UNITED STATES v. BELT (2026)

ORDER

The petitions for rehearing en banc are denied. The petitions for panel rehearing are also denied.

The district court admitted into evidence an automatically generated video recording from a home security camera without any testimony about the type of camera, the name of the software used to download the footage, or how the camera and software operated. There was no testimony about the reason for the missing segments in the recording. Law enforcement did not access the electronic data directly from the server to verify it obtained the entire recording during the relevant time period but instead received the footage from an individual related to a potential suspect.

The proponent must lay a proper foundation for the introduction of evidence obtained by electronic monitoring. United States v. McMillan, 508 F.2d 101, 104 (8th Cir. 1974). An item of evidence must be authenticated by the proponent with “evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed. R. Evid. 901(a). Over fifty years ago, this Court adopted factors to establish the authenticity of audio recordings, and, as relevant to this case, these factors include: “(2) That the operator of the device was competent to operate the device․ (4) That changes, additions or deletions have not been made in the recording. (5) That the recording has been preserved in a manner that is shown to the court․” McMillan, 508 F.2d at 104. The government presented no testimony on these factors, which raises significant questions about whether an adequate foundation was laid.

Additionally, as to the deletions factor, the recording contained missing segments of varying lengths from as little as a few seconds to more than twenty-two minutes. These were not gaps due to the poor quality of the microphone, United States v. De La Torre, 907 F.3d 581, 591 (8th Cir. 2018); lags in the conversation, United States v. Oslund, 453 F.3d 1048, 1055 (8th Cir. 2006); or the failure of speakers to clearly enunciate, United States v. Ray, 250 F.3d 596, 602 (8th Cir. 2001). The gaps consisted of no content at all, and the recording contained no footage of the victim being run over by the car or who was driving the car at that time. This type of missing content goes to more than merely the weight to give the evidence. It requires an explanation.

Added to this is the changing technological environment in which we live. Since at least 2017 technology has existed to alter videos in sophisticated ways that are difficult to detect. Gabe Regan, A Brief History of Deepfakes, Reality Defender, (July 6, 2026), https:/realitydefender.com/insights/history-of-deepfakes; see Daniel J. Capra, Deepfakes Reach the Advisory Committee on Evidence Rules, 92 Fordham L. Rev. 2491 (2024) (discussing the evidentiary challenge presented by deepfakes and potential solutions to address it). Mendones v. Cushman & Wakefield, Inc., No. 23-cv-028772, 2025 WL 2613764, at *1 (Cal. Super. Ct. Sept. 9, 2025) appears to be one of the first times a trial court was confronted with deepfake video evidence. Given the rapid advances in artificial intelligence (“AI”) technology related to generated video ¹ , this is a time in which courts should be more stringent in considering foundation. I believe that in this case the foundational analysis of the district court was inadequate to ensure that the video is what it purports to be and that properly applying the evidentiary gate-keeping role that resides in the district judge should have precluded the introduction of the video without further foundation.

Based on the foregoing, and for the reasons provided in the dissent to the panel's opinion, I vote to grant.

FOOTNOTES

1.   Later this year, a movie in which a deceased actor who had not filmed any scenes at the time of his death will be released. An AI generated version of Val Kilmer will appear as Father Fintin in a significant portion of “As Deep as the Grave” even though he did not film any scenes.

Judge Kelly and Judge Erickson would grant the petitions for rehearing en banc. Judge Kelly would grant the petitions for panel rehearing.