EvidenceProf Blog

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

Monday, April 1, 2013

Prosecution-as-Proponent?: Should Rule 1004(a) Apply When an Alleged Victim Intentionally Destroys an Original?

Last week, I posted an entry about a case that involved the following fact pattern:

-Defendant is charged with raping Victim;
-Defendant and Victim had exchanged text messages;
-Victim was afraid text messages would be discovered on her phone, so she deleted them;
-Before deleting the messages, Victim re-wrote them in her diary;
-At trial, Victim testified that she didn't remember what Defendant had texted her;
-Trial court allowed Victim to read diary entries as recorded recollections;
-After he's convicted, Defendant appeals, claiming Best Evidence Rule violation.

In a follow-up post, I then asked whether this was proper under Federal Rule of Evidence 1004(a).

The Best Evidence Rule requires a party seeking to prove the contents of a writing, recording, or photograph to produce the original at trial or account for its nonproduction. One way to account for the nonproduction of an original is, pursuant to Rule 1004(a), if "all the originals are lost or destroyed, and not by the proponent acting in bad faith...." In the above fact pattern, because the prosecution and not the alleged victim is the proponent of the evidence, Rule 1004(a) is arguably satisfied. I argued against such a strict reading of Rule 1004(a) in my follow-up post, and I think that I have come up with a hypothetical that demonstrates the cause of my discomfort.

Assume that Vince's house is burglarized. Vince, whose home has been burglarized in the past, has something resembling a nanny cam set up in his living room that allegedly records his neighbor, Ned, burglarizing Vince's house. After his home is burglarized, Vince watches the recording and sees Ned burglarizing his home. Upon watching the recording, Vince also realizes that the recording shows a line of cocaine on the living room table. Vince thus erases the recording so that he won't be arrested for drug possession and calls the police to report the burglary.

Police arrive at Vince's house and they take a statement from him in which he states that he saw Ned burglarizing his home on his surveillance recording. When the police ask Vince for the recording, he states that he erased it. When they ask why he erased it, he responds by invoking his Fifth Amendment privilege against self-incrimination.

The prosecution merely has circumstantial evidence linking Ned to the burglary besides Vince's testimony. If we apply a strict prosecution-as-proponent construction of Rule 1004(a), Vince can testify about what he saw and very likely secure Ned's conviction because Vince is not the proponent of the evidence.

I just don't see how we can allow Ned to be convicted via Vince's testimony under these circumstances.



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Why? Because the tape owner also uses drugs? Because he purposefully destroyed the tape? Usually the issue is that the tape was probably not very clear and the identification that results isn't very accurate. Your hypo focuses on the irrelevant. The worst case scenario is when the tape owner is lying in order to finger the wrong person. Presumably you would know the cause and be able to reveal their bias. But in those cases when you don't, that innocent goes to prison.

Posted by: nidefatt | Apr 1, 2013 9:23:24 PM

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