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Monday, July 18, 2011

Attention, Wal-Mart Shoppers: Court Of Appeals Of Texas Seemingly Botches Best Evidence Analysis

Like its federal counterpart, Texas Rule 1002, Texas' Best Evidence Rule, provides tha

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 law.

But, like its federal counterpart, Texas Rule of Evidence 1003 provides that

A duplicate is admissible to the same extent as an original unless (1) a question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

In its recent opinion in Massey v. State, 2011 WL 2698608 (Tex.App.-Dallas 2011), the Court of Appeals of Texas, found that a videotape cobbled together from numerous surveillance cameras at Wal–Mart was properly admitted under Rule 1003, but was this the correct decision?

In Massey, the evidence presented at trial revealed that Randall Massey

went to a Wal–Mart store in Murphy, Texas and filled his shopping cart with items valued at $186.90. [Massey] attracted the attention of the store's loss prevention officer, Wayman Gilley, because he was stacking items in his cart in a "fort style," by placing large bulk around the edges of the cart and placing smaller items in the center. Gilley watched Massey in the produce area at the front of the store. Two store employees were nearby. When the employees left the area, Massey pushed his basket out the door passed [sic] the last point of sale. Gilley then stopped Massey, who explained that a store associate told him that drink vending machines were located outside and he had gone out the doors with his cart to buy a drink. Gilley, however, testified several drink machines were located inside the store, specifically around the cashiers' lanes at the front of the store. Gilley also said shoppers regularly drank beverages they picked up inside the store and then paid for at checkout.

Gilley called the police and told Massey that if he paid for the items in the cart, Wal–Mart would only press charges against him for criminal trespass, not theft. Massey attempted to pay for the items with a corporate credit card, but the card was rejected at the register. Wal–Mart refused to accept a check linked to the same account as the corporate card. Massey told the police he did not have any money. When they arrested him for theft, they found $11 in cash and at least seven credit cards in his wallet. After hearing all the evidence, the jury convicted [Massey] of theft.

At trial, the prosecution also introduced

a videotape put together by Gilley from Wal–Mart's numerous surveillance cameras. Gilley testified Wal–Mart used a "multiplexer" surveillance system, which recorded video from cameras throughout the store. Gilley said the store had four videocassette recorders; on each VCR was a "multiplex," and each multiplex had sixteen camera angles. To get a useable tape, Gilley explained he had to "dub" from the multiplexer system to a regular videotape by selecting the particular cameras and times to be dubbed....

The seven-minute tape dubbed by Gilley depicted [Massey] in the produce area before walking out the doors with a cart of groceries and coming back into the store with Gilley. Gilley said the tape is "boiled down" to angles relevant to the case

After he was convicted, Massey appealed, claiming, inter alia, that

the trial court abused its discretion in admitting the video, over objection, because it was "an incomplete video of the time he was in the store." He assert[ed] the video does not portray his "contact or possible conversation" with a Wal–Mart employee in the produce section shortly before he left the store. He contends this "absence of critical evidence" raises a question about the authenticity of the video. As support for his argument, he relie[d] solely upon Texas Rule of Evidence 1003.

The Court of Appeals of Texas disagreed, concluding that

Rule 1003 authorizes the use of copies to the same extent as an original unless one questions the authenticity of the original or demonstrates it would be unfair to admit the duplicate....Here, [Massey] is not complaining about the authenticity of the original recording; he is complaining that the videotape admitted has been "edited" from its original content. Thus, rule 1003 does not apply. The evidence at trial showed that the only videotape in the State's possession was the one shown at trial; the original recording was in Wal–Mart's possession. The record does not show appellant made any effort to obtain the original recording from Wal–Mart. Under these circumstances, we cannot say [Massey] has shown any error in the admission of the videotape. See TEX.R.EVID. 106 (providing that where only a portion of a recording is admitted, the other party may introduce "any other part...which ought in fairness to be considered contemporaneously with it").

Now, the Court of Appeals of Texas was certainly correct that Texas Rule of Evidence 1003(1) did not apply. But what about Texas Rule of Evidence 1003(2)? As noted in Colin Miller, Even Better than the Real Thing: How Courts Have Been Anything But Liberal in Finding Genuine Questions Raised as to the Authenticity of Originals Under Rule 1003, 68 Md. L. Rev. 160, 172 (2008),

The exception contained in subsection (2) of Rule 1003 applies where only part of an original document or recording is reproduced in a duplicate, and the remainder is needed for some purpose, such as cross-examination. Courts have consistently found that the exception contained in Rule 1003(2) applies when duplicates fail to fully reproduce important or critical parts of an original document or recording.  

Isn't this exactly what Massey was claiming? His argument was that he went outside because a store associate told him that the drink vending machines were located outside and that the original surveillance videos would have shown this interaction. Now, I admit that (the Court of Appeals' characterization of) Massey's argument under Texas Rule of Evidence 1003 was unclear, but it seems clear to me that Massey raised a viable claim that the court unfairly turned aside.

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/07/1003-massey-v-statenot-reported-in-sw3d-2011-wl-2698608texapp-dallas2011.html

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Comments

It seems to me that the Texas Court improperly places the burden of producing the unedited tape on the defense. It alludes to notions underlying Rule 1004(d)(Original under the control of the opposing pary), which clearly does not apply.
That exception does not say that when the original is not in the possession of the offering party, a duplicate may be admitted if the opponent could get the original and fails to even attempt to do. The opponent must try to get the original before he can legitimately object to the edited version. But, clearly under the Rule, the burden of showing that the original cannot be obtained is on the offering party, here, the prosecution, not the defense.

Posted by: Fred Moss | Jul 19, 2011 8:42:55 AM

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