EvidenceProf Blog

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

Thursday, May 22, 2008

Age Ain't Nothing But A Number, Take 3: Why The Copy Of A Copy Of A Copy Was Admissible In the R. Kelly Trial

I have received a few e-mails asking about how the R. Kelly sex video, which has been described as, "at best, a copy of a copy of a copy" was admissible in his child pornography trial.  Well, let's take it through the legal analysis.  Illinois does not actually have a codified rule of evidence (although incoming Illinois Supreme Court Chief Justice Thomas R. Fitzgerald has indicated that he is going to "try to do something with possibly codifying the law of evidence in Illinois"), but the evidentiary rules its courts have applied pretty closely mirror the Federal Rules of Evidence.  And according to the Best Evidence Rule (Federal Rule of Evidence 1002), "[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." 

Here, the prosecution in the R. Kelly is indeed seeking to prove the contents of a tape recording and thus had to produce the original, unless the exceptions in Rules 1003 or 1004 applied.  Under Federal Rule of Evidence 1004, a party seeking to prove the contents of a recording can do so through any form of secondary evidence (such as a copy) if that party establishes one of three exceptions or establishes that the recoding is collateral to the issues at trial.  Clearly the recording in the R. Kelly case is central to the prosecution's case and not "collateral," meaning that the prosecution needed to establish one of three exceptions:

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

     -(2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or

     -(3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing.

Now, the pre-trial hearings in the R. Kelly case were closed, so I don't know whether the prosecution was able to establish any of these 3 factors.  Even if it could not, however, the prosecution still could have introduced the "copy of a copy of a copy" under Federal Rule of Evidence 1003, which indicates that a mechanically produced "duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.  Now, some of you may seize upon this first exception and think that R. Kelly's attorneys could have raised a genuine question as to authenticity.

(Indeed, looking at what's happened in the trial so far, his lawyers seem to be arguing that the man in the video is computer generated, that the man can't be R. Kelly because he doesn't have a mole, and the victim's head might have been digitally superimposed on a more mature woman's body.  Indeed, defense counsel asked the alleged victim's former best friend, who identified her former friend as the girl in the video, if it was possible her former friend's head had been superimposed onto a more mature body.  The former friend indicated that this was entirely possible, but then defense counsel made the strange choice to ask her whether the superimposition of a man's head on an infant's body in the Wayans brothers' 2006 movie "Little Man" looked pretty real.  The question, which seems to me akin to asking whether the Wayans brothers actually looked like Caucasian women in their 2004 movie "White Chicks," drew a "Not really" response from the witness and guffaws from the courtroom).

The problem with this, however, is one that I addressed in my article, Even Better than the Real Thing, which will be published in the Maryland Law Review later this year and which is accessible now on SSRN if you sign up for a free account (SSRN link).  And that problem is that courts almost never find genuine questions raised under Rule 1003(1).  In the article, I argue that such a "conservative" application of this exception goes against its legislative history and plain language and that it makes little sense in a world where nearly anyone can fairly quickly create a fairly convincing forgery or digitally altered copy.  But as things stand, Federal Rule of Evidence 1003 is basically a judicial rubber stamp, allowing for the admission of almost anything which the proponent claims is a mechanically produced duplicate.

(You can find my previous posts on the R. Kelly case here and here).



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