EvidenceProf Blog

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

Wednesday, December 16, 2009

The Best Of Everything, Take 2: Federal Public Defender Files Petition For Writ Of Certiorari With Supreme Court In Best Evidence Case

Back in June, I posted an entry about the Fourth Circuit's recent opinion in United States v. Smith2009 WL 1452045 (4th Cir. 2009). In Smith, Cordell Smith was convicted of possessing with intent to distribute a quantity of crack cocaine, using and carrying one or more firearms during and in relation to a drug-trafficking crime, and possessing one or more firearms, having been previously convicted of a felony. To prove the interstate nexus element of the felon in-possession count, the government presented the testimony of Special Agent Andrew Cheramie of the ATF that firearms recovered from Smith's apartment had been manufactured in states other than North Carolina. Smith's attorney objected to the proposed testimony of Special Agent Cheramie on the ground that it would violate Federal Rule of Evidence 1002. He argued that Cheramie's testimony, which was based on written reference materials and ATF computer databases, none of which were offered into evidence, violated the Best Evidence Rule. The district court overruled the objection and allowed Cheramie to testify without requiring him to introduce any reference materials into evidence

The Fourth Circuit subsequently affirmed, and I disagreed with its holding, concluding that:

Clearly, the government sought to prove the contents of the writings and other materials from which Cheramie learned that firearms recovered from Smith's apartment had been manufactured in States other than North Carolina. As Smith noted, Cheramie had no independent personal knowledge of where those firearms were manufactured. Instead, his knowledge of where those firearms were manufactured was dependent on the writings and other materials. Thus, his testimony was, in effect, proving the contents of the writings and other materials because he had no personal knowledge of where the firearms were manufactured. Accordingly, Cheramie's testimony triggered the Best Evidence Rule, and the Fourth Circuit's conclusion was erroneous.   

Well, yesterday, I got an e-mail from Matthew R. Segal, an Assistant Public Defender, who informed me that he has filed a petition for writ if certiorari with the Supreme Court for Smith. You can download a copy of the petition by clicking on the link below:

I agree with the points made in the petition and continue to believe that Cheramie's testimony was received in violation of the Best Evidence Rule. According to Segal, "The government has waived its right to file an opposition brief, so the case has been distributed for the Supreme Court's conference of January 8, 2010."



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Is he really trying "[t]o prove the content of a writing" of the document? It seems more like this is a hearsay problem and not a best evidence problem. I think to violate the best evidence rule, the -purpose- you're offering the testimony must be "[t]o prove the content of a writing." Here, he's not providing the testimony to prove that the writing actually said X, Y, or Z, and therefore the words X, Y, and Z are in the writing. Instead, he's offering it to prove X, Y, and Z (the firearms were transported in interstate commerce) or the truth of the matter asserted.

Interpreted any other way, what would be the difference between the best evidence rule and hearsay?

Posted by: Tom Jacob | Dec 16, 2009 12:57:39 PM

1. Under Rule 602, a witness needs personal knowledge of a matter to testify. If a witness' knowledge of a matter is dependent on a writing, his testimony would be proving the content of that writing. This is why the Fourth Circuit was wrong in Smith.

2. Here's the difference. Let's say that Dan is on trial for murder. His defense is that Carl committed the murder. He doesn't claim that he saw Carl commit the murder. Instead, he claims that he read Carl's confession note. The problem is that Dan doesn't produce the note at trial. He is testifying from memory.

First, we have a Best Evidence Problem. Dan needs to produce the original note (or a duplicate) or account for his non-production of the original. Let's say that he does account for his non-production of the original. He claims that the original was stolen from him and the court believes him. Dan has satisfied the Best Evidence Rule.

Second, though, we still have the hearsay issue. Assuming that Dan could authenticate the confession note as a note written by Carl, he would be testifying about it to prove the truth of the matter asserted -- that Carl killed the victim, making the note hearsay. And assuming that Carl testifies at trial, I don't see a hearsay exception that applies.

Posted by: Colin Miller | Dec 16, 2009 1:44:25 PM

Under 806, the declarant of hearsay offered for the truth may have his credibility attacked/rebutted as if he were a witness. The advisory committee notes to 806 specifically say that the declarant is in effect a witness. The advisory committee notes to 803 specifically support this notion and go further to say, "[i]n a hearsay situation, the declarant is, of course, a witness, and neither this rule nor Rule 804 dispenses with the requirement of firsthand knowledge." So, the witness testifying on the stand to hearsay doesn't need personal knowledge of the content of the writings. Instead, the witness needs only be able to prove up an exception to the hearsay rule and that the declarant of the statement has personal knowledge.

