Federal Rule of Evidence 901(a) provides that
To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
Moreover, Federal Rule of Evidence 901(b)(1) provides that one way to authenticate evidence is through
(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.
It is well established that testimony by a photographer/videographer is not required to authenticate a video or photo. Instead, anyone with personal knowledge of what was filmed or photographed is sufficient. Imagine that Paula takes photos of cars driven by Carla and Dana after they crash into each other. Paula could authenticate the photos, but so could Carla, Dana, and anyone else (such as bystander) who saw the cars in the wake of the crash.
All of this law makes the recent opinion of the Court of Appeal of Louisiana, Fourth Circuit, in State v. McKee, 2026 WL 1693874 (2026), confusing. In McKee,
In the late evening hours of August 26, 2016, and continuing into the early morning of August 27, 2016, Defendant and Justin Scott (“Mr. Scott”) spent the evening together in New Orleans, Louisiana. Defendant and Mr. Scott were childhood friends. Earlier that day, beginning at approximately 4:24 P.M., they exchanged text messages about meeting to “hang out.” Later, they met at Defendant’s residence, located at 1730 North Broad Street in New Orleans, Louisiana, and rode bicycles to the French Quarter, where they patronized several bars and dined together.
During the evening, Defendant and Mr. Scott encountered Nathaniel Johnson (“Nate”), another friend of Defendant. Nate testified that, when he introduced himself to Mr. Scott, Mr. Scott suddenly and without apparent provocation became aggressive and placed him in a headlock. According to Nate, the encounter lasted approximately five minutes and escalated to the point that police were called to the scene. Officers separated Nate and Mr. Scott, placed Nate in handcuffs, and later released him with instructions to go home. No police report was generated from the incident, and Nate sustained no injuries.
Defendant and Mr. Scott later returned to Defendant’s residence on North Broad Street. According to Defendant, he said good night to Mr. Scott and attempted to go inside his residence, but Mr. Scott followed him. Defendant stated that Mr. Scott shoved him into the front door and began choking him. Defendant further claimed that he broke free, ran to his bedroom, retrieved a firearm from a gun box near his nightstand, and returned to the hallway. Defendant stated that he told Mr. Scott to “Get the fuck out,” after which Mr. Scott allegedly lunged toward him. Defendant then fired one shot.
Mr. Scott was pronounced dead at the scene.
After the defendant was convicted of second degree murder, he appealed, claiming that the trial court improperly precluded him from presenting footage of him from a police officer’s body-worn camera, which supported his claim of self-defense. Specifically,
Defendant assert[ed] that the trial court erred in excluding body-worn camera footage from responding officer, which he sought to introduce both as substantive evidence of his physical condition (that his neck hurt) immediately after the shooting and as the unsworn statements of an officer subpoenaed but not produced. Defendant argue[d] that his statement would have corroborated his claim that Mr. Scott choked him. He also argue[d] the footage should have come in over the State’s hearsay and authentication objections, either as the Defendant’s own statement, as a present-sense impression or excited utterance.
The court disagreed, concluding that
In this case, the trial court did not abuse its discretion in excluding the body-worn camera footage. The defense did not produce the officer with personal knowledge of the footage depicting Defendant’s statement as he was not properly subpoenaed. As a result, Defendant failed to produce the only potential witness with the knowledge necessary to authenticate the video.
Furthermore, the trial court was within its discretion to conclude that the statement regarding Defendant’s physical condition after the incident contained on the body-camera footage was classic hearsay being offered for their truth, and that none of the hearsay exceptions applied (emphasis added).
This authentication finding is baffling to me because there absolutely was someone else who could authenticate the video: the defendant himself. He could have simply said that it was him in the video in the aftermath of the altercation, and that would have been proper authentication under Louisiana’s counterpart to Rule 901(b)(1).
And, while this post is about authentication, the defendant’s statements about his current condition on the video would seem to clearly satisfy the hearsay exceptions for present sense impressions (Rule 803(1)) and state of mind/bodily condition (803(3)), at a minimum.
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