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Editor: Colin Miller
Univ. of South Carolina School of Law

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Friday, January 18, 2008

Minority Report: Minnesota Judge Makes Odd Best Evidence Ruling

A judge in Minnesota has made a Best Evidence ruling which is at odds with prior precedent in the trial of a man accused of making terroristic threats to a county prosecutor.  In February 2002, Mohammed Masood was in county jail pending charges of attempted murder based upon his alleged attack on a police informant with a pickaxe when he allegedly made terroristic threats in phone calls to a county prosecutor.  The police allegedly recorded those phone calls but then "inadvertently" destroyed them as part of regular police procedure because the police did not know that charges were pending against Masood.

The prosecution planned to introduce transcripts of the phone calls at trial, but Masood's public defender claimed that the transcripts were inadmissible because they could not be compared against the original recordings.  Judge Mary Leahy granted defense counsel's motion and deemed the transcripts inadmissible, although she found that they could be used non-substantively to refresh witness' recollections pursuant to Minnesota Rule of Evidence 612.

Unless, Judge Leahy disbelieved the police's inadvertent destruction claim, her decision seems inconsistent with prior precedent.  Minnesota Rule of Evidence 1002, its version of the Best Evidence Rule, states that [t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules...."  Minnesota Rule of Evidence 1004(1), however, states that "[t]he original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if...[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith."

Courts very rarely find that the proponents of secondary evidence, such as transcripts of tapes, lost the original in bad faith.  Thus, for instance, in Estate of Gryder v. C.I.R., 705 F.2d 336 (8th Cir. 1983), the Eighth Circuit affirmed at a Tax Court ruling allowing the Commissioner of Internal Revenue to introduce secondary evidence of corporate records based upon the finding that IRS employees destroyed the originals "negligently but not in bad faith."  Courts have also frequently allowed for the admission of secondary evidence where propnents destroyed the originals in the ordinary course of business. See, e.g., United States v. Workinger, 90 F.3d 1409, 1415 (9th Cir. 1996).  As I argue in an upcoming article, there is good reason to question these decisions, but, unless Judge Leahy rejected the police's contentions about the destruction of the recordings, her decision was against current precedent.

-CM

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