Monday, October 22, 2012
Better Evidence Or Best Evidence?: Court Of Appeals Of Texas Botches Best Evidence Analysis In Tampering Case
Similar to its federal counterpart, Texas 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 law.
And, similar to its federal counterpart, Texas Rule of Evidence 1004(a) provides that
The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if....[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith
So, what happens if an original is not lost or destroyed, but the government still does not produce it because it does not want to pay the retrieval fee? Well, then you have a case like State v. Chavera, 2012 WL 4900856 (Tex.App.-San Antonio 2012). So, why did the court is Chavera not reverse the defendant's conviction?
In Chavera, Baldemar Chavera was charged with tampering with a governmental record. This charge related to Chavera allegedly not indicating on his food stamp application that his wife was receiving unemployment benefits.
Mike Casey, a fraud investigator with the [Texas] Department [of Health and Human Services], was assigned to investigate Chavera's application after another Department employee discovered a record showing that [Chavera's wife Michelle] Soliz received unemployment benefits from April of 2009 to December of 2009. Casey testified that Chavera's case folder did not contain his application. Casey testified that the Department's documents are routinely sent to a storage facility in Austin. Although Casey asked his supervisor about retrieving Chavera's application from the storage facility, his supervisor instructed him not to retrieve the application because the Department would have to pay the storage facility a retrieval fee.
According to the court's opinion
Nora Cruz, a caseworker employed by the Texas Department of Health and Human Services was assigned the food stamp application submitted by Chavera. Cruz had been employed by the Department for thirty-four years and had twenty-four years' experience as a caseworker. Cruz testified that when she interviews an applicant, she has the applicant's application present. During the interview, Cruz completes a generic worksheet on her computer.
The generic worksheet Cruz completed while interviewing Chavera was admitted into evidence. The generic worksheet states that the date on Chavera's application was June 2, 2009. During the interview, Cruz explained to Chavera the various forms of income that needed to be reported. Cruz testified that during the interview and on the application, Chavera claimed Social Security benefits received by himself and his daughter as his sole household income. Cruz testified that during the interview, Chavera did not inform Cruz that his wife, Michelle Soliz, was receiving unemployment benefits.
Although Chavera's case folder did not contain his application at the time of trial, Cruz explained that the Department's records are routinely sent to Austin for storage and are shredded after a certain number of years. Cruz unequivocally stated that she had Chavera's application present at the time she interviewed him. On cross-examination, Cruz was asked whether she "actually saw a physical paper application," and she responded, "Yes ma'am."
After he was later convicted of the crime charged, Chavera filed a motion for a new trial on Best Evidence grounds, and the court granted it, finding that
I think the Department of Health and Human Services didn't want to make the effort to locate the document that could have showed us, I think, almost conclusively whether or not this gentlemen, in fact, made a false statement on that application. They just didn't want to put the effort forth....You know, Counsel, it's kind of funny because the indictment says made a false entry in a governmental record the State couldn't even produce at the trial of the case, the record that this gentlemen is accused of making a false statement on....The Health and Human Services and the Department of the Inspector General's Office feel that they want to pursue criminal cases against people and try to deprive them of their life and liberty, they can certainly make the effort to locate the original application, which they never could produce, and then admitted on the stand they didn't even make an effort to produce because they didn't want to spend the money. Apparently, those records are kept with a private entity, and they didn't want to spend the money to hire that private entity to go in and do an actual search of the records....I just thought it was a real sad day for criminal justice when the Department of Health and Human Services didn't make the effort to locate a record which could have established this conclusively, or—or—one way or the other in this matter because they didn't want to spend the money.
