Gettin' (Un)lucky in Kentucky, Take 2: Why I Disagree With a Strict Prosecution-as-Proponent Construction of Rule 1004

Yesterday's post dealt with what turns out to be an interesting question not even addressed by the Supreme Court of Kentucky: what to do with under the Best Evidence Rule when the alleged victim of a crime destroys a writing, recording, or photograph in bad faith. 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.

In turn, Federal Rule of Evidence 1004(a) provides that

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:

(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;

This begs the question of who is the proponent in a criminal case: the prosecution, the alleged victim, or both?

This was a question left unanswered by the Court of Appeals of Washington, Division 1, in State v. Detrick, 778 P.2d 529 (Wash.App. 1989). In Detrick, Kenneth Detrick was charged with second degree burglary after he allegedly burglarized a too shed used by Manfred and Martha Newhart. After the burglary, the Newharts snuck into the Detricks' mobile home and recovered what appeared to be a letter in which he stated his intention to commit a burglary at the Newharts' tool shed.

The police officer who investigated the burglary did not read the letter, but when the Newharts told him of it and the circumstances of its procurement, he told them it would be inadmissible in the prosecution of the burglar. The Newharts destroyed the letter. They testified that they did so because they believed it would be useless in a criminal prosecution and that their possession of the letter could lead to trouble for stealing mail.

In addition, the Newharts testified concerning the contents of the letter, which prompted Detrick to appeal on Best Evidence grounds after he was convicted. In rejecting this appeal, the appellate court initially noted that

The letter was destroyed by the Newharts. The Newharts were the victims of the crime and the principal witnesses in the prosecution. The Newharts were not, however, the proponents of the evidence. The State is the party prosecuting appellant, not the Newharts. It is the State that has the burden of coming forward with evidence of appellant's guilt. As such, the State is the proponent of evidence introduced against a criminal defendant. Accordingly, because the proponent did not destroy the letter at issue here, ER 1004(a) poses no impediment to the introduction of this evidence.

The court then went on to note that

even if we were to consider the Newharts to be the proponents of the letter, we would find that the court did not abuse its discretion in admitting the evidence. Both of the Newharts testified that they destroyed the letter, not to conceal its contents, but because the investigating officer led them to believe it was inadmissible in court. They also believed their possession of it could lead them to trouble for stealing mail. Accordingly, there was a tenable basis upon which the trial court could conclude that the letter was not destroyed in bad faith. The trial court did not abuse its discretion by admitting the Newharts' testimony regarding the destroyed letter.

So, because the court determined that the letter was not destroyed in bad faith, the court did not need to decide whether the proponent of the letter was the prosecution, the Newharts or both. That said, it certainly seems as if the court was leaning toward a prosecution-as-proponent reading of Rule 1004(a), a reading that I would dispute.

Let's go back to the facts of yesterday's post. An adult defendant allegedly rapes a minor victim after the two exchange text messages discussing the proposed act. The alleged victim transcribes the messages in her diary before deleting them so that her parents won't discover them, and the defendant and the cell phone company presumably no longer have the messages by the time that trial rolls around. Should the alleged victim be allowed to read her diary entries concerning the defendant's text messages? In a civil action, the answer would be a clear "no," because the alleged victim, the civil plaintiff, would be the proponent of the evidence, meaning that her bad faith destruction of the text messages would preclude her from proving their content through secondary evidence. But in the criminal prosecution, the argument could be made, as it was in Detrick, that the prosecution and not the alleged victim is the proponent of the evidence, meaning that the prosecution can prove the content of the defendant's test messages through secondary evidence.

That said, consider this: What if, after the criminal act, the alleged victim texted the defendant, "Will we get past second base next time?" The defendant deletes this message because it proves that he is guilty of a criminal act. But, by the time that trial rolls around and the defendant is charged with rape, he wants to read from his own diary in which he transcribed the alleged victim's message before he deleted it because it tends to show that he is guilty of a lesser crime than rape. Because the defendant is the proponent of this evidence and because he destroyed the victim's text message in bad faith, he would not be allowed to prove the content of the text message through secondary evidence (because I'm assuming that the rule of completeness would not apply here).

This is why I disagree with a strict prosecution-as-proponent construction of Rule 1004(a): It puts the accused on an uneven playing field with his accuser. Moreover, I think that the flaw with a strict prosecution-as-proponent construction becomes more apparent when we look at Federal Rule of Evidence 1004(c), which provides that

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if....

(c) the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing....

Let's go back to Detrick and assume that the Newharts had a recording from a surveillance camera of someone who did not look like Detrick burglarizing their tool shed. That said, because the Newharts hated Detrick, they refused to produce the recording despite being put on notice that the recording would be a subject of proof at trial. Under a strict prosecution-as-proponent analysis, there would be no problem with the Newharts testifying that they had a surveillance video showing Detrick burglarizing the shed because they would not be the proponent of the evidence. I just don't see how that makes any sense.

Therefore, my conclusion in that in a criminal trial, both the alleged victim of the crime and the prosecution should be considered the proponent of the evidence Federal Rule of Evidence 1004, meaning that misconduct by either should preclude the admission of secondary evidence.

-CM