EvidenceProf Blog

Pedestrian Opinion: Judge Doubts That Girls Could Have Walked Less Than 1/2 As Fast As Record Racewalker

Today at the Olympics is the men's 20 km racewalk. My wife and I always get a kick out of the sport of racewalking for a few reasons. First, how much respect should be given to a a racewalker? People always talk about the lack of respect given to the lonesome kicker on a football team. Well, aren't racewalkers even more the red headed stepchildren of the track world? Great, so you can walk really fast. But everyone else out here is running. This leads to the second point, which is the number of people disqualified during Olympic racewalks for, well, running.

The are 2 basic rules to racewalking:

The first dictates that the athlete's back toe cannot leave the ground until the heel of the front foot has touched. Violation of this rule is known as loss of contact. The second rule requires that the supporting leg must straighten from the point of contact with the ground and remain straightened until the body passes directly over it.

So, how is this enforced? Well, there are judges along the course

submitting "red cards" for violations results in disqualification. There is a scoreboard placed on the course so competitors can see their violation status. If the third violation is received, the chief judge removes the competitor from the course by showing a red paddle.

This is sort of the inverse of the Richard Bachman/Stephen King novella, "The Long Walk," in which walkers in a futuristic race were shot and killed if they fell below a certain speed three times. Presumably, by the time of "The Long Walk," society had developed technology to detect the speed of the walkers. But, as things stand now, the 2 rules of racewalking are enforced by the human eye, which creates controversy at today's high speeds.

Third, we have the origins of racewalking.

The sport -- currently a Summer Olympics game -- developed from a 19th century form of competitive walking called "Pedestrianism" which was popular on the British Isles. 

The sport was especially popular among the working class who would wager on competitors racing various distances, with some endurance races reaching lengths of 1,000 miles.

Okay, so the origins of your sport are from PedestrianismI? How, well, pedestrian. In high school I ran cross-country and track and always wanted to compete in the Steeplechase because I'm 6'4 and liked longer distances. Unfortunately, the Steeplechase wasn't run in my district (probably liability issues). But, you know what? The Steeplechase has a pretty cool origin story. When your origin story is Pedestrianism, your sport is not cool at all. Even the one case that I could find making reference to racewalking Pact v. Pact, 332 N.Y.S.2d 240 (N.Y.Fam.Ct. 1972), came up pretty lame.

In Pact, a mother requested termination of ar father's visitation rights because of his negative influence, deviousness and deliberate attempts to sabotage her planning for their children. As explained by the court,

Starting with King Solomon's famous decision in the first recorded custody case and down through the ages experienced jurists will unreservedly agree that child custody proceedings are the most trying, vexatious and complex of all legal proceedings. The instant matter is no exception.

One of the main questions addressed by the court was whether the father or someone acting on his behalf assisted the couple's children in absconding from their mother's house in search for refuge with their father. According to the court,

The facts as disclosed in the instant hearing are not too dissimilar to those presented to the court last year except for two abortive attempts by the children to abscond from their mother's custody in search for refuge with their father. In March, 1971 and again on January 12, 1972 Debra, now age 12, and her sister Allison, two and one half years her junior, were picked up by police officers at the very same location in Old Westbury, approximately ten miles distant from their home in Queens.  

The children were confidentially interviewed by the Court in chambers on consent of the parties and on the authority of Lincoln v. Lincoln, 24 N.Y.2d 270, 299 N.Y.S.2d 842, 247 N.E.2d 659 at which time they refused any suggestion from the court that perhaps their fleeing escapade was aided and abetted by their father or some other person acting on his behalf. They insisted that on January 12th they left their school in Queens at 3 o'clock in the afternoon and walked for two and one-half hours until they were spotted by police officers in Old Westbury. By no stretch of the imagination is this court convinced that two girls, 12 and 10 years of age respectively, loaded with school books and using umbrellas part of the time to shield them from the falling rain, hiked ten miles in the time claimed. A search of American track records discloses that the record for that distance in race walking is 1 hour, 13 minutes, 17.6 seconds held by Robert O. Laird of Walnut, California who accomplished the feat on May 16, 1964.

