Sunday, February 7, 2010
Open Content: Court Of Appeals Of North Carolina Seemingly Misconstrues Best Evidence Rule In Child Abuse Appeal
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 statute.
What this means is that this "Best Evidence Rule" is inapplicable when a party seeks to present testimony connected to a writing, recording, or photograph but is not seeking to prove the contents of the writing, recording, or photograph. For instance, if a defendant is charged with robbing a bank in the Bronx at 2:00 p.m. on February 5, 2010, he could testify that he was mailing a letter at a post office in Brooklyn at 2:00 p.m. on February 5, 2010. In that case, he would be presenting testimony connected to a writing -- the letter -- but he would not be seeking to prove the contents of the letter. The letter could be a love letter, a cable bill, or an employment application, and it wouldn't matter. The man would simply be seeking to prove that he was in Brooklyn at the time of the robbery in the Bronx. This is a point that the Court of Appeals of North Carolina seemingly misunderstood in its recent opinion in State v. Haas, 2010 348260 (N.C. 2010).
In Haas, Brandi Ann Haas was convicted of felony child abuse based upon acts she allegedly committed against her son, J.P.H. In 2005, Haas and her boyfriend testified concerning the incident giving rise to that conviction at a prior juvenile court proceeding.
This testimony was recorded using four-track audio equipment. A court reporter subsequently transcribed the hearing.
At Haas' subsequent criminal trial, the prosecution presented into evidence the juvenile court transcript. After she was convicted, Haas' sole argument on appeal was that the trial court erred in admitting the transcript of prior testimony at the juvenile hearing when the original recording was available. The Court of Appeals of North Carolina disagreed, finding that
it is well-settled that Rule 1002 applies only when the content of a writing, recording, or photograph is in question. State v. Martinez....In Martinez, the defendant argued the trial court had violated Rule 1002 by allowing a witness to testify regarding the contents of a recorded telephone conversation....This Court held that the admission of the testimonial summary of the recorded conversation did not violate Rule 1002 because the contents of the recording were not being disputed by the defendant and the defendant never moved at any time to have the tape played for the jury....In the instant case, defendant does not contend that there is any question as to the accuracy of the transcript submitted to the jury at trial and concedes in her brief that the recording of the juvenile hearing was authentic: "There is no reason at all that the original recording could not have been played for the jury. It was available and both parties clearly considered it authentic (the Defendant argued for playing it; the State relied upon it for preparation of its 'transcript.')" (Emphasis added). Defendant bases her argument solely on the existence of the recording and alleges it was error to admit the transcript. Because the contents of the recording of defendant's prior testimony in the juvenile hearing are not in question, Rule 1002 is not applicable.
Now, in Martinez, the court did mention the fact that Martinez did not dispute the contents of the recorded conversation. But the court also mentioned that (a) Martinez did not object to the playing of the recorded conversation and thus did not preserve the issue for appeal, and (b) a governmental agent heard the original conversation and testified regarding it at trial. Of these two points, the latter was more important because it is well established that the Best Evidence Rule does not apply when a witness has independent personal knowledge of the writing, recording, or photograph.
Conversely, in Haas, Haas did object to the admission of the transcript, and there is no indication that anyone with independent personal knowledge of the testimony at the juvenile court proceeding testified regarding that testimony. And, contrary to the court's conclusion, the Best Evidence Rule is perfectly applicable even when the contents of a writing, recording, or photograph are not in question; the Rule is only applicable when a party is not seeking to prove the contents of a writing, recording, or photograph.