The best evidence is the best evidence

Prof. Colin Miller, one of my favorite bloggers on evidence, addresses a best evidence issue raised in People v. Haggerty, No. 129, (N.Y. 2014).

Haggerty was accused of defrauding Mayor Bloomberg. During presentation of the prosecution case they called a witness to testify about the contents of a trust fund through which the fraud was alleged to be done.

For the military defense lawyer an immediate lesson is that the defense failed to object at trial. When litigating a court-martial under the UCMJ, all should be aware that a failure to object to evidence places the appellate military defense lawyer in the difficult position of having to argue harmful plain error. In a footnote to United States v. Rankin, 64 M.J. 348, 351, n.3 (C.A.A.F. 2007), the court noted the numerous objections to documentary evidence citing MRE 602, authenticity, and best evidence. But they were not raised on appeal so the court did not address them. Trial defense counsel should not be dissuaded from objecting. As a military appellate defense counsel I much prefer to have the objections – for obvious reasons.

New York doesn’t have a Code of rules of evidence; but they do follow the federal rule of evidence as to best evidence found in FRE 1002. That rule is the same as found in Military Rule of Evidence 1002, which is applied in a court-martial, prosecuted under the UCMJ. Even though the New York court applied waiver and did not reach the issue Prof. Miller goes on to give his analysis. Prof. Miller concludes that the objection, if made should have been sustained. The issue was who owned the money in the trust – a central issue according to Prof. Miller. The point here being what is the expected testimony about the contents of a trust document, and how can a uninvolved witness testify to those contents without introducing the trust document.

The prosecution argued that the language in the trust document was irrelevant to proving ownership of the funds. Prof. Miller finds that the prosecution could not use [Military] rule of evidence 1004(d) to avoid the issue. Prof. Miller then argues that the prosecution could not use the “independent knowledge” exception found in the best evidence rule. As Prof. Miller points out, it would be impossible for the witness to independently know who owned the funds without the best evidence of the trust and the trust documents.

I have at times used the best evidence rule to object to hearsay testimony about the contents of documents, and even audio-video recordings. So for example it would be, in my view improper for a CID, NCIS, OSI, CGIS, agent to testify about the contents of an audio at which she was not present during the recording. This would be different to testifying about the actual interview of an accused, which was also recorded, or the ubiquitous pretext phone call in military sexual assault cases. In the first scenario there is a hearsay and best evidence objection, in the second the agent was present and heard the statements, thus has knowledge independent of the video to testify about. Another related issue would be something such as an email or text message. The law enforcement agent can’t testify about the contents unless the sender or recipient. You need a different witness who will also testify to authenticity. I would suggest that authenticity is a big deal in regard to emails and texts because of the ease with which they can be spoofed or spoiled (in the context of spoliation of evidence).

In United States v. Jones, 26 M.J. 197, 201 (C.M.A. 1988), the court noted that the military rules of evidence have broadened the scope of the best evidence rule. This is actually good for both sides, as the court in Jones essentially found in finding defense evidence of a videotape improperly excluded.

I found United States v. Hernandez, NMCCA 200501599, 2007 CCA LEXIS 183 (N-M Ct. Crim. App. June 12, 2007)(unpub.), an interesting read generally.