B. Broadcast materials

There is no case law addressing this issue.

There is no reported First Circuit decision specifically addressing what is required when turning over tapes of material that was aired, or who must appear as a representative or custodian of the broadcaster. This is usually a matter negotiated by the parties.

When a broadcast reporter or entity is subpoenaed to turn over tapes that were aired, a stipulation may often be advisable. If live testimony is required, a non-reporter representative, such as a custodian of records or videotape librarian, may be able to authenticate tapes that were aired. In a criminal trial it may not be sufficient to use a representative because of Sixth Amendment confrontation clause issues.

Courts in the Third Circuit do not appear to have expressly addressed this point in a relevant context.

Unlike newspapers or printed periodicals, videotapes are not self-authenticating. Under Federal Rule of Evidence 902(6), authentication is satisfied by “evidence sufficient to support a finding that the matter is what the proponent claims.” Generally, this would require testimony by a witness who can demonstrate the chain of custody of the tapes, most likely a representative of the broadcaster. The courts do not specify who that representative must be.

No reported decision of the Fifth Circuit addresses what is required when turning over tapes of material that was aired, or who must appear as a representative or custodian of the broadcaster. This is usually simply a matter of negotiation between the parties.

Where the subpoenaing party seeks only confirmation that a videotape or audiotape accurately depicts a broadcast, any qualified administrative person should be able to substitute for a subpoenaed journalist; although substitution should be worked out in advance.

There is no statutory or case law addressing this issue.

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

There is no statutory or case law addressing this issue.

There is no Alabama statutory or case law addressing this issue.

If all that is sought is confirmation that a particular new story actually aired on a broadcast station, a reporter or other news person is not needed—and generally should not be produced. In such instances, if the parties are not relying on self-authentication, a simple affidavit from the records custodian, or one who logs traffic for the station, will ordinarily suffice. If the parties are not willing to settle for this, it is a sign that what they really want is more than authentication.

There is no statutory or case law addressing this issue. Parties often stipulate to the authenticity of news reports that actually aired. If stipulation is not possible, the broadcaster's custodian of records could provide an authenticating declaration or affidavit. Live testimony on such issues is extremely rare.

There are no cases or court rules that set out special requirements regarding the use or authentication of broadcast materials at trial. In the absence of special requirements, the use of the materials should be governed by general evidentiary rules and standards for admissibility.

Broadcast materials may be authenticated by anyone capable of testifying that the materials are an accurate representation of what they purport to be. See Jones v. City of Los Angeles, 20 Cal. App. 4th 436, 440 n.5, 24 Cal. Rptr. 2d 528 (1993). As the court explained, “though 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.” Id. (citations omitted).

In addition, California Evidence Code § 1553 provides for self-authentication of certain aspects of video and digital tapes:

A printed representation of images stored on a video or digital medium is presumed to be an accurate representation of the images it purports to represent. This presumption is a presumption affecting the burden of producing evidence. If a party to an action introduces evidence that a printed representation of images stored on a video or digital medium is inaccurate or unreliable, the party introducing the printed representation into evidence has the burden of proving, by a preponderance of evidence, that the printed representation is an accurate representation of the existence and content of the images that it purports to represent.

Cal. Evid. Code § 1553(a). Consequently, if the party issuing the subpoena is only interested in the contents of the broadcast materials, the reporter’s testimony may be unnecessary. Typically, however, the subpoenaing party desires more information than is available in the materials themselves – even if it is only the reporter’s testimony that the materials were true and accurate as broadcast – and will insist on the reporter’s testimony.

If the broadcast is being offered in evidence, Rule 1003 of the Colorado Rules of Evidence allows as admissible a duplicate unless a genuine question arises as to the authenticity of the original, or where circumstances would be unfair if the duplicate were admitted.

There is no rule as to who must appear with the subpoenaed materials; but absent the consent of the issuer or court order, the person subpoenaed should appear to verify that the things produced are what was sought.

