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?

In McKenzie, the facts were as stated above, with the testimony coming at a supervised release revocation hearing for Tedrick McKenzie.

At the revocation hearing, Agent Charles Battle, a narcotics investigator with the Calhoun County Drug Task Force, testified that—at Agent Battle's direction—a confidential informant ("CI") called McKenzie and arranged to buy drugs. While wearing audio and video recording devices, the CI drove to the pre-arranged meeting site and purchased one gram of cocaine. Agent Battle monitored the audio and video feeds as the drug sale took place. The audio and video of the sale was also recorded. Based on monitoring the video feed, Agent Battle identified McKenzie as the person selling cocaine to the CI.

The recording from the video feed was not presented at the hearing, and, after his supervised release was revoked at the hearing, McKenzie appealed, claiming, inter alia, that Agent Battle's testimony violated the Best Evidence Rule.

The Eleventh Circuit initially noted that the rules of evidence don't apply to supervised release revocation hearings but then acknowledged that defendants at such hearings are entitled to certain minimal due process requirements. The court then found that

Because Agent Battle's testimony was offered to prove McKenzie's identity as the seller—not the content of the video recording in itself—and was based on Agent Battle's monitoring of the live video feed, the best evidence rule does not apply.

First, I can't make heads or tails of the Eleventh Circuit's conclusion that Agent Battle's testimony was offered to prove McKenzie's identity and not the content of the video recording itself. The drug sale was the content of the video recording, so Battle's testimony identifying McKenzie was of course proving the content of the recording. Imagine that Battle saw a photograph of the drug sale and testified at trial that he saw McKenzie handing drugs to the CI in the photograph without the photograph being produced or accounted for at trial. That would be a clear violation of the Best Evidence Rile.

But McKenzie isn't quite like that classic case because Battle's testimony wasn't based upon the video recording; instead, it was based upon watching the live feed. So, does that mean that Battle had independent personal knowledge and that there was no Best Evidence Rule issue? I don't know.

One way to look at it is that Battle saw the drug sale as it unfolded, meaning that he had independent personal knowledge and that there was no Best Evidence Rule issue. But Battle didn't actually see the drug sale. He saw the video feed of the drug sale. Is that meaningfully different? Is the video feed the original, meaning that Battle's personal knowledge was dependent on that original, with the video recording then also being an "original" under Federal Rule of Evidence 1001(d), which states in relevant part that

For electronically stored information, "original" means any printout — or other output readable by sight — if it accurately reflects the information.

And does that mean that the video recording needed to be produced or accounted for at trial? Again, I don't know.

-CM