The best evidence rule is codified in the Federal Rules of Evidence. Rule 1002 provides that, unless otherwise provided by the federal statutes, an original recording is required in order to prove its contents. At the same time, Rule 1003 states that the duplicate of the original recording is equally admissible unless there are genuine doubts as to the authenticity of the original piece of evidence. Rule 1004 allows not to require the original evidence if it is impossible to obtain the original by any available judicial process. The court may also admit the summary of the original evidence, as well as the party`s testimony as to its contents. (Fed. R. Evid)
In an earlier day, the procedures related to discovery were limited. The best evidence rule provided guarantees against any mistakes or inaccuracies of the evidence by requiring that the parties present the original pieces of evidence – documents, recordings, photographs, etc. The following rule induced the parties to present the best evidence they had in order to defend their claim.
The significant changes in the discovery process, particularly the enlargement of the scope of discovery, reduced the significance of the rule. The Federal Rules of Evidence reflect these changes. Although the best evidence rule has been formally preserved, it is no longer as strict as it used to be. The courts are prescribed to admit secondary evidence that proves the contents of the original evidence. The parties can present copies or “duplicates” of the original evidence which must be accurate enough to eliminate the possibility of error.
The issue of admissibility of wiretapped conversations as evidence in court was first discussed in Olmstead v. United States. In this case, the police officers presented the incriminating evidence which was obtained without the court`s approval, through the interception of private telephone calls between the defendant and his accomplices. The issue to be decided was whether the evidence obtained by means of the wiretap violates the guarantees of the Fourth Amendment. The court ruled that wiretapping of private phone calls does not violate the Fourth Amendment. Wiretapping does not constitute “search and seizure” because the Fourth Amendment refers to the physical examination of a person`s home and property, not the privacy of telephone conversations. Thus the law enforcement was allowed to wiretap the telephones of suspects, and the evidence, obtained as the result of the wiretapping, became admissible in court. (Olmstead v. United States, 1928)
The problem of the admissibility of such evidence was raised again in Nardone v. United States. In the following case, the Court has radically changed its view on the problem of the wiretapped evidence. It was held that Federal Communications Act prohibited using the evidence obtained as a result of surreptitious wiretapping. The Court found that any evidence obtained illegally is inadmissible in court and the use of such evidence by the prosecution should be limited. The holding also contained a phrase which later became well-known in the legal doctrine - “the fruit of the poisonous tree”. Fruit of the poisonous tree is a metaphor that explains a famous rule: the evidence is not admissible if it was obtained illegally. Literally, it means that if the tree, or source of evidence, is poisonous, than it can give nothing but tainted fruits - pieces of evidence. (Nardone v. United States, 1939)
In Goldman v. United States, the Court discussed the scope of the Fourth Amendment. Basically, the Court affirmed its prior holding in Olmstead v. United States by stating that Fourth Amendment applies only in cases of physical intrusion on one`s privacy and examination of homes and property.
In this case, the police officers used a special device called “detectaphone” that is attached to the wall of the adjoining room in order to overhear the conversations in the neighboring room. The Court ruled that this method was not illegal because the officers did not physically intrude to the room in order to obtain the evidence. The resulting evidence did not violate the Fourth Amendment and was admissible in the federal court.
The Court in Berger v. New York held that the telephone conversations are protected by the Fourth Amendment. The use of special devices in order to record the conversations constitutes a “search” in the meaning of the Fourth Amendment. Therefore, the law enforcement must follow required procedural safeguards of the amendment in order to eavesdrop on the suspects. Based on this holding, the Court invalidated the New York statute which allowed to use the wiretap. (Berger v. New York, 1967)
The question of applicability of the Fourth Amendment to the private conversations was finally resolved in Katz v. United States. It was held that the use of the wiretap constitutes a “search” within the meaning of the Fourth Amendment even if there is no physical intrusion on privacy and regardless where the telephone conversation takes place, in public place or at home. If the person reasonably expects that his telephone conversation remains in private, then, regardless of the location, the conversation becomes protected against unreasonable search and seizure. And in order to eavesdrop on such conversations, the police must follow procedural safeguards of the Fourth Amendment. (Katz v. United State, 1967)
Today, the Fourth Amendment protects the individuals from any violation of their privacy whether it is a physical intrusion, wiretapping of the private conversations or the use of other surveillance devices. To acquire any evidence from the private conversations, the law enforcement first must follow the procedures of the Fourth Amendment, namely obtain a judicial warrant authorizing the use of the wiretap. If, however, the police fails to follow that procedure and installs the wiretap without the judicial approval, all evidence, including the audio recordings of the conversation, will be inadmissible in court in virtue of the exclusionary rule also known as “the fruit of the poisonous tree’ doctrine. In United States v. Mckeever, the Court outlined factors that must be considered before the audio recordings of the wiretapped conversations are admitted into evidence: the recording device was capable to catch the conversation offered as evidence, the operator of the device was competent, the recording is authentic, no changes or additions have been made in the recording, the speakers can be clearly identified, the conversation was not induced and was made voluntarily. (United States v. Mckeever, 1958)
Nowadays, the audio recording is a common form of evidence in criminal trial. Nevertheless, the acquisition of such evidence is connected with the necessity to follow the constitutional provisions that protect the right for privacy. The private conversations can be intercepted only with the judicial approval. Absent such approval, all evidence derived from the wiretapped conversations may fall under the exclusionary rule making this evidence inadmissible in court. If, however, all of the proceedings were followed and the warrant was obtained, the evidence derived from the wiretapped conversations, primarily the audio recordings, can be used as a proof of the suspect`s guilt and will be admitted in court for the jury to consider. According to the codification of the best evidence rule, the prosecution need not present the original tapes but, instead, can present their copies. At the same time, the prosecution must prove that the original tapes as well as the copies are authentic. Moreover, the prosecution must prove that no changes or additions have been made in the recording and the speakers on the tape are clearly identified.
The modern interpretation of the best evidence rule allows judges to accept the copies of the original evidence provided that those copies meet certain requirements. Most likely, the judge will accept the copies of the lost tapes if there is no doubt that the original recording is authentic. Moreover, the recording must meet the requirements outlined in United States v. Mckeever in order to be admitted into evidence.
References
- Fed. R. Evid 1002 – Rule 1002 of the Federal Rules of Evidence.
- Fed. R. Evid 1003 – Rule 1003 of the Federal Rules of Evidence.
- Fed. R. Evid 1004 – Rule 1004 of the Federal Rules of Evidence.
- Olmstead v. United States, 277 U.S. 438 (1928)
- Nardone v. United States, 308 U.S. 338 (1939)
- Goldman v. United States, 316 U.S. 129 (1942)
- Berger v. New York, 388 U.S. 41 (1967)
- Katz v. United States, 389 U.S. 347 (1967)
- United States v. McKeever, 169 F. Supp. 426 (S.D.N.Y 1958)