In the D.C. Circuit, audio recordings “may be authenticated by testimony describing the process or system that created the tape or by testimony from parties to the conversation affirming that the tapes contained an accurate record of what was said.”  United States v. Strothers, 77 F.3d 1389, 1392 (D.C. Cir. 1996) (internal marks omitted).  Secondary sources likewise suggest that the person who recorded a broadcast tape likewise need not be called to authenticate it: a witness who is familiar with the object or scene depicted can lay the predicate foundation.  See Jordan S. Gruber, Foundation for Contemporaneous Videotape Evidence, 16 Am. Jur. Proof of Facts 3d § 493 (1992).

Not litigated.

No statutory or case law addressing this issue exists.  However, case law suggests that the person who recorded the broadcast tape need not be called to authenticate it.  Rather, a witness who is familiar with the object or scene depicted in the video may lay the predicate foundation.  See, e.g., Washington Post v. D.C. Dep’t of Employment Servs., 675 A.2d 37, 43 (D.C. 1996).

Section 90.5015, Florida Statutes, provides for authentication via journalist’s affidavit of certain information. Specifically, Section 90.5015(6) provides:

Photographs, diagrams, video recordings, audio recordings, computer records, or other business records maintained, disclosed, provided or produced by a professional journalist, or by the employer of principal of a professional journalist, may be authenticated for admission in evidence upon a showing, by affidavit of the professional journalist, or other individual with personal knowledge, that the photograph, diagram, video recording, audio recording, computer record, or other business record is a true and accurate copy of the original, and that the copy truly and accurately reflects the observations and facts contained therein.

§ 90.5015(6), Fla. Stat. (2023). Thus, even where the privilege has been overcome, a journalist may avoid appearance in court by filing an affidavit that establishes both that the document or recording is what it purports to be and that the information contained within the document or recording accurately reflects the observations of the professional journalist. In short, it is an affidavit of authenticity andaccuracy, though the court does have the discretion to refuse to admit the evidence. See§ 90.5015(7), Fla. Stat. (2023).

Georgia law does not recognize news broadcasts as self-authenticating, but parties to litigation in almost all cases stipulate to their authenticity. Failure to stipulate without a good faith basis to dispute authenticity is potentially sanctionable.

Typically, the subpoenaed party will designate a custodian of records who will produce the materials. In typical practice the records are usually requested by a deposition upon written questions.

The same general rule applies to broadcasts, in that the media witness will almost certainly be required to confirm the fact of the broadcast and the accuracy of the information contained in the broadcast. Ordinarily, the media witness will try to obtain an agreement that will allow for such testimony but will eliminate the requirement that the reporter bring outtakes, notes and other types of non-aired information.

The Northern District of Illinois addressed the issue of material that was both broadcast and not broadcast. United States v. Bingham, 765 F. Supp. 954, 956 (N.D. Ill. 1991). The interview that was broadcast was turned over to the court in response to a subpoena duces tecum, but NBC refused to turn over the un-broadcast outtakes from the interview. Although the court did not address the specific procedure of turning over material that was aired, the court did require that the outtakes portion not aired be subject to an in camera review in order to rule accurately on the motion to quash the subpoena. Id. The court held that because the party impeaching a witness under Federal Rule of Evidence 613 must know the substance of the prior inconsistent statement, the defense counsel must have access to the outtakes. Id. at 957. Instead of allowing the entire video to be presented at trial, however, the court ordered the video to be transcribed and turned over to the parties. Id. at 959.

Broadcast materials must be authenticated in court. Methods of authentication are listed in Ind. R. Evid. 901 and include testimony of a witness with knowledge that a matter is what it is claimed to be. Generally, the parties may stipulate as to the authenticity of a tape or document. A party is estopped from denying the authenticity of a document if that party stipulates to their authenticity. LeFlore v. State, 823 N.E.2d 1205, 1211 (Ind. Ct. App. 2005). However, all parties must so consent before such authentication is permitted.

Broadcast materials are not self-authenticating under Iowa Rules of Evidence 5.902. Authentication is a condition precedent to admissibility. Iowa R. Evid. 5.901. Authentication of an item can be accomplished by testimony of a person with knowledge that the item is what it is claimed to be. Iowa R. Evid. 5.901. The parties may stipulate as to the authenticity of the item, negating the need for testimony.

Unless waived, a representative of the broadcaster must appear to furnish testimony authenticating the video tape. There are no specific rules identifying who the representative should be.

