EvidenceProf Blog

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

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Thursday, March 27, 2008

Albany River Rat?: Kay Song Trial Raises Best Evidence Issue

Kay Song, a science teacher at Albany Middle School in upstate New York, stands charged of two felony counts of oral copulation of a person younger than 16 and two counts of sexual penetration with a foreign object in connection with alleged sexual acts with one of her former female students in 1990.  If Song has her way, however, testimony about the contents of letters that Song may have written to the alleged victim will be deemed inadmissible, striking a potentially fatal blow to the prosecution's case.  You see, the alleged victim did not contact authorities concerning the Song's alleged acts until last year, by which point the statute of limitations had run out, which means that there must be corroborating evidence about Song's alleged crimes beyond the victim's testimony.

The prosecution seeks to provide that evidence through testimony about the contents of letters that Song allegedly wrote to the victim around the time of the alleged sexual abuse.  The prosecution seeks to prove their contents through testimony because the letters have since been destroyed.  Defense counsel has argued that oral testimony about the contents of these letters would be "absolutely, not remotely admissible as evidence."  There's a good chance, however, that this argument is without merit.

Pursuant to the Best Evidence Rule, "[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 or by Act of Congress."  At the same time, pursuant to Federal Rule of Evidence 1004, which New York has applied in its case law, see Schozer v. William Penn Life Ins. Co. of New York, 644 N.E.2d 1353, 1355 (N.Y. 1994), "[t]he original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if [inter alia]

     (1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith."

Furthermore, as I note in my new article, Even Better than the Real Thing, (look at pages 21-22) courts rarely find that originals have been lost in bad faith and have found that even negligently destroyed documents were not destroyed in bad faith.  Thus, it is unlikely that the New York court will find that the letters were destroyed in bad faith, which means that it will allow testimony about their contents.  If, however, the court makes such a finding, any testimony about the contents of the letters will be inadmissible under the Best Evidence Rule, and charges against Song will likely be dropped.

-CM 

 

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