EvidenceProf Blog

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

Wednesday, April 17, 2013

Can You Hear Me Now?: Why Does Massachusetts' Best Evidence Rule Not Cover Audio Recordings?

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.

As the opinion of the Appeals Court of Massachusetts in Commonwealth v. McKay, 853 N.E.2d 1098 (Mass.App.Ct. 2006), makes clear, Massachusetts' version of the Best Evidence Rule does not apply to audio recordings.

In McKay, Paul P. McKay was charged with violating a "no contact" order preventing him from contacting his former fiancée, Cynthia Whelahan. McKay allegedly violated this "no contact" order by intentionally calling and leaving a message on Whelahan's answering machine. The prosecution did not produce or account for the nonproduction of this message at trial, but a police officer testified that he listened to the message, which contained the following statement,  "This is Paul. I called to amuse you. Can you say temper? I called to say hi. Hi."

McKay's "defense consisted essentially of his contention that he had dialed her number by accident, by pressing her 'speed dial' entry in his cellular telephone while intending to call a female friend with the same first name (whose entry in his list of stored numbers was immediately adjacent to his former fiancée's).

After McKay was convicted, he successfully appealed, with the Appeals Court of Massachusetts finding that the trial court erred by preventing McKay from getting an instruction to the jury on mistake or accident.

In remanding the appellate court had the following to say about the Best Evidence Rule:

Because the issues could recur in a retrial, we also express our views that testimony concerning the content of the voice mail message is not barred by the best evidence rule (which does not apply to tape recordings, see Commonwealth v. Duhamel, 391 Mass. 841, 844, 464 N.E.2d 1352 [1984])....

What a weird limitation. Duhamel relies upon Commonwealth v. Watson, 388 N.E.2d 680 (Mass. 1979) for the proposition that the Best Evidence Rule does not apply to tape recordings, and Watson in turn states the following:

In doing so the defendant does not contend that he was entitled to have the tape admitted under the "best evidence rule,” and in fact states in his brief that “the Best Evidence Rule does not apply to tape recordings," Kortz v. Guardian Life Ins. Co., 144 F.2d 676 (10th Cir.), cert. denied, 323 U.S. 728, 65 S.Ct. 63, 89 L.Ed. 584 (1944).

The problem, however, is that there is no such language in Kortz. The Kortz court merely said the following:

Error is predicated upon the admission in evidence of a motion picture film showing pictures of the insured engaged in various activities. The person who took the pictures did not testify. But one who was present at the time testified fully, giving the name of the person taking them, the kind of camera used, and the circumstances under which they were taken. He testified positively that the pictures were a true and correct likeness of the things which he saw at the time they were taken. A photograph is admissible when it is shown that it is a correct likeness of the persons or objects which it purports to represent, and that fact may be shown by the person who made it or by any other competent witness. Mow v. People, 31 Colo. 351, 72 P. 1069. And generally, the question of the sufficiency of the preliminary proof to show the correctness of a photograph rests largely in the discretion of the trial court. In re Hayes' Estate, 55 Colo. 340, 135 P. 449, Ann. Cas. 1914C, 531.



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