EvidenceProf Blog

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

Tuesday, March 26, 2013

Gettin' (Un)lucky in Kentucky: Supreme Court of Kentucky Apparently Badly Botches Best Evidence Ruling Regarding Text Messages

Similar to its federal counterpartKentucky Rule of Evidence 1002 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, in other rules adopted by the Kentucky Supreme Court, or by statute.

Now, take a look at the recent opinion of the Supreme Court of Kentucky in Simmons v. Commonwealth, 2013 WL 674721 (Ky. 2013), and tell me if you think that it makes any sense.

In Simmons, James Simmons was convicted of of first-degree sexual abuse, third-degree sodomy, third-degree rape, and of being a second-degree persistent felony offender (PFO). Simmons and the victim, E.J.,

allegedly entered into a flirtatious dialogue via text messages and ultimately engaged in sexual intercourse

According to the Court of Appeals of Kentucky,

E.J. was afraid that the text messages would be discovered on her phone and therefore, deleted the messages. Before deleting the messages, however, E.J. wrote the messages in her diary.

At trial, after E.J. testified that she could not remember exactly what Simmons had said to her during the text message exchange, the trial court allowed for her to read the messages that she had recorded in her diary, deeming them recorded recollections under Kentucky Rule of Evidence 803(5), which provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not be received as an exhibit unless offered by an adverse party.

After he was convicted, Simmons appealed, claiming, inter alia, that E.J.'s testimony regarding the diary entries/text messages violated the Best Evidence Rule/Rule 1002. The Supreme Court of Kentucky disagreed, concluding that

According to KRE 1002, the original document must be admitted in order "[t]o prove the content of a writing, recording, or photograph...except as otherwise provided in these rules, in other rules adopted by the Kentucky Supreme Court, or by statute."...[T]he text messages were never admitted and E.J.'s recitation of them was not in violation of KRE 1002 and thus, the trial court did not abuse its discretion."

I'm not even really sure what the Supreme Court of Kentucky is trying to say here. The court is correct that the text messages were never admitted, but that is precisely why there was a violation of Rule 1002. If the prosecution wanted to prove the contents of the text messages, it had to (a) produce them at trial; (b) produce a "duplicate" (i.e., "a counterpart produced by the same impression as the original"); or (c) account for their nonproduction (e.g., by showing that the originals were lost or destroyed in the absence of bad faith).

In Simmons, the original text messages were not produced, E.J.'s had-written transcriptions were not "duplicates," and the originals were destroyed by E.J. in bad faith. In other words, Simmons involved the classic case of a Best Evidence Rule violation. Am I missing something, or did the Supreme Court of Kentucky miss something?



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You are not missing something CM but you are overlooking the that fact that the crime at issue is a sex crime. You talk as if the rules of evidence matter in such cases.

Posted by: Daniel | Mar 26, 2013 4:53:18 PM

I guess the Court viewed it as a recollection of a "conversation" and she was just using her notes to refresh her inadequate recollection of what was "said." But I agree, there is a problem here.

Posted by: Brian | Mar 28, 2013 12:26:15 PM

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