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Univ. of South Carolina School of Law

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Thursday, May 6, 2010

Safety In Numbers: Eighth Circuit Finds Best Evidence Rule Not Triggered By Inscription On Safe

Federal Rule of Evidence 1002, the Best Evidence Rule, provides 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.

In United States v. Buchanan, 2010 WL 1753346 (8th Cir. 2010), law enforcement officers testified regarding an inscription inside a safe but did not produce the safe at trial. According to the defendant, the admission of their testimony violated the Best Evidence Rule; however, the Eighth Circuit responded that courts do not have to apply the rule to chattels. I'm not sure that I agree with the court's reasoning.

In Buchanan, Ronald Andrew Buchanan was convicted of possession with the intent to distribute at least 50 grams or more of a mixture and substance containing cocaine base and possession with intent to distribute a mixture and substance containing cocaine. Before Buchanan was charged, police searched Buchanan pursuant to a search warrant and, inter alia, "discovered drug notes and a set of keys-including one key bearing the number '2010' upon it-on Buchanan's person."  

Further investigation determined that the "2010" key matched a large safe under the stairs in the basement of [a residence at] 65th Street....This safe also bore the number "2010" on it and contained within it a manual bearing the same number. The large safe also contained a lease agreement for the 65th Street residence, signed in September 2007, listing Buchanan and Traci Smith, Buchanan's girlfriend, as tenants, a photo of Buchanan, and an Iowa vehicle title for the Chevy Blazer in Buchanan's name. Officers did not seize the safe.

At trial, law enforcement officers testified regarding the inscription in the safe. After he was convicted, Buchanan appealed, claiming, inter alia, that because the inscription was a writing, the prosecution needed to produce the safe at trial or account for its nonproduction. The prosecution responded that it did not need to produce the safe because it was a chattel and thus not covered by the Best Evidence Rule.

The Eighth Circuit agreed with the prosecution, noting that in United States v. Duffy, 454 F.2d 809, 811 (5th Cir. 1972), the Fifth Circuit found that the Best Evidence Rule was not applicable to a white shirt with a laundry mark because

[t]he shirt with a laundry mark would not, under ordinary understanding, be considered a writing and would not, therefore, be covered by the "Best Evidence Rule[."] When the disputed evidence, such as the shirt in this case, is an object bearing a mark or inscription, and is, therefore, a chattel and a writing, the trial judge has discretion to treat the evidence as a chattel or as a writing....In reaching his decision, the trial judge should consider the policy-consideration behind the "Rule[."] In the instant case, the trial judge was correct in allowing testimony about the shirt without requiring the production of the shirt. Because the writing involved in this case was simple, the inscription "D-U-F [,"] there was little danger that the witness would inaccurately remember the terms of the "writing[."] Also, the terms of the "writing" were by no means central or critical to the case against Duffy. The crime charged was not possession of a certain article, where the failure to produce the article might prejudice the defense. The shirt was collateral evidence of the crime. Furthermore, it was only one piece of evidence in a substantial case against Duffy.

The Eighth Circuit applied this logic to the case before it, finding that

the district court appropriately treated the safe as chattel. The policy considerations behind the best evidence rule...are not implicated. The writing-"2010"-was simple, meaning that little danger existed that the witness would inaccurately remember the terms of the “writing” on the safe. And, as the district court noted, the likelihood of fraud was small because the government also admitted into evidence the safe's instructional manual, which was found inside the safe and also bore the number “2010.”

Moreover, as the district court explained, "the testimony regarding the inscription on the safe was only a small part of the substantial evidence presented against Buchanan."...The numeric inscription was not “critical” to the case against Buchanan; instead, the safe was merely collateral evidence of the crime.

Now, I certainly have no problem with parts of the court's ruling. Pursuant to Federal Rule of Evidence 1004(4),

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if...[t]he writing, recording, or photograph is not closely related to a controlling issue.

Therefore, there was an independent ground for finding that the inscription on the safe was not covered by the Best Evidence Rule, but this ground would apply equally to a writing that was not a chattel. The above analysis also reveals that the Eighth Circuit found that any error committed by the trial court was harmless, but, again, this analysis would apply equally to a writing that was not a chattel.

Therefore, the only ground given by the Eighth Circuit (and the Fifth Circuit) for treating a writing that is also a chattel differently from a mere writing under the Best Evidence Rule is that the former can be simple, with little danger existing that the witness would inaccurately remember it. But a mere writing can be simple as well. A mere writing can consist of just a number, as in Buchanan, or just initials, as in Duffy.

I thus don't buy the Eighth Circuit's reasoning. I do buy the reasoning of other courts, though. The most common reason that I have seen for treating chattel differently than writings under the Best Evidence Rule is that chattels are often more difficult to produce than mere writings. Obviously, it is easier for a party to bring a piece of paper to a courtroom than it is for the party to bring a safe. Thus, I can see why courts should be allowed to treat chattels differently, but not for the reasons given by the Eighth Circuit.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/05/1002-chattel--us-v-buchanan----f3d------2010-wl-1753346ca8-iowa2010.html

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