Saturday, August 15, 2009
Fighter's Chance: Utah Court Of Appeals Affirms Dismissal Of Charges Against Alleged Football Brawler After City Fails To Produce Original Recordings
A 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.
As I noted in my article, Even Better than the Real Thing, courts very rarely find genuine questions raised as to the authenticity of originals, meaning that mechanically produced duplicates are almost never excluded under the Best Evidence Rule. In its recent opinion in American Fork City v. Asiata, 2009 WL 2392496 (Utah.App. 2009), the Utah Court of Appeals did in fact find duplicates inadmissible, but it didn't (really) do so by relying on Utah Rule of Evidence 1003.
In Asiata, a fight broke out between high school football players in the closing minutes of a game, and Williams Asiata, a spectator, allegedly ran on the field and kicked one of the players twice in the head. During the ensuing investigation, the police came into possession of several video recordings of the incident obtained either through police investigation or by way of a request that was broadcast by the local media. According to the police, the created copies of these recordings and, with the exception of one recording identified as the Bangerter video, returned the originals to their owners.
The City later charged Asiata with assault, and, during discovery, Asiata obtained the City's duplicate recordings and became concerned that the recordings appeared to be incomplete and perhaps had portions edited out. Asiata thus asked to view the original recordings, but the CIty responded that it could not produce the original recordings for any video besides the Bangerter video and that it did not possess the names and addresses of the owners of the other videos.
Asiata thus filed a motion to suppress all of the video recordings, and the City responded that it was not obligated to produce the original recordings because they contained no exculpatory evidence. The court agreed with Asiata and ordered the City to produce the original recordings, as well as the names and contact information of the owners, with noncompliance with the order resulting in dismissal of the City's case against Asiata. After the CIty failed to produce the original recordings, the court dismissed the CIty's case against Asiata, prompting the City's Appeal to the Utah Court of Appeals.
In that appeal, the City claimed that, regardless of Utah Rule of Evidence 1003, it was entitled to introduce secondary evidence to prove the contents of the original recordings because, pursuant to Utah Rule of Evidence 1004(1)-(2), which states that
The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:
(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.
According to the City, because Asiata never alleged bad faith by the City or that the original recordings were obtainable by the City, it was entitled to introduce the duplicate recordings. The Utah Court of Appeals, however, found that the trial court had not dismissed the case based upon the inadmissibility of the duplicate recordings under Utah Rule of Evidence 1003 or Utah Rule of Evidence 1004(1)-(2); instead, it dismissed the case because the CIty failed to comply with a discovery order issued under Utah Rule of Civil Procedure 26(b)(1), which provides that
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action....It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
The court found that because Utah Rule of Evidence 1003 or Utah Rule of Evidence 1004(1)-(2) do not limit the court's broad discretion to order discovery of relevant materials, the dismissal was proper, regardless of whether they were admissible under the Best Evidence Rule. Furthermore, the Utah Court of Appeals found that the trial court was concerned with both possible bad faith on the part of the police and with the ultimate accuracy of the available video evidence because, at the suppression hearing, it stated:
I'm not going to suppress it now. But I'll give you, you know, seems to me that a, what concerns me is public safety getting rid of evidence. That's what it amounts to. It's not their decision. Once they have it in their possession and they see everything and they should have consulted you before they got rid of the originals. And they may have been useless to the defendant. But until we know what was in the originals we cannot presume it wasn't doctored. We don't make presumptions here. That's, that's an issue that's tied into this case that, that can shock the conscience. And I'm sure you would have, you and your office would have told them well wait, wait, wait, you keep everything, don't return it.