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Authentication of Video Evidence at Trial

Video/surveillance evidence is commonly presented in workers' compensation litigation. When and how such evidence may be admitted, however, has not been well-defined. In some cases, the WCAB has refused to admit such evidence when the defendant could not lay a foundation for it by producing the investigator who captured the images. (See PSI Bearings v. WCAB (Tallent) (2001) 66 CCC 1114 (writ denied); Richard v. San Francisco 49ers (2015) 2015 Cal. Wrk. Comp. P.D. LEXIS 265.)

In the recent decision of Johnson v. Lexmar Distribution dba LDI Trucking, Inc., 2021 Cal. Wrk. Comp. P.D. LEXIS 289, however, the WCAB indicated that the investigator's testimony no longer might be necessary to admit the material into evidence.


In Johnson, the applicant worked as a truck driver who claimed that he sustained a specific injury when he was arrested by police officers. The defendant disputed the claim based on the initial physical aggressor defense in Labor Code § 3600(a)(7). It filed a declaration of readiness (DOR) to proceed, stating that it had dashcam video evidence taken from the applicant's truck showing that he refused to cooperate and provoked the police officers. The DOR further stated that the "entire confrontation with police was captured on video." When the parties were unable to resolve the case at a priority conference, it was set for trial.

At trial, the applicant's attorney called into question the reliability of the dashcam videos because it was cut into four different segments, not one continuous video. The WCJ sustained the objection on the grounds that the defendant did not list a witness in the pretrial conference statement who could testify as to the videos' chain of custody, how the films were prepared, what equipment was used and whether there had been any editing, splicing or alteration of the film. The defendant filed a petition for removal, asserting that the WCJ applied an incorrect standard for authentication, stating that the videos could be authenticated by the applicant's testimony, circumstantial evidence, content and location or any means provided by law.


The WCAB first addressed the authentication issue by citing its prior decision in Johnson v. Tennant Co., 2009 Cal. Wrk. Comp. P.D. LEXIS 234. In that case, surveillance was performed over several days by three different investigators, but the defendant produced only one of them. The WCJ excluded the videos based on the fact that they were not properly authenticated. Specifically, the judge believed that there was a serious chain-of-custody problem that could not be authenticated with the witnesses offered by the defense.

The WCAB explained that per LC 5708, it was not bound by the common law or statutory rules of evidence. But it added that even in criminal and civil cases, a chain of custody was not necessary to establish the authenticity of a video. The WCAB stated that "[T]hough the requisite foundation may, and usually will, be laid by the photographer, it may also be provided by any witness who perceived the events filmed." It added, "A video recording is authenticated by testimony or other evidence that it accurately depicts what it purports to show."

The WCAB then cited Milla v. United Guard Security, Inc., 2020 Cal. Wrk. Comp. P.D. LEXIS 330. In that case, the WCJ refused to admit an applicant's Instagram photos on the grounds that they were not properly authenticated. The WCAB in Milla stated, "A photograph or video recording is typically authenticated by showing it is a fair and accurate representation of the scene depicted." It added, "This foundation may, but need not be, supplied by the person taking the photograph or by a person who witnessed the event being recorded."

Based on this authority, in Johnson, the WCAB concluded that the defendant's dashcam videos were improperly excluded and that the defendant should be given the opportunity to authenticate them through the applicant's testimony and, if necessary, the testimony of another witness.

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The obvious difference between the recent Johnson decision and the board's prior decisions is the types of evidence sought to be admitted. Unlike surveillance evidence or Instagram photos, the dashcam video was recorded automatically and not by an investigator or photographer. No person was responsible for producing the dashcam evidence. So the defendant could not produce the operator of the dashcam because there wasn't one.

Nevertheless, the WCAB recognized that other forms of evidence did not need to be authenticated in workers' compensation proceedings in order to be admissible. Moreover, it noted that even in other tribunals, video evidence needn't be authenticated by the person who shot it. Instead, it explained a video could be authenticated by showing that it is a fair and accurate representation of what it purports to show, and concluded that the dashcam video in Johnson could even be authenticated by the applicant's own testimony.

As a panel decision, Johnson is not binding on WCJs or other panels. Nevertheless, the decision follows a trend of relaxing the standards for authentication of evidence. This writer believes that this decision will establish the standard moving forward for the admissibility of surveillance films and other evidence. The workers' compensation system is more informal than the civil courts, and it would be illogical for the WCAB to require more stringent standards than those courts for the admission of evidence.

Accordingly, this decision probably will make it easier for parties to admit surveillance films. It's not uncommon for cases to proceed to trial years after surveillance film is taken, and it's often difficult to track down all the investigators involved. Of course, the investigators still might offer testimony that the film depicts what it purports to show. But the film also can be authenticated by any person who witnessed the event, including the injured worker.

Ultimately, the WCJ must decide whether the films are authentic. She or he also has authority to determine the weight of this evidence. For further discussion on the use of surveillance film in workers' compensation proceedings, see Sullivan on Comp Section 14.13 Surveillance.

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