Friday, May 25, 2012
Best Evidence?: 1st Circuit Asserts That Fairness Exception To Rule 1003 Only Applies In Cases Of Fraud/Manipulation
Federal Rule of Evidence 1003 provides that
A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.
So, what circumstances make it unfair to admit the duplicate? According to the recent opinion of the First Circuit in Asociacion De Periodistas De Puerto Rico v. Mueller, 2012 WL 1699915 (1st Cir. 2012), the answer is "not many."In Mueller, several journalists brought claims for damages
and injunctive relief against FBI agents, who the journalists allege used excessive force against them during the execution of a search warrant at an apartment complex in San Juan, Puerto Rico.
After the district court granted the agents' motion for summary judgment dismissing the complaint, claiming, inter alia, that the court erred by relying upon video footage of the events in question. Specifically, the plaintiffs claimed, inter alia, that the footage was inadmissible under the Best Evidence Rule because
language in an advisory committee note creates an exception for copies that leave out important material. See Fed.R.Evid. 1003 advisory committee's note....Here they say that the videos are incomplete because of the absence of footage in one video clip showing the entrance of journalists into the complex, and the absence in another clip of certain use of pepper spray.
The language in the Advisory Committee's Note is as follows:
Other reasons for requiring the original may be present when only a part of the original is reproduced and the remainder is needed for cross-examination or may disclose matters qualifying the part offered or otherwise useful to the opposing party.
But according to the First Circuit, the plaintiffs arguments did not
show that the videos are inaccurate or incomplete in the incidents that they depict or that taken together the tapes fail to include such footage of the entrance of reporters or the use of pepper spray. The exception alluded to by the plaintiffs is for extreme situations where there is reason to suspect extensive prejudicial manipulation...or fraud,... and the plaintiffs' objections about the videos do not rise to such a level.
It seems to me that the First Circuit is creating a manipulation/fraud requirement out of cloth. And it seems to me that this requirement is nonsensical. Here is the portion of my Best Evidence Rule Chapter for the eLangdell Project dealing with this exception:
The second exception contained in 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 cross-examination. Courts have consistently found that the second exception contained in Rule 1003 applies when duplicates fail to fully reproduce important or critical parts of an original document or recording. Such was the case in Amoco Production Co. v. United States, 619 F.2d 1383 (10th Cir. 1980), in which the Tenth Circuit found that the district court properly excluded the photocopy of a deed that did not reproduce the reservation clause.
There was no allegation in Amoco Production Co. that the party seeking to introduce the photocopy of the deed engaged in manipulation or fraud. Instead, it was accidental that the reservation clause was not photocopied. Of course, that didn't matter because the language of Federal Rule of Evidence 1003 focuses on fairness, not fraud. Why should it matter that the proponent of a photocopy of a deed, letter, contract, etc. fails to reproduce critical portions of the subject writing in good or bad faith. If the excluded portions would make it unfait to admit the photocopy, the court should exclude it, regardless of the mental state of the proponent.
So, should the district court have excluded the videos? I don't know. What I do know is that the journalists were claiming excessive force and that the copies of the videos did not reproduce the officers using pepper spray. It seems to me that the pepper spray portion might have been critical to the journalists' claims, but it is tough to say without seeing the videos.