Nothing Compares: 9th Circuit Finds Best Evidence Rule Doesn't Cover Absence Of Entries In Computer Databases

Federal Rule of Evidence 1002, 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 Act of Congress.

So, let's say that the prosecutor wants to call a witness to testify about the absence of an entry in a computer database. Under the Best Evidence Rule, would the prosecutor be required to introduce a printout of the search results from the database? According to the recent opinion of the Ninth Circuit in United States v. Diaz-Lopez, 625 F.3d 1198 (9th Cir. 2010), the answer is "no."

In Diaz-Lopez, Luis Diaz-Lopez was convicted of being a removed alien found in the United States in violation of 8 U.S.C. § 1326(a). Diaz-Lopez's defense was that he filed a Form I-212, which is the required application for permission to reapply for admission to the United States after having been previously removed. In response, the government introduced testimony from a Border Patrol agent stating that he had performed a search of the Computer Linked Application Information Management System ("CLAIMS") database using Diaz-Lopez's name, alien number, and date of birth, and had found no record of Diaz-Lopez having filed a Form I-212.

After Diaz-Lopez was convicted, he appealed claiming that under the Best Evidence Rule, the prosecutor needed to introduce a printout of the search results from the CLAIMS database. The Ninth Circuit disagreed, finding that the "question [wa]s whether the evidence was introduced '[t]o prove the content of a writing, recording, or photograph.'" And, according to the court, 

it was not. The agent's testimony that he searched the database and found no record of Diaz having filed an I-212 is similar to testimony "that an event did not occur because relevant records contain no mention of it. This negative type of testimony is usually held not to constitute proof of contents and thus not to require production of records."...Indeed, the advisory committee's note to Rule 1002 states that the best evidence rule does not apply to "testimony that books or records have been examined and found not to contain any reference to a designated matter." 

Moreover, the Ninth Circuit declined Diaz-Lopez's invitation to apply the Best Evidence Rule differently to computer databases than it applies to physical files, concluding thayt

First, we do not see any meaningful difference between a search of a physical file and a search of a database. Databases contain “physical” records, too, even if those records are not printed on paper. Second, the best evidence rule, like us, now survives in the twenty-first century. It is common sense, and not mere symmetry, to say that because the rule applies to computer databases, the rule's limitations must also apply to such databases. It is reasonable to apply the best evidence rule to new circumstances as technology evolves, but when the rule is extended, courts will necessarily be required to decide if the limits on the rule extend as well. When, by virtue of new technology, the best evidence rule can be applied to testimony about databases, the traditional limits on the rule should be properly extended as well.

-CM