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SUPREME COURT OF LOUISIANA

No. 95-C-0053
BURTON OLIVIER ET UX Versus PATRICK D. LEJEUNE AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF ST. MARTIN, STATE OF LOUISIANA

JOHNSON, Justice, dissenting

I respectfully dissent. Extrinsic evidence is evidence obtained from a source other than the direct questioning of the witness. The use of extrinsic evidence, including videotapes, for impeachment purposes is governed by La. Code E. art. 607 D which provides as follows: Attacking credibility extrinsically. Except as otherwise provided by legislation: (1) Extrinsic evidence to show a witness' bias, interest, corruption, or defect of capacity is admissible to attack the credibility of the witness. (2) Other extrinsic evidence, including prior inconsistent statements and evidence contradicting the witness' testimony, is admissible when offered solely to attack the credibility of a witness unless the court determines that the probative value is substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice. However, before extrinsic evidence to impeach a witness can be introduced, a proper foundation must be laid pursuant to La. Code E. art. 613 which provides as follows: Except as the interests of justice otherwise require, extrinsic evidence of bias, interest, or corruption, prior inconsistent statements, conviction of crime, or defects or of capacity is admissible after the proponent has first fairly directed the witness' attention to the statement, act or matter alleged, and the witness has been given the opportunity to admit the fact and has failed distinctly to do so. (emphasis added).

Under art. 613, if after being confronted with the fact, the witness admits the fact, the evidence is not probative of the witness's credibility. That is, upon admission by the witness, the evidence does not challenge his truthfulness and, consequently, it is not impeachment evidence admissible under arts. 607 and 613. The use of videotapes in litigation has burgeoned in recent years. Ashley S. Lipson, Art of Advocacy - Demonstrative Evidence,

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