Day-in-the-Life Videos in Georgia Personal Injury Trials

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A video of an injured person’s ordinary day reaches a Georgia jury only through the evidence rules that govern every recording. It must be relevant, it must be authenticated, and it must survive the balancing test that lets a judge exclude relevant evidence whose probative value is substantially outweighed by the danger of unfair prejudice or of misleading the jury. Each step is a place where the other side can object.

Relevance

“Relevant evidence” is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence” (OCGA 24-4-401). “All relevant evidence shall be admissible, except as limited by constitutional requirements or as otherwise provided by law or by other rules,” and “[e]vidence which is not relevant shall not be admissible” (OCGA 24-4-402).

Authentication

“The requirement of authentication or identification as a condition precedent to admissibility shall be satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims” (OCGA 24-9-901(a)). The Code’s examples, given “[b]y way of illustration only, and not by way of limitation,” include “[t]estimony of a witness with knowledge that a matter is what it is claimed to be” and “[e]vidence describing a process or system used to produce a result and showing that the process or system produces an accurate result” (OCGA 24-9-901(b)(1), (9)).

A separate section covers recordings that no witness can vouch for personally. “Subject to any other valid objection,” video recordings “shall be admissible in evidence when necessitated by the unavailability of a witness who can provide personal authentication and when the court determines, based on competent evidence presented to the court, that such items tend to show reliably the fact or facts for which the items are offered” (OCGA 24-9-923(b)). That section “shall not be the exclusive method of introduction into evidence” of such recordings (OCGA 24-9-923(d)).

The Balancing Test

“Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence” (OCGA 24-4-403).

The Supreme Court of Georgia explained the rule in Olds v. State, 299 Ga. 65 (2016), a criminal appeal about other-acts evidence. Applying it is “a matter committed principally to the discretion of the trial courts,” and exclusion under it “is an extraordinary remedy which should be used only sparingly” (quoting State v. Jones, 297 Ga. 156, 164 (2015)). The court described probative value as depending “significantly on the quality of the evidence and the strength of its logical connection to the fact for which it is offered,” and on “the marginal worth of the evidence”: “[t]he stronger the other proof, the less the marginal value of the evidence in question.”

Frequently Asked Questions

When is the person who made the video treated as unavailable?
The statute counts a witness as unavailable who is exempted on privilege grounds, refuses to testify despite a court order, testifies to a lack of memory, cannot be present because of death or illness, or is absent despite process or other reasonable efforts. A witness is not unavailable if the side offering the recording caused the absence to keep the witness from testifying (OCGA 24-9-923(a)).

Can footage from a camera no one was operating be used?
It can, if the court finds on competent evidence that the footage reliably shows what it is offered to show, and the recording carries a date and time shown to have been made at the time of the events it depicts (OCGA 24-9-923(c)).

Does other proof of the injury affect whether the video comes in?
It can. Olds ties probative value partly to the marginal worth of the evidence, which shrinks as the other proof on the same point grows stronger.

  • OCGA 24-4-401; OCGA 24-4-402; OCGA 24-4-403
  • OCGA 24-9-901(a), (b)(1), (b)(9); OCGA 24-9-923(a), (b), (c), (d)
  • Olds v. State, 299 Ga. 65 (2016), quoting State v. Jones, 297 Ga. 156, 164 (2015)

Disclaimer

This article provides general information about the Georgia evidence rules that bear on recordings offered at trial. It is not legal advice and does not create an attorney-client relationship. Whether a particular video is admitted depends on the recording, the record, and the trial court’s rulings. Anyone preparing or opposing such evidence should consult a licensed Georgia attorney about the particular case.

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