So, why do I regard this conclusion as lame? Ok, so the girls went less than half as fast as the fastest American racewalker? Sure, that sounds unlikely but nearly the slam dunk that the judge intended it to be. The girls traveled 10 miles in 2.5 hours. So, they claimed to be walking at a pace of 15 minutes a mile or 4 miles per hour. According to Livestrong, "[f]or most healthy individuals, walking at a 4-mph pace is a good way to maintain aerobic endurance, build muscle strength in the lower extremities and manage weight." In the aforementioned  "The Long Walk," 4 miles per hour was the minimum speed that walkers had to maintain.

These last 2 considerations get me to my second point, which is that I'm sure that anyone walking briskly are not following the rules of racewalking. And that's why the judge's comparison to racewalking makes no sense. Sure, the girls had backpacks. And sure, it was raining. But were their back toes not leaving the ground until the heel of their front feet had touched? And were they straightened their supporting legs? Doubtful. And what this means is that any comparison to racewalking was nonsensical.

-CM

Total Recall, Philip K. Dick, The Terminator, Robotic Heads & PreCrime

Today marks the release of "Total Recall," the remake of the 1990 movie, with Len Wiseman stepping in for Paul Verhoeven as director and Colin Farrell taking over for Arnold Schwarzenegger as Douglas Quaid/Hauser. Both of these movies are based (loosely, at least in the case of the 1990 version) on Philip K. Dick's short story, "We Can Remember It For You Wholesale." Dick has had a huge impact on the silver screen, with many of his works being adapated into amazing movies, such as "Blade Runner," "Minority Report," and "A Scanner Darkly."

Dick has also had a sizeable impact on our court system. In Goldberg v. Cameron, 787 F.Supp.2d 1013 (N.D. Cal. 2011), Neil Goldberg sued James Cameron and others for copyright infringement, claiming "that a script and soundtrack he sent to New World Pictures in or around 1979 were misappropriated...and incorporated into the popular action films "The Terminator"...and "Terminator 2: Judgment Day" The Northern District of California disagreed, finding, inter alia, that

The most important similarity between the works involves an unprotectable element: the general idea of a futuristic conflict between man and machines, specifically computers and robots. That theme is a commonplace in science fiction. Indeed, the notion of intelligent machines evolving into conscious beings at war with human beings was originally developed in Mary Shelley's classic Frankenstein (1818). Other portrayals of artificial intelligence at war with humans include Stanley Kubrick and Arthur C. Clarke's 2001: A Space Odyssey (1968), the move Colossus: The Forbin Project (1970), and Philip K. Dick's story "Second Variety" (1952), a post-nuclear apocalypse story in which the defeated forces turn to a guerrilla warfare conducted by self-reproducing machines programmed to destroy anything that lives. (emphasis added).

And then there's the amusing (but not for the plaintiff) case, Hanson v. America West Airlines, 544 F.Supp.2d 1038 (C.D.Cal. 2008). According to the court in Hanson,  

Plaintiff David Hanson...has lost his head. More specifically, Plaintiff has lost an artistically and scientifically valuable robotic head modeled after famous science fiction author Philip K. Dick...Dick's well-known body of work has resulted in movies-such as Total Recall, Blade Runner, Minority Report, and A Scanner Darkly, and a large group of admirers has grown following his death in Orange County, California, in 1982. His stories have questioned whether robots can be human (see, e.g., Do Androids Dream of Electric Sheep? (1968)), so it seems appropriate that Plaintiff reincarnated Dick as a robot which included the Head, valued at around $750,000.

Plaintiff lost his Head on one of Defendant's planes when flying from Texas to San Francisco with a connection in Las Vegas....Plaintiff brought the Head onto the plane in a carry-on duffel bag and stored it in the overhead bin. Plaintiff fell asleep during the flight from Texas to Las Vegas, and woke up when the plane arrived in Las Vegas....On waking, Plaintiff immediately left the plane to catch his connecting flight to San Francisco....Perhaps because he had just woken up, Plaintiff lacked the total recall to remember to retrieve the Head from the overhead bin.

According to Plaintiff, as soon as he got to San Francisco, he went to the baggage counter, spoke to Defendant's employee, Leanne Miller..., and informed her of the problem....Miller told him that the airplane with his Head was in flight, and could not be checked until it landed in Southern California....Plaintiff offered to fly to Southern California to regain his Head, but Miller told him not to do that....According to Plaintiff, he informed Miller of the importance and value of the Head, and she replied that all efforts would be made to recover the Head and that it would receive "special treatment."

