Best evidence rule includes videotapes

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Some cases have unusual facts; others an unusual procedural history. The case of William Troy Ford, decided by the Wisconsin Supreme Court on Dec. 11, has both.

And while the decision issues two important holdings — the best evidence rule includes videotapes; and “destroyed” evidence includes impaired evidence — it leaves open the bigger issue of whether gross negligence can constitute bad faith for purposes of the rule.

Strange Facts

Ford was charged with battery, bail jumping, and conspiracy to bribe a witness, all as a repeater. The battery charge stemmed from an incident at a convenience store.

According to the decision, he allegedly struck the clerk in the head with a glass bottle, and demanded the clerk give Ford his car. When the clerk refused, he asked that the clerk pay for merchandise for Ford’s female companion. When the clerk refused this as well, the woman paid for her items, and Ford apologized and left.

However, the clerk did not call police until two hours later, when another customer, Larry Wolfgram, recommended that he do so.

The incident was recorded on the store’s security videotape recorder, but by the time the police obtained it from the store a few weeks later, it had been viewed so many times that it was irreparably damaged. It may also have been damaged further in transit to the State Crime Lab.

Strange Procedure

During the trial, Wolfgram served as the court’s bailiff; however, neither the prosecution nor the defense knew his role in the incident until the clerk, while testifying, pointed to Wolfgram, and identified him as the person who advised him to call police. The trial court then found a new bailiff to serve for the rest of the trial.

Because the videotape was damaged and could not be viewed by the jury, the court permitted witnesses who had watched the tape to testify to its contents.

Ford was convicted, and the court of appeals affirmed in an unpublished decision. The Supreme Court also affirmed, in an opinion by Justice Ann Walsh Bradley, holding that the relationship of the bailiff to the case did not require a mistrial, and that the testimony of those who watched the videotape as to its contents was properly admitted.

Mistrial

Although some cases have held that a mistrial is required because of contact between a jury and a witness who also served as a bailiff, the court concluded all were distinguishable.

Wolfgram did not testify, nor did he have significant contact with the jury. In addition, the court replaced him immediately after his role was discovered. Accordingly, the court found that his service as bailiff was not prejudicial to the defendant and did not require a mistrial.

Best Evidence Rule

The court then concluded that the witnesses’ testimony regarding the contents of the videotape was properly admitted, notwithstanding the best evidence rule.

Section 910.02 provides that, in order to prove the content of a written document, recording, or photograph, the original is required.

However, sec. 910.04(1) creates an exception if “all originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith…”

The court held the witness testimony was admissible in lieu of the actual videotapes.

The court first determined, that, although sec. 910.02 does not include videotapes (in contrast to the federal rule), it considered videotapes to be included within the statute’s ambit.

Second, the court determined that the tape was “destroyed” within the meaning of the statute, even though it was not technically destroyed, but only rendered useless.

Quoting Wright and Gold, 31 Fed. Prac. & Proc. Evid. 8014 (2007), the court agreed that, “so long as the contents can no longer be discerned, it makes sense to conclude that the item is destroyed…”

Because Ford made no argument that the State destroyed the tape in “bad faith,” within the meaning of sec. 910.04(1), the court held the testimony concerning the contents of the tape was properly admitted, and affirmed.

Case analysis

The court’s discussion of the best evidence rule yields two important, yet unremarkable, holdings: the rule encompasses videotapes, even though the Legislature has failed to expressly include them; and the term “destroyed” includes impairment that is the functional equivalent of destruction.

However, the opinion leaves open the more interesting question of what constitutes “bad faith” under the rule.

Obviously, nothing the State did in this case could plausibly constitute “bad faith,” as that term is generally understood.

However, when interpreting the best evidence rule, “bad faith” has been interpreted very broadly in many other jurisdictions, to include gross negligence, and even plain “fault.”

Footnote 7 of the court’s opinion hints at this: “In his brief to this court, Ford states that should we determine that the tape is destroyed ‘the issue may then become one of the State’s negligence or bad faith.’ … Ford has not sufficiently developed such an argument for us to consider it here (cite omitted)(emphasis added).”

