24-9-923. Admissibility of photographs, motion pictures, video recordings, and audio recordings when witness unavailable.

As used in this Code section, the term “unavailability of a witness” includes situations in which the authenticating witness:#

1. (1)

   Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the authentication;#

2. (2)

   Persists in refusing to testify concerning the subject matter of the authentication despite an order of the court to do so;#

3. (3)

   Testifies to a lack of memory of the subject matter of the authentication;#

4. (4)

   Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or#

5. (5)

   Is absent from the hearing and the proponent of the authentication has been unable to procure the attendance of the authenticating witness by process or other reasonable means.#

   1. An authenticating witness shall not be deemed unavailable as a witness if his or her exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of an authentication for the purpose of preventing the witness from attending or testifying.

Subject to any other valid objection, photographs, motion pictures, video recordings, and audio recordings shall be admissible in evidence when necessitated by the unavailability of a witness who can provide personal authentication and when the court determines, based on competent evidence presented to the court, that such items tend to show reliably the fact or facts for which the items are offered.#

Subject to any other valid objection, photographs, motion pictures, video recordings, and audio recordings produced at a time when the device producing the items was not being operated by an individual person or was not under the personal control or in the presence of an individual operator shall be admissible in evidence when the court determines, based on competent evidence presented to the court, that such items tend to show reliably the fact or facts for which the items are offered, provided that, prior to the admission of such evidence, the date and time of such photograph, motion picture, or video recording shall be contained on such evidence, and such date and time shall be shown to have been made contemporaneously with the events depicted in such photograph, motion picture, or video recording.#

This Code section shall not be the exclusive method of introduction into evidence of photographs, motion pictures, video recordings, and audio recordings but shall be supplementary to any other law and lawful methods existing in this state.#