Thursday, April 18, 2013
NCIS Hawai'i: Court of Appeals of Hawai'i Finds Best Evidence Rule Violated by Testimony About Child Pornography
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.
It is rare that there is a Best Evidence Rule violation under Rule 1002, but In re "R" Children, 216 P.3d 127 (Hawai'i App. 2009), is just such a case
In In re "R" Children, a father appealed a family order court granting the State of Hawai‘i, Department of Human Services (DHS) family supervision over his children, R.R. and K.R. The sole basis for this order was testimony by Naval Criminal Investigative Service (NCIS) agents, who described child pornography images that they allegedly recovered from computers used by the father.
The father claimed that this testimony violated the Best Evidence Rule while the State responded that this secondary evidence was admissible under Hawai'i Rules of Evidence 1004(2) and (4), which provide that
The original or a duplicate is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:
(2) Original not obtainable. No original can be obtained by available judicial process or procedure;....
(4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue.
The Court of Appeals of Hawai'i disagreed with the State, concluding that
HRE Rule 1004(4) excuses the production of the original where the document is not "closely related to a controlling issue." However, the sole basis of DHS's Petition was that Father presented a threat of sexual harm to the children because he possessed child pornography in the household and that Mother failed to recognize the safety issues presented by Father's possession of child pornography. Thus, the nature of the photographs found on the Parents' computers was central to assessing the presence of a threat of harm to Children.
DHS also argues that, because NCIS had "denied access" to the images and videos, HRE Rule 1004(2) applied. Lerza was present to testify regarding the NCIS investigation. Lerza's testimony made it clear that Parents' computers were, at the time of the hearing, in the possession of the Hawaii NCIS office. Lerza asserted no privilege or nor did he present any explanation for the failure of NCIS to either produce Parents' computers or printouts of the images in question. Thus, the record does not support the position that the originals of the images were "not obtainable." In light of the plain language of HRE Rule 1004(2) which specifies that "not obtainable" means "no original can be obtained by available court process or procedure," DHS's argument that this exception applies is not supported by the record.