Plaintiff asserts that about 45 minutes later, Miller called him with the good news that the Head had been found in Orange County....Plaintiff "remained willing" to go retrieve his Head, but Miller replied that it would be sent to San Francisco....According to Plaintiff, Miller then informed him of the special security procedures that would be taken to protect and deliver the Head....Plaintiff told Miller that Plaintiff's friend Craig Grossman would be at the airport to pick up the Head....Grossman waited for the Head at the San Francisco airport, but it never arrived and has not been found since....While hearts may be left in San Francisco, heads apparently are left in Orange County, or are simply lost or stolen.

Hanson thus sued America West for conversion, negligence, and involuntary bailment, but the Central District of California granted the defendant's motion for summary judgment, concluding that 

Philip K. Dick and other science fiction luminaries have often explored whether robots might eventually evolve to exercise freedom of choice. See, e.g., 2001: A Space Odyssey (a HAL 9000 exercises his freedom of choice to make some bad decisions). But there is no doubt that humans have the freedom of choice to bind themselves in mutually advantageous contractual relationships. When Plaintiff chose to enter the Contract of Carriage with Defendant he agreed, among other things, to limit Defendant's liability for lost baggage. Failing to show that he is entitled to relief from that agreement, Plaintiff is bound by the terms of that contract, which bars his state law claims.

The Court must GRANT Defendant's Motion. But it does so hoping that the android head of Mr. Dick is someday found, perhaps in an Elysian field of Orange County, Dick's homeland, choosing to dream of electric sheep. 

And then there's In re Detention of Danforth, 264 P.3d 783 (Wash. 2011).

In Danforth, 

In October 2006, Robert Danforth went to the King County Sheriff's Office, described his history of sex offenses, and made explicit descriptions of his plans to molest boys and have intercourse with a child. He repeatedly said that he would act on his plan if he was not committed as a sex offender.

In response, the King County prosecuting attorney filed a petition to civilly commit Danforth, who had previously committed sexual offenses, as a sexually aggressive predator pursuant to RCW 71.09.030(5). Thereafter, Danforth moved for summary judgment, arguing that his actions did not constitute a "recent overt act" to qualify him for commitment. After that motion was denied, Danforth and the prosecutor agreed to a stipulation, which stated, inter alia, that

Respondent has committed a recent overt act as that term is defined in RCW 71.09.020, namely through statements Mr. Danforth made to the [MHPs] on October 25, 2006 [and] to the King County Sheriff on October 25, 2006 and October 26, 2006. 

When Danforth thereafter appealed, the Supreme Court of Washington affirmed, finding that "A reasonable jury could find that Danforth committed a threat when he gave explicit descriptions of his plans to molest boys at a bus stop and have intercourse with a child at a mall video arcade." Meanwhile Justice Chambers concurred in part and dissented in part, finding that "I completely agree with the dissent on key principles of law, but because I would hold the petitioner to his stipulation, I concur with the lead opinion in result."

So, what did the dissent say? Well, according to the dissent,

In the movie Minority Report (Twentieth Century Fox et al. 2002), based on the short story of the same name by Philip K. Dick, “PreCrime” police act on premonitions of psychics to arrest perpetrators before they commit their crimes. Fortunately, we will never have PreCrime police so long as our courts require the State to confine state action to due process of law, requiring a present showing of dangerousness before a suspect can be civilly committed for crimes not yet committed.

We recognize that there is a risk that Danforth might perpetrate a sexually violent crime. But Danforth is not alone in presenting such a risk. We cannot lock up every person who presents a risk of future violent crime. Indeed, we recoil from the thought of confining innocent men and women simply because a knowledgeable objective observer is reasonably apprehensive that man or woman will commit a crime. The State failed to show that Robert Danforth committed any recent act; to the contrary, Danforth sought help to avoid committing any crime. We should assist Danforth's efforts to control his urges instead of imprisoning him. 

-CM

EDNY: Contracts Are Not Closely Related To A Controlling Issue In A Breach Of Contract Case

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

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

Federal Rule of Evidence 1004(d), however, provides that

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:...

(d) the writing, recording, or photograph is not closely related to a controlling issue.

Rule 1004(d) is a rarely applied Rule for obvious reasons, and it didn't apply in Seidel v. Hoffman Floor Covering Corp., 2012 WL 3064153 (E.D.N.Y. 2012). But, as the court noted, a judge did rely upon the Rule in another recent opinion, with the judge himself recognizing that his reliance was "strange."