Although there are no reported cases on the issue, Kentucky decisions suggest, at least in the context of recorded material, that the person responsible for the factual matter contained within such material is required to appear to authenticate it. Brock v. Commonwealth, 947 S.W.2d 24 (Ky. 1997).

The same rules apply for broadcast materials as for newspaper articles. See § VII.A above and R.S. 45:1455.

Broadcast materials are not self-authenticating, but could be authenticated by the camera person, the reporter, a technician or an editor. See Me. R. Evid. 901.

Maryland case law does not address which, if any, representative of a broadcaster must appear when turning over tapes of material that was aired.

Broadcast materials are not self-authenticating and, therefore, must be authenticated in court.

Not addressed.

Broadcast materials are not self-authenticating under any specific subdivision of Minn. R. Ev. 902.

Miss. R. Evid. 901(a) provides that "[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Other than this rule, there is no statutory or case law addressing this issue.

A similar affidavit could seemingly serve to authenticate a true and accurate copy of a video as aired, if this were the only purpose of a subpoena.

There is no particular requirement as to who the representative of a subpoenaed broadcaster must be.

Same rules as are applicable to newspaper articles.

There appear to be no Nevada cases specifically addressing whether tapes of broadcast materials are self-authenticating or what steps must be taken to authenticate a broadcast tape. However, the Nevada Supreme Court has stated that “the requirement of authentication . . . is satisfied by evidence or other showing sufficient to support a finding that the matter in question is what its proponent claims.” Archanian v. State, 122 Nev. 1019, 1030, 145 P.3d 1008, 1016–17 (2006) (citing NRS 52.015(1)) (finding videotape downloaded from surveillance system authenticated by police detective testimony).

There is no statutory or case law addressing this issue.

(a) N.J.S.A. 2A:84A-21 provides, in part:

The provisions of this rule insofar as it relates to radio or television stations shall not apply unless the radio or television station maintains and keeps open for inspection, for a period of at least 1 year from the date of an actual broadcast or telecast, an exact recording, transcription, kinescopic film or certified written transcript of the actual broadcast or telecast.

No New Mexico law specifically addresses this issue.

Although no New York cases specifically address the issue, the general requirements of CPLR § 2305(b) appear to apply to valid subpoenas duces tecum directed at broadcasters seeking broadcast materials such as tapes. (See above). Thus, a broadcaster would have to produce a person with sufficient knowledge to identify the broadcast materials and testify as to their origin, purpose and custody. CPLR § 2305 (b). Assuming that the witness has the requisite knowledge, he or she could be an editor, reporter, newscaster or archivist.

To the extent that the broadcaster is also required as an evidentiary matter to authenticate the broadcast materials for trial, New York does not have a self-authenticating rule for such materials analogous to CPLR § 4532 for newspapers and periodicals. See “Newspaper articles” section above. Therefore, the broadcaster may have to provide "[s]ome reliable authentication and foundation" before broadcast materials are entered into evidence.  People v. Patterson, 93 N.Y.2d 80, 84, 688 N.Y.S.2d 101, 104 (N.Y. 1999) (referring to non-exclusive methods of authentication, including that "a videotape may be authenticated by the testimony of a witness to the recorded events or of an operator or installer or maintainer of the equipment that the videotape accurately represents the subject matter depicted."). Testimony from a camera operator might be sufficient, depending on the nature of the broadcast materials. In People v. Ely, 68 N.Y.2d 520, 527-28, 510 N.Y.S.2d 532 (N.Y. 1986), the New York Court of Appeals explained the authentication requirements for audio tapes as follows:

Admissibility of tape-recorded conversation requires proof of the accuracy or authenticity of the tape by "clear and convincing evidence" establishing "that the offered evidence is genuine and that there has been no tampering with it." The necessary foundation may be provided in a number of different ways. Testimony of a participant in the conversation that it is a complete and accurate reproduction of the conversation and has not been altered or of a witness to the conversation or to its recording, such as the machine operator, to the same effect are two well-recognized ways. Testimony of a participant in the conversation together with proof by an expert witness that after analysis of the tapes for splices or alterations there was, in his or her opinion, no indication of either is a third available method.

A fourth, chain of custody, though not a requirement as to tape recordings is also an available method.

