EvidenceProf Blog

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

Thursday, March 28, 2013

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.



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This is a fascinating question. First, I agree with you that the distinction the court drew makes no sense. The identification was based upon the content of the video feed. If the content of the video didn't exist, how could he have proved the identity? The logic is mind-numbingly bad.

As for the broader question of whether watching a live video feed qualifies as independent personal knowledge my gut reaction is no, it is not. The reason is that if the personal knowledge is based upon the video feed can such personal knowledge be truly "independent"? The video is controlled by the person who is holding the camera and that is not the same as the person watching it. For example, the person who has the wire could twist the camera in one direction or another so as to give the viewer a distorted view of the scene leading to a misidentification. It seems to me that a live video feed is precisely the definition of a dependent relationship: the viewer is dependent on the person who holds the camera.

Having said that, I concede that the issue is likely to be more common in the future. What if a drone operator identifies a terrorist via the drone's video feed by the FBI doesn't want to show the feed because it would compromise national security? Can that identification be used in court? What about a wildlife camera that captures a crime in action but where the evidence is not preserved? Remote sensing of all types is becoming more and more common and it a fine question as to how the rules of evidence should evolve to take into account such shifting technology. There may be situations where remote sensing is the only viable way for an identification to be made.

Posted by: Daniel | Mar 28, 2013 12:41:25 PM

This baffles me as well. I, however, tend to first think of authentication before even thinking about the best evidence rule (even though there is nothing here to be authenticated). Courts have to stretch to even let the officer authenticate the tape if that officer was not the one who set up, was running, and controlled the chain of custody of the tape, so how could they reasonable say forget about the tape when the officer might not even be able to authenticate the tape. If, however, the court went through an analogous set of foundation steps with the officer's testimony and then you added the single step of live feed, I suppose one could say it was first hand observation and equivalent to looking through your eye glasses, as opposed to watching something that had already transpired. Thus, best evidence doesn’t apply. With that said, to me treating a live feed as the equivalent of eye glasses would subvert the intent of the rules and be the equivalent of letting the government use business records exceptions when they can’t meet the government records exception. In short, sure, we can make a reasonable, if not strong, argument that the officer’s watching of the video is a firsthand observation, but it seems to me the best evidence rule is clearly intended to exclud this sort of testimony.

Posted by: Derek | Mar 29, 2013 6:40:47 AM

You'd be AMAZED at how often these types of live video feeds are not actually being recorded at all. I had a case that arose out of some facts at a major U.S. international airport -- every square inch of which is covered with cameras -- but not one of those cameras were set to record (they were all just live-feed to a security booth). Likewise with prisons, cameras all over the place but none of them are actually recording.

Posted by: Simon | Mar 29, 2013 11:39:13 AM

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