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A trial court should view video evidence before ruling on admissibility when the contents of the video are at issue.
In this personal-injury suit arising from a workplace accident, the employer, believing the employee to be exaggerating the extent of his pain and physical limitations, hired an investigator who conducted surveillance and recorded the employee engaging in physical activities over the course of two days. After much discussion about the video—but without watching it—the trial court excluded the evidence. The employee ultimately prevailed, with the jury assessing nearly $10 million in damages, including almost $4 million for pain and suffering.
Did the trial court err in excluding the surveillance video without first viewing it?
The court held that, except in rare circumstances not present here, when the admissibility of a video is at issue, the proper exercise of discretion requires the trial court to actually view video evidence before ruling on its admissibility. While trial courts have discretion in making evidentiary rulings, the court cannot defer to discretion that was not actually exercised. The video here should not have been excluded, and its exclusion was harmful because it went to the heart of the defendant's case. The court, therefore, reversed and remanded for a new trial.