It begins as yet another case with a claimant with a rather suspicious injury, and surveillance is assigned to see how he is spending
It begins as yet another case with a claimant with a rather suspicious injury, and surveillance is assigned to see how he is spending his days. In this case, it is a back-injury claimant (of course, no witnesses), and the claimant alleges he can hardly get out of bed. The hearing is coming up, and it is expected that the claimant will come limping into the courtroom to “put on a show”.
Surveillance returns with some semi-helpful footage of the claimant walking his large dog around the neighborhood without any signs of a limp, but nothing that quite blows the case out of the water. It is expected that the claimant will explain that he has “good days and bad days”.
So, the only way this footage will be helpful is if the claimant does limp into the hearing. If he does, cross-examination can confirm that he limped into the courtroom, and then the footage of him walking his dog with no apparent difficulty would impeach that testimony. This will hopefully show the judge that the claimant is trying to exaggerate his condition, but of course, if the claimant knows about the footage beforehand, he will be able to either come up with an excuse for the video, or just avoid limping in the courtroom.
To muddy the waters, counsel’s written discovery requests production of “any videotape footage pertaining to the case”. So the question is, is it possible to avoid producing the footage in advance of the hearing, yet still use the footage at the hearing if the claimant comes limping in?
Under Georgia law, it appears there may be.
This article will discuss how to potentially show such surveillance footage at a hearing as impeachment evidence, without previously producing it to counsel. In addition, issues surrounding authentication and judicial discretion are addressed, which may pose some threats to the admissibility of the footage as impeachment evidence.
ADMISSIBILITY AS IMPEACHMENT EVIDENCE
In Ballard v. Meyers et al., 572 S.E.2d 572, 575 (Ga. 2002), which dealt with the admissibility of testimony by witnesses that had not previously been disclosed to opposing counsel, the court stated that “while an attorney in a civil action should disclose the names of those who will or may be relied upon affirmatively to prove the client’s case, there is no comparable rationale for requiring the disclosure of documents which may be used to attack the credibility of the other side’s witnesses.” [Emphasis added].
It should be noted that the court specifically stated that the holding was a “narrow one, as it provides only that the pretrial disclosure requirement does not extend to documentary evidence upon which a party may possibly rely defensively for impeachment purposes”. Id. at 576.
In the instant case, those are the exact circumstances in which we would want to show the surveillance footage at the hearing. The sole purpose would be to discredit the claimant’s limping at the trial, if and only if he attempts to do so. If not, then there would be no purpose for the footage. Thus, the surveillance is surely “documentary evidence upon which a party may possibly rely defensively for impeachment purposes”, as stated in Ballard v. Meyers. Id.
It is key to make the distinction as to whether the surveillance may possibly be relied upon for impeachment purposes, versus whether the surveillance directly proves some element of the defense, and will certainly be shown at trial, and thus, must be produced to counsel in advance of the hearing.
If the surveillance is not shown to opposing counsel in advance of the hearing, there will not be any stipulation as to its authenticity, and counsel may further attempt to object to the footage based on lack of foundation.
In order to get around this objection, and ensure that the judge will give the surveillance footage its full weight, the investigator who obtained the footage will need to testify as to its authenticity. Of course, counsel also requested the names of all people that may testify at the hearing in his written discovery requests, so do we produce the investigator’s name to counsel in advance of the hearing?
As mentioned above, the narrow exception for showing the surveillance footage without previously producing it allows only for “documentary evidence”. Of course, the investigator’s testimony is regarding the documentary evidence, but it is not documentary evidence in and of itself. Therefore, the safest route would be to include the investigator’s name in supplementary discovery responses to counsel, listing them as a potential witness.
The best way to do this would be to resubmit all of the original discovery responses to counsel, only making the minor additions of the investigator’s name who might testify at the hearing regarding the authenticity of the surveillance footage, in the event it is shown.
It is important to note that although the investigator’s testimony may not be needed at the hearing, they should be subpoenaed as any other witness would be. It is also important to discuss the hearing strategy with the investigator, at least regarding the surveillance footage, in advance of the hearing date.
In particular, the investigator should be instructed to review the footage and any accompanying reports before the hearing, and to bring all discs and reports with him to the hearing. He should also be advised what types of questions to expect on both direct and cross-examination, in the event counsel attempts to impeach his testimony authenticating the surveillance.
Further, the investigator should arrive at the hearing venue early on the hearing date, to observe whether the claimant is limping or otherwise “putting on a show”. If not, then it will be clear that the surveillance footage is unnecessary at the hearing, and the investigator may depart without spending the entire day at the hearing.
JUDICIAL DISCRETION ISSUES
Although the strategies listed above may be successful in showing surveillance at a hearing without previously producing same to counsel, it will ultimately be within the judge’s discretion whether to allow the surveillance to be shown.
Accordingly, if possible, the surveillance footage should not be the sole piece of impeachment evidence in one’s arsenal, especially if the claimant’s credibility is anticipated to play a large role throughout the hearing. It may be prudent to prepare a short legal brief in advance of the hearing based on the above-cited legal authority, in the event the judge attempts to exclude the surveillance footage in its entirety. However, the judge may still decide to disallow the footage from being shown.
When confronted with a situation in which the usefulness of surveillance footage is undeterminable until the hearing date, it may be possible under Georgia law to show the footage at the hearing as impeachment evidence, without producing the video to opposing counsel in advance.
Despite this, issues concerning authenticity of the video should not be ignored, and will likely need to be addressed in advance of the hearing. Specifically, the investigator that obtained the footage should be identified to counsel in any supplemental discovery responses. Additionally, the investigator should be subpoenaed and prepared for all outcomes regarding the possible use of the surveillance at the hearing. Further, the investigator should observe the claimant on the day of the hearing, to identify whether the claim is “putting on a show” when he arrives to court, which will help determine whether the surveillance will be used at the hearing.
Finally, the judge’s ability to exclude the surveillance, despite the above-cited legal authority, should be accounted for. If the claimant’s credibility will play a large role in the outcome of the hearing, impeachment evidence should be as varied as possible, and should not hinge solely on the possibility of showing any surveillance footage.