EvidenceProf Blog

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

Thursday, April 17, 2014

Next Best Thing: Court of Appeals of North Carolina Finds Testimony About Deleted Voicemails Admissible

North Carolina Rule of Evidence 1002, North Carolina's version of the Best Evidence Rule, 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.

That said, North Carolina Rule of Evidence 1004 provides that

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

(1) Originals Lost or Destroyed. - All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or

(2) Original Not Obtainable. - No original can be obtained by any available judicial process or procedure; or

(3) Original in Possession of Opponent. - At a time when an original was under the control of a party against whom offered, he was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and he does not produce the original at the hearing; or

(4) Collateral Matters. - The writing, recording, or photograph is not closely related to a controlling issue. 

As the recent opinion of the Court of Appeals of North Carolina in State v. Barnette, 2014 WL 1464155 (N.C.App. 2014), makes clear, Rule 1004(1) explains why most evidence is not excluded under the Best Evidence Rule.

In Barnette, Donald Barnette was charged with assault with a deadly weapon inflicting serious injury (AWDWISI) and intimidating a witness. This latter charge stemmed from two threatening voicemails that Bobby Austin, the victim of the former crime, received on his phone. Those voicemails were not played at trial, but Austin testified concerning their contents and how they appeared to be made by Barnette.

After he was convicted, Barnette appealed, claiming that the admission of this testimony violated North Carolina Rule of Evidence 1002. The Court of Appeals of North Carolina, however, found that secondary evidence of the voicemails was admissible as long as the prosecution complied with North Carolina Rule of Evidence 1004(1). The court then found that there was indeed such compliance, concluding that

Here, the victim testified during the admissibility hearing that the phone storing the voice mails was “lost. I don't know what happened to it.” When asked by the trial court about whether he intended to save the phone, the victim stated, “it got lost or something, couldn't find it.... I was going to save it. I think my wife tell [sic] me to keep that voice mail in case we go to court, but like I said, I lost it. I don't know what happened to it .” Mrs. Austin also testified about the location of the phone, and she said that “[w]e was [sic] paying by the—every month and that phone got old and I wanted a newer phone.... I really don't remember where it's at. I really don't remember.... I looked everywhere for it.... It's been gone for so long, honey, I looked for it and I can't find it. I've looked for it.” The victim's and Mrs. Austin's testimony indicate that the phone was lost despite their reasonable efforts to locate it. Their combined testimony coupled with no assertion by defendant that the voice mails were destroyed or lost in bad faith were sufficient grounds for the trial court to allow other evidence of the voice mails' contents. Thus, the trial court did not err in allowing the victim and Mrs. Austin to later testify about the contents of the voice mails during the State's case-in-chief.



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