In Seidel,

Plaintiff Robert Seidel sued Defendants Hoffman Floor Covering Corp. ("HFC") and Andrew Hoffman (with HFC, "Defendants") for underpayment of wages and supplemental benefits. On July 29, 2011, the Court granted Plaintiff's request to withdraw his Fair Labor Standards Act and New York Labor Law claims with prejudice....Plaintiff also requested permission to withdraw his breach of contract claim without prejudice so that he could re-file it in state court; the Court denied this request....Plaintiff's only outstanding claim [wa]s the common law claim under New York law for underpayment of prevailing wages and supplemental benefits. 

As the Eastern District of New York noted, 

The principal dispute in th[e] case is whether Plaintiff was entitled to be paid the proper prevailing wage for time he spent working on "public works" projects pursuant to contracts that HFC allegedly made with various public entities.

The defendants moved for summary judgment, claiming that the court could not resolve this dispute because the plaintiff failed to produce a contract with a prevailing wage clause. The Eastern District of New York agreed and then noted that

In awarding Defendants summary judgment, the Court notes that Magistrate Judge Steven M. Gold recently considered a very similar issue in Ramos v. SimplexGrinnell LP, 796 F.Supp.2d 346 (E.D.N .Y.2011). In Ramos, which also involved third-party breach of contract prevailing wage claims, the court addressed whether the plaintiffs could survive summary judgment notwithstanding their inability to offer the labor contracts into evidence....Relying on Section 220 and Federal Rule of Evidence 1004, Judge Gold concluded that the plaintiffs could prevail without the contracts and that they could prove the contents of the contracts through other means. The thorough decision relies on, among other things, the fact that Section 220 requires all public works contracts to contain prevailing wages clauses and that Rule 1004 permits a party to use secondary evidence to prove the contents of a writing where the writing "is not closely related to a controlling issue," FED.R.EVID. 1004(d)....Recognizing that it seemed strange to hold that the existence of a contract is merely collateral to a breach of contract claim, Judge Gold thought it was relevant that there was no dispute that the alleged contracts were, in fact, "public works" contracts or that the defendant was required to pay prevailing wages for at least some of the work done on these projects....Thus Ramos and this case are significantly different. Here, these issues are disputed, and they are precisely what the contracts would resolve if they were offered.

Yes, indeed, Ramos is strange. As noted, "Ramos...involved third-party breach of contract prevailing wage claims..." And sure, there was no dispute that the subject contracts were "public works" contracts, but that's not the issue. A controlling issue in a breach of contract case is the content of the subject contracts. Therefore, the subject contracts in Ramos were "closely related to a controlling issue, meaning that Federal Rule of Evidence 1004(d) should have been deemed inapplicable.

-CM

History Lesson: Commonwealth Court Of Pennsylvania Opinion Digs Into Origins Of Present Sense Impression Exception

Federal Rule of Evidence 803(1) provides an exception to the rule against hearsay for

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

In Bell Beverage v. Unemployment Compensation Bd. of Review, 2012 WL 3030285 (Pa.Comwlth. 2012), the Commonwealth Court of Pennsylvania found that statements constituted present sense impressions but, more importantly, gave a nice history of Rule 803(1).

In Bell Beverage, the court found that statements qualified as present sense impressions "because they were contemporaneously made as the event was unfolding." The interesting part of Bell Beverage, though, was its citation to its prior opinion in Municipality of Bethel Park v. Workmen's Compensation Appeal Board (Willman), 161 Pa.Cmwlth.274, 636 A.2d 1254, 1258 (Pa.Cmwlth.1994).

As the Bell Beverage court noted, in Bethel Park,

In discussing the history of this exception, the Court noted that the present sense impression exception was slow in developing from the time the exception was first espoused by Professor James Thayer in 1881: 

Our Supreme Court first employed the exception in Commonwealth v. Coleman, 458 Pa. 112, 326 A.2d 387 (1974), a plurality opinion which relied on [an article by Edmund] Morgan and Federal Rule of Evidence 803(1) for the proposition that there should be a hearsay exception for declarations concerning non-exciting events either made contemporaneously or immediately after the event is perceived. In Coleman, a murder victim's mother testified to the contents of a telephone conversation she had with the victim in which the victim indicated that the appellant was going to disconnect the telephone and kill her. The plurality adopted the Morgan rational[e] that the assured reliability of a statement comes from it being made without time for retrospective deliberation and found that the conversation was a contemporaneous account of the event taking place. However, without stating that anything other than this contemporaneousness was required, the Court went on to note that the appellant's admission that he had argued with the deceased and the mother's hearing his voice in the background corroborated the hearsay declaration.  