Thereafter, the Court of Appeals of Texas, San Antonio, found that there was indeed a Best Evidence Rule violation, holding that
Article X of the Texas Rules of Evidence, commonly referred to as the best evidence rule, requires the original writing to be introduced into evidence to prove its contents absent the application of one of the exceptions listed in the rules...."The best evidence rule rests on the fact that a document is a more reliable, complete, and accurate source of information as to its contents and meaning than anyone's description."...One of the reasons the rule was developed at common-law is because parol testimony regarding the content of a writing is susceptible to human error....Although Rule 1004 contains an exception for instances in which the original writing is lost or destroyed, no exception exists for the failure to produce the original writing because the Department did not want to pay a retrieval fee. When the Department and the State take actions that place a person's very liberty at stake, the Department and the State should ensure that the evidence on which they will rely is admissible under the Texas Rules of Evidence. Although no objection was made based on the best evidence rule in the instant case, the failure to make the effort to retrieve the application upon which this prosecution was based is not to be condoned. If the Department refuses to produce the application to support a prosecution solely based on its unwillingness to pay a retrieval fee, then the State should refuse to prosecute the case....We agree with the trial judge that "it [is] a real sad day for criminal justice" when this type of sloppy prosecution is pursued.
And yet, the court found that Chavera was not entitled to a new trial, concluding that
Constrained by our standard of review and the absence of a best evidence objection, we hold that the jury could have found that Chavera submitted an application that omitted any reference to Soliz's unemployment benefits based on Cruz's testimony regarding the application's contents. This court could probably take judicial notice of the thousands of applications that Cruz is assigned each year which raises concerns about her ability to specifically recall the contents of Chavera's application; however, the jury is the sole judge of Cruz's credibility with regard to the contents of the application and the weight to be given to her testimony....Because Cruz's testimony is legally sufficient evidence to support the jury's verdict, the trial court erred in granting Chavera's motion for new trial.
Huh? This makes no sense whatsoever. The entire point of the Best Evidence Rule is that a party cannot prove the contents of a writing, recording, or photograph without producing the original or explaining its nonproduction. According to the Court of Appeals of Texas, however, Cruz could not only testify about the contents of the application, but her testimony was legally sufficient evidence of the application's contents. Simply put, the court is wrong, and I fully expect a subsequent reversal on appeal.
Yes, it was a failure to object/plain error case. But it seems that the court certainly found plain error:
"Although no objection was made based on the best evidence rule in the instant case, the failure to make the effort to retrieve the application upon which this prosecution was based is not to be condoned."
Moreover, as the court noted, Cruz's testimony was the only testimony concerning the contents of the application, and that testimony was plainly inadmissible.
Posted by: Colin Miller | Oct 23, 2012 8:17:03 AM
I agree, to a point. Plain error is a high bar to reach and I'm not sure that it can be reached in this case (though we certainly have benefited from an analysis of that question from the appellate court here).
Plain error is invoked to prevent a miscarriage of justice or to preserve the integrity and the reputation of the judicial process. U.S. v. Smith, 962 F.2d 923, 935 (9th Cir. 1992). Generally, plain errors are of constitutional dimension, not mere violations of a rule of evidence.
Does this particular error rise to the "miscarriage" standard? One wonders. Consider that if a timely objection was made the prosecutor could (note could, not would) have obtained the document, presumably proved the case, etc. The defense may have made a tactical decision to avoid objecting for that very reason. Perhaps the defense believed they had a better chance with the jury without the original document, not an unreasonable tactical decision. Consider further that the defense may have already had the document in their possession (they certainly could have acquired it) and therefore might have known that a best evidence rule objection and remedy would have harmed their case. I know I'd much rather argue to a jury that the witnesses recollection of a missing document is far better than having to stare down the real thing, defendant's signature and all.
I completely agree that this error was not harmless. But I think it falls into that category of non-harmless errors that fall short of plain error.
The defendant in this case might do well to attack the conviction on ineffective assistance grounds. Had an appropriate objection been raised, this case would not have even reached the jury.
Posted by: Joe Heinzmann | Oct 23, 2012 1:18:56 PM
I'm not sure I agree that the appellate court botched this one. The key words for me are "and the absence of a best evidence objection." Sounds to me like trial counsel failed to make the specific objection that would have alerted the trial court to the issue. Whatever additional foolish analysis the appellate court propounded, this case seems to rest on the lack of preservation of the issue.
Posted by: Joe Heinzmann | Oct 23, 2012 7:11:18 AM