EvidenceProf Blog

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

Thursday, September 24, 2009

Better Evidence Or Best Evidence?: Second Circuit Affirms Bank Fraud Convictions Despite Best Evidence Rule

Federal Rule of Evidence 1002, the Best Evidence Rule, states that

To 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.

And it was the "except as otherwise" portion of the rule that got the appellant in United States v. Whittingham, 2009 WL 3004345 (2nd Cir. 2009). 

In Whittingham, Nadine Whittingham, a former Bank of America employee, was convicted of bank fraud and conspiracy to commit bank fraud based upon evidence that she accessed, without authorization, several accounts at the bank where she was employed, and shared information about those accounts with co-conspirators for the purpose of fraudulently obtaining the funds in those accounts, resulting in a loss in excess of $1 million. During Whittinham's trial, "the district court admitted a series of still images printed from surveillance videos that allegedly show[ed] Whittingham at her desk at approximately the times when the government argued she was illegally accessing customer accounts." The government only introduced these still photographs because the Bank of America fraud investigator lost the original videotapes.

After Whittingham was convicted, she appealed, claiming, inter alia, that the admission of the still images violated the Best Evidence Rule because the government failed to produce the original videotapes. The Second Circuit disagreed, noting that, pursuant to Federal Rule of Evidence 1004(1),

The 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.

And the problem for Whittingham was that she made "no allegations that the government lost or destroyed the originals in bad faith, and indeed, it was the Bank of America fraud investigator, not the government, who lost the videotapes." Whittingham also claimed that the still images were not properly authenticated, but the Second Circuit quickly turned that argument aside, finding that "the government adequately authenticated the photographs through the testimony of the bank employees regarding how the videos were recorded, collected, and time-stamped, as well as the circumstantial evidence placing the defendant at her desk during those times.  



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