Be Kind, Rewind: Southern District Of Ohio Uses Best Evidence Rule To Preclude Admission Of Private Eye’s Affidavit
Federal Rule of Evidence 1002, the Best Evidence Rule, 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 or by Act of Congress.
I always tell my Evidence students that the Best Evidence Rule rarely prevents proponents from proving the contents of writings, recordings, and photographs. Instead, the provisions of Article X of the Federal Rules of Evidence merely point to how those contents will be proven. If the proponent has the original, it can introduce the original. If the proponent has a “duplicate,” it can introduce the duplicate. And, if the proponent has neither, it can still prove the contents of the writing, recording, or photograph unless it lost or destroyed the original in bad faith or provides no reason for failing to produce it. The recent opinion of the United States District Court for the Southern District of Ohio in Crace v. Efaw, 2011 WL 1459357 (S.D. Ohio 2011), is thus the exception to the general rule.
In Efaw, David Crace, the plaintiff,
called police during a domestic dispute with his wife in their home….Patrolman Wallace Workman and Deputy Wes Collins responded to the call….Patrolman Workman arrested and handcuffed plaintiff, charged him with domestic violence, and drove him to the Lawrence County Jail….
Once at the jail, plaintiff was taken to a bench in the booking area….Defendants Deputy Richard Slack, Deputy Boyd Blake and Deputy Amanda Efaw were working at the jail that evening….While Deputy Efaw entered the booking information, plaintiff was asked about completing fingerprint paperwork….Shortly thereafter, plaintiff was taken to the ground and a physical altercation between plaintiff and Deputy Slack, Deputy Blake, Patrolman Workman and other officers followed….Deputy Efaw observed, but did not participate in, the physical altercation.…
Plaintiff was then lifted to a standing position and placed in a restraint chair….After posting bond and leaving the jail, plaintiff sought immediate medical treatment at St. Mary’s Hospital….Plaintiff allege[ed] that he suffered injuries to various parts of his body.
Crace thereafter brought an action under 42 U.S.C. Section 1983 against the defendants in their individual capacities. Apparently, there was a videotape recording of the events during Crace’s booking, and Crace hired a private investigator, Stand Molnar, to review the jail’s videotape recording of the events during the booking process, including the physical altercation involving Crace. The defendants moved for summary judgment dismissing the complaint, Crace sought to introduce an affidavit by Molnar stating what he saw on the recording, but the Southern District of Ohio found that it was inadmissible under Federal Rule of Evidence 1002 because
Mr. Molnar was not present during these events and his affidavit simply offers his interpretation of the events captured on videotape, i.e ., Mr. Molnar’s knowledge is derived exclusively from reviewing the videotape….The Federal Rules of Evidence, however, require that “[t]o prove the content” of a recording, the original recording is required unless an exception applies. Fed.R.Evid. 1002. Plaintiff does not submit the videotape referred to in the Molnar Affidavit, nor does he explain why he could not do so. None of the exceptions to Fed.R.Evid. 1002 appear to apply in this case. See Fed.R.EVid. 1004, 1005, 1006, 1007 (providing exceptions when the originals are lost, destroyed, unobtainable, in the possession of party opponent, relate to collateral matters, of public record, voluminous, or are the admission of a party). Accordingly, the Court will not consider the Molnar Affidavit when determining whether there exists a genuine issue of material fact.
-CM