Better Evidence Or Best Evidence?: Supreme Court Of Rhode Island Engages In Detailed Analysis Of Best Evidence Rule

January 10, 2010

Like its federal counterpart, Rhode Island Rule of Evidence 1002, its 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 statute.

However, also like its federal counterpart, Rhode Island Rule of Evidence 1003 provides that:

A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

So, under what circumstances would it be unfair to admit a duplicate in lieu of the original? And what is the proponent to do if he is trying to introduce a duplicate under such circumstances? The answer can be found in the recent opinion of the Supreme Court of Rhode Island in State v. Grullon, 2009 WL 4722264 (R.I. 2009).

In Grullon, William Grullon appealed from his convictions for two counts of possession with intent to distribute cocaine and one conviction of conspiracy to violate Rhode Island’s Uniform Controlled Substances Act. The evidence presented at trial established, inter alia, the following:

On February 18, 2005, Kevin Murray, a painting contractor and recovering drug addict, contacted the New Shoreham Police Department to discuss the flow of cocaine on Block Island. Murray met with Police Chief Vincent Carlone and Corporal Paul Deane to arrange a controlled purchase of cocaine from John Grullon, a Block Island resident who Murray had known for several years. The police supplied Murray with a $100 bill to purchase the cocaine. At a meeting at John’s condominium, John agreed to sell Murray a small amount of cocaine for $60, which John retrieved from the hemline of a curtain covering a sliding glass door. Murray paid John with the $100 bill and received $40 in change plus a bag of cocaine.

To prove this transaction at trial, “the state offered into evidence a photocopy of the front side of the $100 bill that Chief Carlone testified he provided to Murray on February 18, 2005, so that Murray could purchase cocaine from John.” Grullon’s objection to this evidence was twofold. First, he claimed that the copy was inadmissible because “the state could have produced the original $100 bill by tracking it down through its serial number[, but] it failed to do so.” Second, Grullon “argued that the photocopy failed to qualify as a duplicate because only one side of the bill was copied.”

The trial court overruled these objections, and the Supreme Court of Rhode Island later agreed. Why? Well, under the Best Evidence Rule, Rule 1002, the prosecution preliminarily had to produce the original, which it did not do. But, under Rule 1003, it was entitled to produce a duplicate. The problem with its duplicate was that Rule 1003(2) states that a duplicate is not admissible to the same extent as an original if “in the circumstances it would be unfair to admit the duplicate in lieu of the original.” This was problematic because

[u]nder this exception, courts consistently find that a duplicate is inadmissible when the proponent offers a duplicate that fails to reproduce important or critical parts of an original, and the opponent establishes that the remainder is needed for some purpose such as cross-examination. Colin Miler, 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, 162 (2008).

Thus, the prosecution’s partial photocopy did not qualify for admission under Rule 1003. But, under Rhode Island Rule of Evidence 1004,

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if–

(1) Originals Lost or Destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or

(2) Original Not Obtainable. No original can be obtained by any available judicial process or procedure; or

(3) Original in Possession of Opponent. At a time when an original was under the control of the party against whom offered, the party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and the party does not produce the original at the hearing; or

(4) Collateral Matters. The writing, recording, or photograph is not closely related to a controlling issue.

According to the Rhode Island Supremes, the prosecution satisfied either Rhode Island Rule of Evidence 1004(2) or (3) because

It may be that the original $100 bill Murray used to purchase cocaine from John on February 18, 2005, was not obtainable either because it remained in John’s possession, or it may be that the bill was in general circulation and not obtainable by any judicial process.

Thus, the court found that the prosecution could prove the contents of the $100 bill through “other evidence,” such as the partial photocopy. This reinforces a lesson that I always tell my Evidence students, which is that a party can almost always find a way to satisfy the Best Evidence Rule (barring bad faith). The only question usually is how the party will satisfy the Best Evidence Rule.

-CM