Telephone Line: TN Court Best Evidence Violation Regarding Jailhouse Telephone Calls Not Plainly Erroneous

Like its federal counterpart, Tennessee Rule of Evidence 1002, Tennessee's 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 Act of Congress or the Tennessee Legislature.

As the recent opinion of the Court of Criminal Appeals of Tennessee in State v. Graves, 2011 WL 398024 (Tenn.Crim.App. 2011), makes clear, however, if a party does not raise a Best Evidence objection at trial, it is unlikely that the party will successfully be able to raise the issue on appeal. 

In Green, Ivan Charles Graves was convicted of first degree premeditated murder and felony murder committed during the perpetration of a kidnapping. At trial, the court allowed for the prosecution to admit into evidence transcripts of jailhouse telephone calls that incriminated Green.  Previously, the State had agreed to "burn" a CD containing the ten calls at issue for the trial court. At trial, however, the State did not introduce the CD and instead only introduced the transcripts, and defense counsel did not raise a Best Evidence objection.

After he was convicted, Graves appealed, claiming, inter alia, that the admission of these transcripts violated Tennessee Rule of Evidence 1002. The Court of Criminal Appeals of Tennessee agreed, finding that

It is not clear from the record why the State did not introduce the CD containing the recorded telephone calls into evidence. Pursuant to the best evidence rule, the CD, not the transcripts, was the best evidence. Furthermore, no testimony was presented from any witness who personally compared the audio recordings to the transcripts to verify their accuracy.

That said, the court found that Graves did not object to the admission of the transcripts at trial, meaning that it could only reverse for plain error, meaning that

(a) the record must clearly establish what occurred in the trial court; (b) a clear and unequivocal rule of law must have been breached; (c) a substantial right of the accused must have been adversely affected; (d) the accused did not waive the issue for tactical reasons; and (e) consideration of the error is "necessary to do substantial justice."

And the court refused to find such plain error because the statements in the jailhouse telephone calls was corroborated by other evidence in the record. In other words, it will be difficult for an appellate court to find plain error in a Best Evidence appeal unless the original writing, recording, or photograph is the sole evidence on a key issue at trial.

-CM