On the facts in this case, or on similar facts, however, it would be easy to make a plausible argument that secondary evidence of the sort admitted here should not be admissible, based on a broad interpretation of “bad faith” that includes negligence.

The case most similar to the case at bar — interpreting the identical federal rule — held that similar evidence was admissible; however, that that case is distinguishable for several reasons. U.S. v. Knohl, 379 F.2d 427 (2d.Cir. 1967).

In Knohl, a witness made an audiotape of a conversation between herself and the defendant, on which the defendant made incriminating statements. Rather than take the tape into evidence, however, the police made a “re-recording” of the tape and allowed the witness to keep the original. By the time of trial, “[S]he was unable to find it. She testified that she did not destroy it or throw it away and that she had no knowledge of what happened to it.” Id., at 439.

The court permitted the re-recording that the police had made to be introduced into evidence, despite the best evidence rule.

However, the reasons it did so would not support admission of the evidence in the case at bar.

The court in Knohl quoted prior precedent from U.S. v. Manton, 107 F.2d 834, 835 (2d Cir. 1939) for support: “And if it appear, as it does here, that what is called the secondary evidence is clearly equal in probative value to what is called the primary proof, and that fraud or imposition, reasonably, is not to be feared, the reason upon which the best evidence rule rests ceases, with the consequence that in that situation the rule itself must cease to be applicable.” Id., at 440.

In Ford’s case, however, this rationale is inapplicable. Witnesses testifying as to what they saw on a videotape is clearly not “equal in probative value” to the videotape itself, in the same way that a copy of the original would be.

With a re-recording of an audiotape, the jury is still listening to the same thing the original would provide. However, a witness could testify, with all honesty, that he watched a videotape and saw X on the tape. A jury could watch the same videotape, and see something else. Thus, Knohl could be distinguished.

The court in Knohl also discussed the defendant’s reasons for objecting to admission of the evidence: “[The defendant’s] attack consisted mainly of arguments of counsel suggesting large scale skullduggery on the part of the Government’s witnesses in altering the tapes. … [T]he jury, after hearing testimony and arguments relative to the reliability and accuracy of the tape and under proper instructions from the court, reached its own conclusion on that issue. The jury obviously believed the explanations given by the Government’s witnesses, which it had a right to do (cites omitted).” Id., at 440-441.

In the case at bar, however, the jury did not see a “re-recording” of the original, with the right to decide whether it was an accurate recording of the original; it only heard witnesses describing what they watched. There was no allegation that the original they watched was altered by “skullduggery.” The question is simply what actually happened. Thus, this rationale of Knohl would also fail to support admission of the tape in the case at bar or similar cases.

The court in Knohl also wrote, “[A]s far as the best evidence rule is concerned, a well recognized exception is that secondary evidence may be admitted in lieu of the original provided the original has not been lost, destroyed or become unavailable through the fault of the proponent and provided the copy does not otherwise appear to be untrustworthy. See Sylvania Electric Products, Inc. v. Flanagan, 352 F.2d 1005 (1 Cir. 1965); McCormick, Evidence 196 (1954) ; 4 Wigmore, Evidence 1192 (3d ed. 1940).” Id., at 441.

In the case at bar, however, it is not a “copy” being offered, but witnesses’ description of the original; witnesses’ descriptions and recollections are necessarily less trustworthy than a copy. Again, Knohl can be distinguished.

The court in Knohl then turned to the thrust of Knohl’s argument, which also would be the thrust of the argument in any case similar to Ford’s: “[Knohl] asserts that the Government was so grossly negligent in leaving the tape in Mrs. Fuller’s [the witness’] custody that its loss should be held to be the fault of the Government.” Id., at 441.

The court in Knohl answered the question as follows: “While the Government’s procedures for insuring the safekeeping of the tape were hardly adequate, the trial court was not in error in refusing to exclude the [] tape on any of these grounds.” Id.

In Knohl’s case, the minimal qualitative difference between the best evidence and the substitute evidence may warrant overlooking the government’s negligence.

However, in Ford’s case, and any case involving similar facts, this reason fails; the government’s negligent and inadequate procedures for gathering the “best evidence” should justify disallowing the government’s substitute evidence altogether.