Saturday, March 5, 2011
(Not) OK Computer: Supreme Court Of Georgia Finds Computer Printout Not An Original Or Duplicate For Best Evidence Purposes
Federal 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 Act of Congress.
Meanwhile, OGCA Section 24-5-4(a) provides that
The best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for.
And, Federal Rule of Evidence 1001(3) provides, inter alia, that
If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original."
Georgia, however, has no counterpart to this portion of Federal Rule of Evidence 1001(3). Does this mean that a computer printout is not considered an "original" under Georgia's Best Evidence Rule? According to the recent opinion of the Supreme Court of Georgia in Baptiste v. State, 2011 WL 680793 (Ga. 2011), the answer is "yes."In Baptiste, Gerard George Baptiste was convicted in 2003 of the felony murder of Marcos Herrera. At a pre-trial hearing, Baptiste asked the trial court to suppress evidence obtained as a result of searches of his residence and truck. In response,
the State presented photocopies of the Clayton County warrants issued and executed for appellant's residence and for the seizure of his pickup truck. Attached to the photocopied search warrant for appellant's residence was a document identified by the Douglas County investigator as his unsigned affidavit that did not contain a completed jurat. The investigator testified that the original search warrants issued by the Clayton County judge and the officer's original signed and sworn affidavits were retained and sealed by the issuing judge who had been unsuccessful in locating the sealed packet. The investigator described the unsigned, unsworn document presented at the suppression hearing as containing information identical to that contained in the affidavit he had executed before the issuing judge in order to obtain the warrant for appellant's truck and, with the deletion of the last 6 1/4 lines, was identical to the affidavit he had executed before the issuing judge to obtain the warrant for appellant's residence. The officer testified that, while in the presence of the assistant district attorney and a Douglas County detective, he had retrieved the unsigned, unsworn document from the hard drive of the sheriff's department computer on which he had created and stored the affidavit he had sworn and subscribed before the judge who issued the search warrant for the truck.
After he was convicted, Baptiste appealed, and the Supreme Court of Georgia later found that "Georgia has not adopted a rule of evidence similar to the federal rule governing the admission of a computer printout, and the unsigned, unsworn document presented at the suppression hearing does not qualify as a 'duplicate original' under Georgia law since it was not made by the same pen stroke at the same time...or was not a copy executed at the same time as the 'original' of the document."
That said, the Georgia Supremes found that the trial court did not commit error because OGCA Section 24-5-21 provides that
If a paper shall have been lost or destroyed, proof of the fact to the court shall admit secondary evidence. The question of diligence is one for the sound discretion of the court.
Therefore, the court found that "[i]n light of the officer's testimony concerning the loss of the sealed packet containing the original search warrants and affidavits, the trial court did not abuse its discretion when it admitted secondary evidence."