The exception was not officially adopted by the Supreme Court until its decision in Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986), cert denied, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987), when, citing Coleman, the Court held that a description of a non-exciting event made either during the event or immediately thereafter was to be admissible under the present sense impression exception. There, the Court made no mention of whether there was any corroboration to the statement and relied solely on its contemporaneousness....  

We believe that in Peterkin, our Supreme Court adopted the rational[e] that contemporaneousness alone insures reliability sufficient to counterbalance a statement's hearsay nature. Accordingly, whether a statement comes within the present sense impression exception depends solely on whether it was made contemporaneously with the event described and there is no requirement of corroborating evidence.

-CM

Unlawful Entry: 8th Circuit Finds 2 References To Defendant Being Illegal Alien Don't Require Reversal

In United States v. Sanchez-Garcia, 2012 WL 2913255 (8th Cir. 2012), no less than two witnesses for the prosecution improperly made reference to the fact that the defendant was an illegal alien. So, why didn't the Eighth Circuit reverse his conviction?

In  Sanchez-Garcia, Torrance Bunch and Fernando Sanchez–Garcia were each convicted by a jury of conspiracy to possess with intent to distribute 500 grams or more of methamphetamine. After he was convicted, Sanchez–Garcia appealed, claiming, inter alia, that two witnesses for the prosecution improperly made reference to the fact that he was an illegal alien.

Specifically, he first pointed to the testimony of Miguel Hugo Munoz–Gonzales, one of Bunch's methamphetamine suppliers. When asked by the prosecutor if he had any information about Sanchez–Garcia's involvement with Bunch in the distribution of methamphetamine, Munoz–Gonzales responded as follows: 

I asked [Sanchez–Garcia] where he was from—he told me from Mexico, Puebla, so we were just talking, and then I asked him about he had been in the newspaper, that I had seen him in the newspaper. I asked him what had happened, and he told me that it was a mistake, that he was leaving the—that he was only here for a re-entry charge.

The district court denied Sanchez-Garcia's motion for a mistrial based upon this testimony, and the Eighth Circuit agree, finding that

The remark by Munoz–Gonzales was plainly unsolicited. It was nonresponsive to the government's reasonable line of questioning about Sanchez–Garcia's involvement with Bunch in methamphetamine distribution. Sanchez–Garcia declined a limiting instruction and deliberately chose to withhold a contemporaneous objection so as to avoid drawing attention to the statement. There is no evidence of bad faith by the government, and the statement was only a small part of the evidence against Sanchez-Garcia.

Second, Sanchez-Garcia pointed

to a statement from witness Ann Marie Porta on redirect examination. On cross-examination, Sanchez–Garcia's counsel impeached Porta by eliciting testimony that she sustained a prior conviction for fleeing police. On redirect, the prosecutor asked Porta what had happened that led to the conviction and who had been with her at the time of the incident. In response, Porta testified that she was pulled over for speeding, "[a]nd Fernando [Sanchez–Garcia] was in the car with me and he is illegal, so we decided to take off." The district court immediately directed the jury to disregard the statement. Sanchez–Garcia renewed his motion for a mistrial, and the district court again denied the motion.

The Eighth Circuit concluded that Porta's testimony was

more problematic, because the remark was solicited by the prosecutor. The rules of evidence permitted Sanchez–Garcia to impeach Porta with a prior felony conviction,...and it is questionable whether the circumstances of the offense, including Sanchez–Garcia's involvement and his immigration status, were relevant to rehabilitating Porta's credibility.....But the district court acted promptly to strike the portion of Porta's testimony concerning immigration status, and the comment must be considered in the context of the entire trial. 

And, according to the Eighth Circuit, the context was that there was substantial evidence of Sanchez-Garcia's guilt, which prompted it to conclude that the district court did not err.

-CM

Rule 609(b): Probation Edition: Middle District Of Florida Implies Probation Is "Confinement"

Federal Rule of Evidence 609(b) states that

This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

So, what constitutes "confinement" for Rule 609(b)? This was an issue that the United States District Court for the Middle District of Florida did not need to address in its recent opinion in United States v. Sararo, 2012 WL 3041182 (M.D.Fla. 2012). But that didn't stop the court from implying that a period of probation constituted "confinement" for Rule 609(b) purposes.

