Evidence – authentication — undue prejudice

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United States Court of Appeals For the Seventh Circuit

Civil

Evidence – authentication — undue prejudice

The district court properly excluded a videotape of the incident from evidence, where the person who recorded it was unavailable, and the tape included only part of the encounter between the plaintiff and defendant.

“According to Griffin’s lawyer, the two-minute video was e-mailed to him by Heather Brown, another student at the school who knew Griffin. Counsel could not say whether the video was taken with a cell phone or a camcorder, and conceded that there was no date or time stamp on the video. Nor could he verify if the video had been altered at any time. He affirmed that the video portrayed only a small part of the incident. The still photos, of course, displayed even less of the incident than the two-minute video, and even more selectively. Griffin contends that none of that information was required because he could have testified that the photos were what he claimed them to be; his testimony, he argues, is sufficient for authentication under Federal Rule of Evidence 901(b)(1). That Rule, titled ‘Testimony of a Witness with Knowledge,’ provides that ‘[t]estimony that an item is what it is claimed to be’ is sufficient to satisfy the requirement of authenticating or identifying an item of evidence. But Griffin was not a ‘witness with knowledge.’ By his lawyer’s own admission, he could not say how the video was made, or whether it had ever been altered. There were many valid reasons to call into question the authenticity of the video and still photographs, and many questions about the video that could be answered only by the student who produced the recording. The court did not abuse its discretion in requiring Griffin to produce the maker of the video before allowing admission of still photos extracted from it.”

Affirmed.

11-3389 Griffin v. Bell

Appeal from the United States District Court for the Northern District of Illinois, Keys, Mag. J., Rovner, J.