68 N.Y.2d at 527-28 (citations omitted); see also People v. Curcio, 169 Misc.2d 276, 280, 645 N.Y.S.2d 750, 752 (N.Y. Sup. Ct. St. Lawrence Cty. 1996). In Bennett v. Stallone, 2014 WL 122381, *5 (W.D.N.Y. 2014), one of the participants to a recording testified as to the genuineness of the recording before it was introduced into evidence.

As a practical matter, however, as with newspapers, the parties are likely to stipulate to at least the authenticity of broadcast material that has been aired.

Motion pictures and videotapes, including broadcast materials, are not self-authenticating under Rule 902(6) of the North Carolina Rules of Evidence, but they are admissible into evidence under the same rules applicable to still photographs. State v. Strickland, 285 N.C. 253, 173 S.E.2d. 129 (N.C. 1970); State v. Lewis, 58 N.C. App. 348, 351, 293 S.E.2d. 638, 640 (N.C. App. 1982). A witness other than the photographer can testify that a photograph is authentic. State v. Gardner, 228 N.C. 567, 573, 46 S.E.2d. 824, 828 (N.C. 1948); White v. Hines, 182 N.C. 275, 109 S.E. 31, 34 (N.C. App. 1921). For example, in the Lewis case, a sheriff testified as to the authenticity of television videotape of a crime scene. 58 N.C. App. at 351.

The North Dakota Rules of Evidence do not address what is required when turning over broadcast material.

Digital reproductions of broadcast materials (like tapes formerly) produced pursuant to subpoena have rarely raised issues of identification or authenticity.  They are generally accepted by the subpoenaing party for what they are.  If a person from a broadcast entity is required to testify, our experience has been that a records custodian, engineer, or other non–journalist should be designated; the reporter or news director should not testify.

Authentication may be made by any witness with knowledge that a matter is what it is claimed to be, i.e., material actually broadcast. Oregon Evidence Code 901(2)(a).

Broadcast materials, such as videotapes, must be authenticated if offered as evidence at trial. To authenticate such materials, “a witness who has made the videotape” must identify the objects and people shown in the tape, as well as the time and place the video was made. Pierce v. Unemployment Comp. Bd. of Review, 641 A.2d 727, 728 (Pa. Commw. 1994). The editor or film processor does not need to testify to authenticate a video. See id. at 729. Rather, anyone “who can confirm that the representation is accurate as to objects depicted, at the relevant time, is sufficient.” Id.

Since there is no statutory provision or case law addressing this issue, the terms of the subpoena would apply.

If the issue is whether a particular piece was broadcast, the parties typically will stipulate regarding a broadcast to avoid having a representative of the broadcaster appear. If no stipulation is reached, a representative who has first-hand knowledge of what was broadcast or who is the custodian of business records revealing broadcast information would have to appear.

There is no pertinent case law on this issue.

There is no statutory or case law on this issue. Broadcast materials are not included in Tennessee's list of types of evidence that are self-authenticating in court. See Tennessee Rules of Evidence 902.

Under the shield law, recordings of broadcasts by television and radio stations are self-authenticating. See Tex. Civ. Prac. & Rem. Code §22.027, and Tex. Code Crim. Proc. art. 38.111. As a practical matter if a journalist receives a civil subpoena and if the broadcast is on the media entity’s website, the journalist should tell the subpoenaing party to download it from the website, and it is self-authenticating. If the journalist receives a criminal subpoena, the journalists should make a copy and charge the subpoenaing party for the cost of production. In either instance, the journalist does not need to provide a business records affidavit with the video nor should they have to testify to authenticate the materials because the video is self-authenticating.

There is no statutory or case law addressing this issue.

Not addressed.

Broadcast materials are generally not treated as self-authenticating.

Washington's case law has not yet squarely addressed this issue.

Ordinarily, when broadcast materials are subpoenaed, no personal appearance is necessary in West Virginia.

Broadcast materials are not self-authenticating, and extrinsic evidence of authenticity is required as a condition precedent to their admissibility.

Of the two or three incidents of which we are aware where broadcast materials were subpoenaed, reporters were asked to testify that they made the recordings of a particular person on a particular date.