In Sararo, the government filed a motion in limine before the trial of Alfredo J. Sararo, III, seeking to preclude him from impeaching Michael Meehan, a witness for the prosecution. Meehan was convicted in 1993 of conspiracy to distribute methamphetamine and money laundering and received a sentence of five years probation. In deciding whether to grant the motion, the court cited to Rule 609(b) and found that

Assuming a term of probation is "confinement" within the meaning of the Rule, more than ten years has passed since Meehan's completion of five years probation in approximately 1998.

Accordingly, the court granted the government's motion, finding that Sararo had failed to prove that the probative value of the convictions substantially outweighed their prejudicial effect.

I'm not sure what import to give to the court's statement on probation as "confinement." Was the court simply saying that even if probation is confinement, Meehan's convictions were still more than ten years' old? Or was the court implying that probation does constitute "confinement" for Rule 609(b) purposes? I don't know, but the issue already could have been resolved when the Eleventh Circuit recently should have, but did not, address the issue.

-CM

Picture Perfect: Court Of Appeals Of South Carolina Finds Disk Created From Motion-Activated Camera Satisfied Best Evidence Rule

Similar to its federal counterpart, South Carolina 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.

And, similar to its federal counterpart, South Carolina Rule of Evidence 1001(3) provides that

An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. 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".

So, let's say that the victim places a motion-activated camera on his refrigerator, the camera takes photographs that allegedly depict the defendant/burglar, the victim uploads these photographs to his computer and the downloads them onto a disk. If the prosecution presents this disk at trial, has it satisfied South Carolina Rule of Evidence 1002, the Best Evidence Rule? According to the recent opinion of the Court of Appeals of South Carolina in State v. Mitchell, 3025099 (S.C.App. 2012), the answer is "yes."

In Mitchell, the facts were as stated above. Specifically,

 

In the early morning of October 28, 2008, Stephen Potts returned to his home in Newberry County and discovered someone had broken into his home during his absence. After reviewing a motion-activated deer camera that had been placed on top of his refrigerator, Potts saw photographs of a man in his kitchen. A police officer subsequently identified the man in the photographs as [Bennie] Mitchell.

In January 2009, the Newberry County Grand Jury (Grand Jury) indicted Mitchell on one count of first-degree burglary, one count of possession of burglary tools, and one count of enhancement of larceny. In February 2010, the Grand Jury also indicted Mitchell on one count of petit larceny.

 

At trial,

Mitchell objected to the admission of a disk containing the photographs from the deer camera, arguing it was not the "original" as required by the South Carolina Rules of Evidence and maintaining there was a genuine issue with the original's authenticity. Potts testified during the in camera hearing that he had possession of the deer camera from the time he returned home on the night of the alleged incident until he took it to his business and downloaded the data onto a laptop. He identified the photographs on the disk as the ones he downloaded directly from the camera. Potts stated the police officer viewed the photographs on his personal laptop at his home on October 28 but that laptop could not download the photographs to print them out. He then took the camera to the police station, but the police station was not able to download and print the photographs either. At that point, Potts took the deer camera back to his business where he downloaded the photographs and copied them onto a disk. The State argued that the deer camera photographs were meant to be downloaded and then printed out. It then analogized the deer camera to a regular film camera because when one takes a picture with a regular film camera, the original is on the film and then the person can get them developed to produce a copy of what came from the original. Thus, the State maintained the photographs fell under the definition of an original.

Thereafter,

Potts admitted the pictures had a timestamp of 3:00 a.m., even though he testified he returned home from work around 1:00 or 1:30 a .m. He stated the clock was wrong on the deer camera because he had just set it up and had not properly programmed the clock feature yet.

The trial court thus overruled Mitchell's objection, "finding the photographs on the disk were data stored in a computer put in a format readable by sight," making them "originals" under South Carolina Rule of Evidence 1001(3).

After he was convicted, Mitchell moved for a new trial. After his motion was denied, he appealed, claiming, inter alia, that the trial court's Best Evidence ruling was erroneous. The Court of Appeals of South Carolina disagreed, finding that

the photographs from the disk were originals pursuant to Rule 1001, SCRE. Rule 1001(3), SCRE ("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'."). A digital camera was used, and the photographs from the disk were testified to as being the same photographs that were on the deer camera on October 28, 2008. Mitchell had the opportunity to cross-examine Potts and the police officers as to the handling of the photographs and disk on which the photographs were downloaded.

-CM