Bradley Day and Tracey Day v. Elvis Dean Thompson

Issue

Must a Louisiana trial judge view surveillance video in camera before ruling it inadmissible as impeachment evidence, and what follows for that duty from the increased risk that video can be manipulated using artificial intelligence and modern editing tools?

Rule

La. C.E. art. 607(D)(2) makes extrinsic evidence offered solely to attack a witness's credibility admissible unless the court determines that its probative value on credibility is substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice. La. C.E. art. 613 requires a foundation first: the witness must have been fairly directed to the matter and given the chance to admit it. Evidentiary rulings are reviewed for abuse of the trial court's great discretion under Medine v. Roniger, and where legal error is found on an otherwise complete record the Supreme Court of Louisiana conducts its own de novo review under Hicks v. USAA General Indemnity Co. Wolford v. JoEllen Smith Psychiatric Hospital supplies the background rule for surveillance video: it is a critical means of testing a personal injury plaintiff's credibility, but it may not be totally reliable, may be taken out of context, and is vulnerable to manipulation through editing, so the plaintiff must get it far enough in advance to find its weaknesses.

Application

Tracey Day was rear-ended by an eighteen-wheeler in 2017 and won a jury verdict against the driver, his employer, and its insurer. On the first morning of trial her counsel asked that she be excused from attending except to testify, because she could not sit for longer than about thirty minutes. The defense objected, then hired a private investigator, Jody Clavier, who surveilled her over the next two days and produced two videos, one of about a minute and fifty-four seconds and one of about eighteen minutes. The defense offered the video and Clavier's testimony to impeach her. The trial judge excluded both without watching the video, saying an inspection was not relevant unless the law told him he could let it in, and reasoning that admitting mid-trial surveillance would be inconsistent with his pretrial order and unfair to a plaintiff who had no chance to check the video's veracity. The Supreme Court of Louisiana held that this was an abuse of discretion. The balancing that art. 607(D)(2) requires cannot be performed in a vacuum, since probative value cannot be weighed without examining the evidence, and the court noted that a pretrial order may be modified under La. C.C.P. art. 1551(B) to prevent manifest injustice, a possibility the trial judge could not evaluate without looking. The court also held it error to rule without hearing Clavier's proffer, because his account of behavior he personally observed had relevance independent of the video and rebuttal witnesses need not be listed in the pretrial order. It is in restating the Wolford rule that the court addressed manipulation directly: while Wolford concerned pretrial discovery of surveillance video and this case involved video made during trial, the court observed that with the advent of artificial intelligence and advances in cameras and editing the risk of manipulation has greatly increased, and reaffirmed that a plaintiff must have a meaningful opportunity to assess the authenticity of and any weaknesses in surveillance video. That caveat aside, the court held that art. 607(D)(2) does not give surveillance video its own admissibility standard. Conducting its own de novo review of the proffer, the court then affirmed the exclusion on a different ground. The video showed Mrs. Day walking two small dogs, bending to pick up dropped leashes, entering a car unassisted, and sitting in it for roughly fifty minutes. None of that contradicted her testimony, because she never testified that she could not sit in a car for extended periods, that she could not walk without a limp, or that she could not walk her dogs for more than five minutes. She testified she had ridden seven hours in that same car to reach the trial, and defense counsel had asked only how long she usually walked the dogs. Without the foundation art. 613 demands, the footage was not impeachment evidence at all.

Conclusion

The Supreme Court of Louisiana affirmed the judgment for the Days. The trial court erred by excluding the surveillance evidence without an in camera review and without the investigator's proffer, but on de novo review the exclusion was correct because the footage contradicted nothing Tracey Day said, so the errors were harmless and the jury's damages award, which was never contested on appeal, stands. Note the limits: the artificial intelligence passage supports the announced duty to look at the video and the plaintiff's right to test it, but no party claimed this video was altered, and the disposition rests on impeachment foundation rather than on authenticity. Justice Crain concurred, adding that the investigator should have been allowed to testify as a fact witness. Justice Knoll concurred in part and dissented in part, agreeing the video was not impeachment evidence but finding no abuse of the trial court's discretion.

surveillance video may not be totally reliable, may be taken out of context, and is vulnerable to manipulation through various editing techniques

Chief Justice Weimer for the majority, restating Wolford v. JoEllen Smith Psychiatric Hospital

with 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.

Chief Justice Weimer for the majority, with the footnote marker after artificial intelligence omitted

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.

Justice Knoll, concurring in part and dissenting in part

Why it matters. Day v. Thompson turns a practical habit into a reviewable duty: the judge has to watch the video before ruling on it, and the opposing party has to get a real chance to test it. The court grounds that in the rising risk of manipulation, and Justice Knoll's separate opinion names deepfake technology directly, which makes this a useful state supreme court citation for anyone arguing that video deserves a hard look rather than an assumption of accuracy.

Read the full opinion on CourtListener

This summary was written from the opinion itself. Every quotation above was located in the text of the decision it is attributed to. It is a summary for public education and is not legal advice.

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