EvidenceProf Blog

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

A Member of the Law Professor Blogs Network

Friday, March 29, 2013

The Best of Everything: Court Strikes Portions of Affidavit Referencing Non-Produced E-Mails in Fraud 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.

A few days ago, I posted an entry about the Best Evidence Rule and the exchange of text messages between a criminal defendant and an alleged victim. Today, let's look at Grant v. Van Natta, 2013 WL 466212 (S.D. Ind. 2013), a case involving the Best Evidence Rule and the exchange of text messages between a civil plaintiff and a civil defendant.

Continue reading

March 29, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, March 28, 2013

Better Evidence or Best Evidence?: Does the Best Evidence Rule Apply if the Witness Saw a Live Video Feed?

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.

It is clear, however, that the Best Evidence Rule does not apply if a witness has independent personal knowledge  of an event that was later or simultaneously reduced to a writing, recording or photograph. Let's say, for instance, that William is in a bank when he observes Dan robbing the bank. The bank robbery is also captured on the bank's surveillance camera. William could testify about the robbery because he has independent personal knowledge of the bank robbery, i.e., his knowledge is not dependent on the surveillance footage. In other words, even if there were no surveillance camera, William would still have personal knowledge of the robbery. Conversely, if Police Officer Peters were not in the bank, later looked at the surveillance footage, and then destroyed the footage, the Best Evidence Rule would preclude him from testifying about the robbery at trial.

The recent opinion of the Eleventh Circuit in United States v. McKenzie, 2013 WL 323237 (11th Cir. 2013), however, presents an interesting twist on this scenario: What if an officer is watching a live video feed of a of drug sale and the prosecution then wants the officer to identify the defendant as a participant in that drug sale at trial without producing the video recording of that sale? Does such testimony violate the Best Evidence Rule?

Continue reading

March 28, 2013 | Permalink | Comments (3) | TrackBack (0)

Wednesday, March 27, 2013

Gettin' (Un)lucky in Kentucky, Take 2: Why I Disagree With a Strict Prosecution-as-Proponent Construction of Rule 1004

Yesterday's post dealt with what turns out to be an interesting question not even addressed by the Supreme Court of Kentucky: what to do with under the Best Evidence Rule when the alleged victim of a crime destroys a writing, recording, or photograph in bad faith. 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.

In turn, Federal Rule of Evidence 1004(a) provides that

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

(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;

This begs the question of who is the proponent in a criminal case: the prosecution, the alleged victim, or both?

Continue reading

March 27, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 26, 2013

Gettin' (Un)lucky in Kentucky: Supreme Court of Kentucky Apparently Badly Botches Best Evidence Ruling Regarding Text Messages

Similar to its federal counterpartKentucky 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, in other rules adopted by the Kentucky Supreme Court, or by statute.

Now, take a look at the recent opinion of the Supreme Court of Kentucky in Simmons v. Commonwealth, 2013 WL 674721 (Ky. 2013), and tell me if you think that it makes any sense.

Continue reading

March 26, 2013 | Permalink | Comments (2) | TrackBack (0)

Monday, March 25, 2013

Non-Event: Court of Appeals of Texas Finds "No Records" Certificate Admissible Under Rule 803(10)

Similar to its federal counterpartTexas Rule of Evidence 803(10) provides the following exception to the rule against hearsay:

(10) Absence of Public Record or Entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Rule 902, or testimony, that diligent search failed to disclose the record, report statement, or data compilation, or entry.

As the recent opinion of the Court of Appeals of Texas, Houston, in Texas Municipal Power Agency v. Johnston, 2013 WL 744395 (Tex.App.-Houston [1 Dist. 2013]), makes clear, this exception frequently applies to "no records" certificates.

Continue reading

March 25, 2013 | Permalink | Comments (0) | TrackBack (0)