Sixth Circuit Seemingly Misapplies Best Evidence Rule in “Salacious Tale of Star-Crossed Lovers, Heartbreak, Abduction, [and] a Decade-Long Disappearance”

The recent opinion of the Sixth Circuit in United States v. Johns, 2018 WL 6703465 (6th Cir. 2019), makes the case sound pretty wild:

This case is about two women, Johns and Westphal, who maintained a secret lesbian relationship for nearly a year. When Westphal attempted to end the relationship, Johns appeared unannounced and uninvited at Westphal’s residence. An eight-day car trip ensued, ending when Westphal, finally alone in the car, escaped. Shortly thereafter, Johns was arrested. Westphal alleged that Johns had abducted her at gun point and sexually assaulted her during the trip. Johns claimed Westphal had gone willingly in order to persuade Johns not to expose their secret relationship. Johns was eventually indicted and convicted on—as relevant here—charges of kidnapping….

The facts of this case tell a salacious tale of star-crossed lovers, heartbreak, abduction, a decade-long disappearance, and she-said-she-said intrigue originating from the now-infamous AOL chatrooms in the early days of the internet. In contrast, the actual legal issues presented in this case are dry, technical, and straightforward.

And that’s just the introduction. While I agree with the court’s characterization of the facts, I disagree with its characterization of the law.

So, what was the legal issue?

Prior to trial, Johns listed as exhibits 269 printed-out electronic communications between Johns and Westphal and emails that Johns had sent to herself. Many of the latter emails included copied and pasted AOL Instant Messenger conversations purportedly between Johns and Westphal.

The district court, however, excluded these exhibits under, inter alia, the Best Evidence Rule, finding that there was insufficient evidence evidence to establish that they were “originals” or duplicates under the Best Evidence Rule. Johns, however, claimed that the exhibits were admissible under Federal Rule of Evidence 1004, which states 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;

(b) an original cannot be obtained by any available judicial process;

(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; or

(d) the writing, recording, or photograph is not closely related to a controlling issue.

The Sixth Circuit, however, found that Rule 1004 didn’t apply here, concluding as follows:

[A]ny claims of admissibility under Federal Rule of Evidence 1004 as secondary evidence of an original writing or under Federal Rule of Evidence 1003 as a duplicate run into the same problem—the authenticity of the alternate production. As the Advisory Committee Note for Federal Rule of Evidence 1003 on duplicates states, “a counterpart serves equally as well as the original, if the counterpart is the product of a method which insures accuracy and genuineness.” Fed. R. Evid. 1003 Ad. Comm. Notes (1972). The same would apply to a Rule 1004 secondary evidence exception claim. It is this aspect of the authentication challenge that Johns fails to address.

Respectfully, I think this analysis is wrong. The Best Evidence Rule defines a “duplicate” as 

a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original. See Fed. R. Evid. 1001(e).

In other words, a photocopy is admissible under Rule 1003 because it’s the result of a method which ensures accuracy and genuineness while a copy produced by a human scribe is not admissible under Rule 1003 because it is subject to human error.

By way of contrast, under Rule 1004,

Secondary evidence includes any type of evidence besides the original, “ranging from photographs and handwritten copies to oral testimony of a witness whose credibility is suspect.” Indeed, courts have even held that when the opponent of a duplicate has made a successful challenge to it under Rule 1003(1), the proponent can still introduce the “duplicate” if he establishes one of the Rule 1004 circumstances. Furthermore, courts have relied upon the Advisory Committee’s notes to Rule 1004 in concluding that there are no “degrees” of secondary evidence. Accordingly, once the proponent meets his burden of proof in establishing one of the Rule 1004 circumstances, he is free to submit any type of secondary evidence; there is no requirement, for instance, that a “copy be introduced in preference to . . . oral testimony” on the ground that the former is better evidence. Colin Miller, Even Better Than the Real Thing: How Courts Have Been Anything but Liberal in Finding Genuine Questions Raised as to the Authenticity of Originals Under Rule 1003, 68 Md. L. Rev. 160 (2008).

-CM