose from a 2017 highway collision between an 18-wheeler driven by Elvis Thompson and a passenger car operated by Tracey Day. Tracey and her husband, Bradley Day, sued Thompson, his employer Terry Graham Trucking, Inc., and the insurer Prime Insurance Company for Mrs. Day’s injuries and Mr. Day’s loss of consortium. After discovery closed and the trial was reset due to Hurricane Ida, defendants obtained mid-trial surveillance of Mrs. Day and sought to introduce it to impeach her claim that she could not sit through a full jury trial. The trial judge excluded the video and the private investigator’s testimony without first conducting an in camera review. The court of appeal affirmed. On certiorari, the Louisiana Supreme Court addressed two questions:

Did the trial court abuse its discretion by excluding surveillance evidence procured during trial without first reviewing it in camera?
If so, was the exclusion prejudicial?

Summary of the Judgment

Chief Justice Weimer, writing for a majority of the court, first held that La. C.E. art. 607(D)(2) admits extrinsic impeachment evidence—surveillance videotape included—unless its probative value on credibility is substantially outweighed by risks of undue time consumption, confusion, or unfair prejudice. The Court ruled that, procedurally, the trial court should have conducted an in camera inspection of the proffered video and the investigator’s testimony to apply the statutory balancing test. On de novo review, however, the Supreme Court found that the footage and testimony did not contradict any testimony given by Mrs. Day—she never testified she could not ride in a car longer than 30 minutes or that she could not walk her dogs—and therefore lacked probative value as impeachment. The exclusion was proper on substantive grounds, and the judgment awarding the Days $3,926,849.17 was affirmed.

Analysis

1. Precedents Cited

Wolford v. JoEllen Smith Psych. Hosp. (La. 1997): Recognized that surveillance videotape can serve as impeachment but warned of manipulation risks. Established that plaintiffs must receive videotapes pretrial in time to test authenticity.
Detillier v. Smith (La. App. 5 Cir. 1994): Upheld mid-trial admission of video and investigator testimony after in camera review, where no discovery cutoff or scheduling order conflict existed.
Medine v. Roniger (La. 2004): Reinforced the trial court’s broad discretion over evidentiary rulings and the high threshold for abuse of that discretion on appeal.

2. Legal Reasoning

The Court’s reasoning proceeded in three steps:

Statutory Framework: La. C.E. art. 607(D)(2) permits “other extrinsic evidence”—including surveillance videos—to impeach a witness’s credibility unless outweighed by time, confusion, or prejudice concerns.
In Camera Review Requirement: A judge cannot apply the necessary balancing test without first inspecting the proffered surveillance evidence and hearing a proffer of the investigator’s testimony. Refusal to conduct any in camera review constituted an abuse of discretion.
De Novo Review & Substantive Exclusion: On independent review of footage and testimony, the Court found no inconsistency between Mrs. Day’s testimony and what the video showed. Because the videotape did not contradict any factual assertion she made (e.g., her ability to sit in a car, her walking limitations), it lacked impeachment value under art. 607(D)(2) and could be excluded on substantive grounds.

3. Impact

This decision clarifies two key points in Louisiana evidence law:

Procedural Prerequisite: Trial courts must conduct an in camera review of surveillance videotape (and associated investigator testimony) before ruling on admissibility under La. C.E. art. 607(D)(2). A bare ruling without inspection is an abuse of discretion.
Substantive Standard: Even after proper inspection, surveillance footage is only admissible if it actually contradicts or disproves a specific testimonial assertion by the witness. Mere opportunity to observe a witness performing basic acts (sitting, walking) does not automatically qualify as impeachment material.

Future litigants must track closely whether surveillance evidence truly undermines claimed limitations and must prepare to demonstrate both procedural compliance (in camera review) and substantive contradiction before seeking admission.

Complex Concepts Simplified

In Camera Review: A private, judicial inspection of evidence (e.g., video) outside the presence of the jury, so the judge can evaluate its authenticity and relevance before deciding if it may be shown to the jury.
Extrinsic Evidence: Evidence that comes from sources other than the witness’s direct testimony—such as prior inconsistent statements, documents, or surveillance videos—used to challenge credibility.
Probative Value vs. Prejudice Balancing (La. C.E. art. 607(D)(2)): The test that asks whether the evidence’s usefulness to expose a witness’s untruthfulness outweighs risks of wasting time, confusing the jury, or unfairly prejudicing the witness.
De Novo Review: An appellate standard where the higher court makes its own independent evaluation of evidence or legal questions, rather than deferring to the trial court’s judgment.

Conclusion

The Louisiana Supreme Court’s decision in Day v. Thompson reaffirms the judiciary’s dual obligations to ensure evidentiary fairness and to guard against irrelevant or prejudicial material. Trial courts must conduct in camera reviews of surveillance videotape offered for impeachment under La. C.E. art. 607(D)(2) and, even after review, admit only footage that directly contradicts a witness’s testimony. This ruling strengthens procedural safeguards around surveillance evidence and clarifies that its mere existence does not guarantee admissibility. Going forward, litigants should prepare to (1) establish a precise testimonial assertion to be impeached, (2) secure a timely in camera inspection, and (3) demonstrate genuine contradiction between the evidence and the witness’s sworn statements.