I think the difference between our positions is our interpretation of the best evidence rule when it says "[t]o prove the content of a writing..." Mine is a more narrow interpretation. I believe that those words mean that when one party wants to prove that a writing actually had specific words in the document itself. This would come up in wills, contracts, agreements, and other situations where the words themselves have independent legal significance, for example. In your example, I don't think Dan's end purpose is to prove the content of the writing. Dan's real purpose is to prove the truth of the matter asserted in the writing. To do that, Dan would have to prove the content of the writing, but when that's not his purpose, I don't think the best evidence rule applies.

With that said, I think there's strong support for your interpretation in the advisory committee notes to 1002: "Application of the rule requires a resolution of the question whether contents are sought to be proved. Thus an event may be proved by nondocumentary evidence, even though a written record of it was made. If, however, the event is sought to be proved by the written record, the rule applies." But, I still don't think the court is wrong in interpreting the rule they way they did. The best evidence rule has been whittled way by the courts and, rightly so, because I don't think a broader interpretation serves any real purpose. The federal rules, when enacted, took a lot of teeth out of common law rule. Moreover, I think when you use the writing to prove the truth value of the contents and not for the end purpose of proving the content itself, your use may even fall under 1004(4) -- the controlling issue isn't the content itself, but the truth value the content asserts. Finally, the situation we're concerned with is whether other evidence of contents correctly reflects the contents. Under 1008(c), that's a 104(b) question of admissibility.

In sum, the concerns and the policy behind having a broader best evidence rule are taking care of by other rules and mechanisms of trial. Hearsay and authenticity rules provide a strong balance. What's more, you gotta imagine the prosecutor's closing argument at Dan's trial: "Dan says Carl did it and that Carl even wrote a note. Isn't it convenient, ladies and gentlemen that Dan didn't bother bringing the note to trial?" And, you have to trust in the power of our jury system to make credibility determinations.

Posted by: Tom Jacob | Dec 17, 2009 9:50:52 AM

I used Smith in my Evidence class this fall to illustrate the wrong way to analyze the admissibility issue. First, the 4th Cir. declined to accept the witness as an expert and, thus, eliminated the possibility that the materials from which he learned of the situs of production of the gun could qualify as a learned treatise. Second, because the witness was not testifying as an expert, he should not have been permitted to give an opinion based on otherwise inadmissible evidence (FRE 703). Third, the witness was apparently unable to lay, and the AUSA apparently didn't try, the foundation required for an 803(17) (Market Reports, Commercial Publications) exception (if these documents could have otherwise qualified.) Fourth, the court's "hybrid lay expert" approach, seeks to avoid the contrictures on expert testimony in FRE 702-703. Fifth, by pointing to these unproduced writings or publications as the source of the information upon which the witness based his opinion, the government chose to elevate the actual writing to a position of prominence in the litigation. Thus, they were trying to prove the contents of the writing to bolster the opinion of their "lay exper" because he couldn't otherwise testify from personal knowledge. If not an expert within the meaning of 702, the jury should have been able to look at the same written material and come to their own conclusion concerning the situs of the gun's manufacture without the witness "testifying to where the gun was made." It was the writen material that revealed where the gun was made, not the "opinion" of the witness. The writing was the evidence and the government was trying to prove the contents of that writing. Under those circumstances FRE 1002 requires the original (or a duplicate). The irony of it all is that producing the original or a duplicate in appropriate circumstances isn't that onerous. The gov't could have easily produced the original writing, gained the conviction, and avoided the long and costly appeals process. Unless, of course, the writings weren't so clear or other conclusions could have been drawn from them. But that gets us back to the whole reason for the BER in the first place.

Posted by: W.A. Woodruff | Dec 22, 2009 3:09:32 AM

But, aren't those all hearsay problems? Why didn't someone appeal on the admission of this hearsay instead of best evidence?

Posted by: Tom Jacob | Dec 22, 2009 9:25:41 AM

FRE 602 prevents a witness who did not observe a fact, condition, or incident from adopting another person's version of what happened and relating that as his own: "A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." In Smith, the witness had personal knowledge of the contents of the writing but did not have personal knowledge of the place where the gun was made. So, if he only knows what the book "told him" he has no personal knowledge of the underlying fact. To be sure, the hearsay rule is implicated. But to clear the hearsay hurdle in this instance the only possible exceptions would have required the writing being produced, e.g. 803(5);803(6);803(8);803(17);803(18). That means you would be, ultimately, proving the contents of the writing and FRE 1002 requires the original or a duplicate, in most cases. While the hearsay, best evidence, and personal knowledge requirements are all involved here they must all be met before the evidence is admissible. Apparently the court never got to the hearsay issue because they ignored FRE 1002's requirement to produce the written "out of court statement" before determining whether an exception would have permitted its admission.

Posted by: W.A. Woodruff | Dec 23, 2009 11:15:15 AM

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