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

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Saturday, July 3, 2010

Faith No More: Court Of Appeals Of Ohio Affirms Best Evidence Ruling Based On Lack Of Bad Faith By Police

Like its federal counterpart, Ohio Rule of Evidence 1002 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 statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio.

But also like its federal counterpart, Ohio Rule of Evidence 1004(1), Ohio's Best Evidence Rule, provides that

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, as the recent opinion of the Court of Appeals of Ohio, Ninth District, in State v. Moultry, 2010 WL 2622449 (Ohio App. 9 Dist. 2010), makes clear, this latter rule explains why evidence is almost never excluded under the Best Evidence Rule.

In Moultry,

On June 25, 2009, [Kevin] Moultry was indicted on one count of robbery...and one count of petty theft....

On July 16, 2009, the trial court issued a journal entry permitting defense counsel to view the surveillance video tape of the incidents at the store involved in the case. Apparently defense counsel was unable to view the tape because the police returned it to the shopkeeper who allegedly accidentally taped over the alleged robbery. Prior to trial, Moultry moved to exclude any testimony by law enforcement personnel who saw the tape prior to its destruction regarding the images on the tape. The trial court preliminarily denied the motion upon finding that there was no evidence of bad faith on the part of the police in returning the tape to the shopkeeper.

At the conclusion of trial, the jury found Moultry guilty of robbery, but not guilty of theft.

After he was convicted, Moultry appealed, claiming, inter alia, that the trial court should have excluded any testimony about the contents of the surveillance video tape under Ohio Rule of Evidence 1002.  The Court of Appeals of Ohio, Ninth District disagreed, finding that 

Officer Pastor testified that he viewed the recording of the June 1, 2009 incident while the unit was still in the store. He testified that he saw a subject in the recording who was carrying merchandise while struggling with a store employee, ultimately knocking her off balance. The victim-employee, Saadieh Gheith, testified that she also watched the recording of the incident and saw Moultry's face in it....

Officer Pastor testified that the store owner, Mostafa Gheith, insisted upon the return of the recording unit because the store was located in a "rough" neighborhood and the store had no security. The officer testified that he attempted to dissuade Mr. Gheith to no avail. Officer Pastor testified that Mr. Gheith had a property receipt for the recording unit, that it was his property, and that it is not a violation of police procedure to return evidence if the police cannot do anything with that evidence and the victim-owner requests its return. He emphasized that the police were unable to access and play the recording at the station, so that it could no longer be considered evidence. Officer Pastor testified that he followed up with Mr. Gheith, asking whether he was able to make a copy of the recorded June 1, 2009 incident. Mostafa Gheith confirmed that he requested the return of the recording unit to his store. He testified that the unit records on a loop for 30 days, and that he apparently recorded over the June 1, 2009 incident when he reinstalled the unit after its return.

Based upon this testimony, the court found that the tape was not destroyed in bad faith, meaning that the contents of the video could be proven through other evidence such as testimony under Ohio Rule of Evidence 1004(1). Accordingly, the appellate court affirmed Moultry's conviction.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/07/1002--state-v-moultryslip-copy-2010-wl-2622449ohio-app-9-dist2010.html

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