Best Evidence

As Wikipedia explains, the best evidence rule is a principle that can be traced back to common law.

In an often-cited eighteenth century decision, an English judge noted that evidence was not admissible unless it was “the best that the nature of the case will allow”. Omychund v. Barker, (1745) 26 ER 15, 33.

According to Wikipedia, the rationale for the rule arose from how documentary evidence was produced in the eighteenth century: “a copy was usually made by hand by a clerk (or even a litigant). The best evidence rule was predicated on the assumption that, if the original was not produced, there was a significant chance of error or fraud in relying on such a copy.”

Though technology is far more advanced, and copies are no longer made by hand, the rule survives. I’m going to use a recent case to show how it applies in an era of digital technology.

The case is Bobo v. State, 2008 WL 2191159 (Arkansas Court of Appeals, 2008). Bobo was convicted of first-degree sexual assault and appealed, challenging the admission into evidence of certain emails. Here, according to the court, are the facts that led to her conviction:

On November 3, 2005, Twilla Frosco checked her email on the family computer. She saw that the email account of her fourteen-year-old son (DF) was open on the screen. She read some of the messages and found . . . exchanges between DF and Bobo, one of DF's former . . . teachers. The messages were sexually explicit. Twilla . . . called her husband, Richard Frosco, who asked [her] to forward the emails to him.

Richard called the prosecutor's office . . . and was referred to . . . Detective Heather McCaslin, who asked [him] to forward the emails to her. . . . [She sent them to] Sergeant James Flynn. . . . [who] issued subpoenas to the internet providers . . . obtained consent to search DF's computer, and secured a warrant to search Bobo's computer.

At trial, DF testified that when he was in eighth grade, Bobo was his math co-teacher. In February 2005, Bobo picked DF up at church and drove him to a loading dock where DF testified they had sexual intercourse in Bobo's vehicle. Afterwards, Bobo drove DF back to church. DF testified that Bobo came to his house a few weeks later while his parents were not home, and they had sexual intercourse again.

Bobo v. State, supra.

On appeal, Bobo argued that the trial court erred in admitting 19 emails allegedly exchanged between her and DF. “Because the original emails from the computers of DF and Bobo no longer exist, she argues that the State failed to properly authenticate the forwarded emails (as there was evidence of tampering and/or altering of them) and that the emails were admitted in violation of best-evidence rules found in Arkansas Rules of Evidence 1001- 1004”. Bobo v. State, supra. According to the court of appeal’s opinion, the emails no longer existed because DF deleted them from “his computer, and Bobo's computer crashed in June 2005.” Bobo v. State, supra.

Since the authentication and best evidence issues were inter-related, the court began with authentication:

Rule 901(a) of the Arkansas Rules of Evidence provides that: `[A]uthentication . . .as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.’ . . . Authentication requirements are satisfied if the trial court . . . concludes that the evidence presented is genuine and, in reasonable probability, has not been tampered with or altered in any significant manner. . . . [E]very possibility of tampering need not be eliminated.

[T]he emails were properly authenticated. DF testified that he either mailed to Bobo or received from Bobo each of the emails in question. Moreover, DF's mother testified that she read the original emails exchanged between DF and Bobo. Bobo admitted to sending emails to DF, and although she denied any of the sexual content of the emails, she admitted that she sent emails to DF with non-sexual content. For example, she admitted visiting with DF via email about her computer problems, his new school, and his girlfriend. She also admitted that she sent him an email telling him that she hoped he did not forget her. All of this non-sexual content was contained in the emails in question.

Further, the State presented evidence confirming that the emails in question were properly addressed to DF's email account and the email account of Bobo and her husband. Sergeant Adam Holland of the Fort Smith Police Department and Michael Parks of the Fayetteville Police Department conducted forensic examinations of DF and Bobo's computer and located the emails in question. The State offered an additional expert witness, Paul Brown, who not only examined the computers but also the server through which the emails traveled. Brown verified that fifteen of the emails sent by Bobo to DF matched a temporary, unique IP internet address for her computer. Despite arguments made by Bobo that the emails could have been tampered with or altered because some of the forwarded emails had no headers, the State's experts concluded that the emails were genuine and that the validity of the emails was not in question.

Bobo v. State, supra.

The court then addressed Bobo’s best evidence issue, which seems a pretty good argument, considering that the originals of the emails had been destroyed before the trial. The court of appeals held, though, that the email printouts introduced at trial were the best evidence of the

emails exchanged between DF and Bobo. Arkansas Rule of Evidence 1002 provides: `To prove the content of a writing . . . the original . . . is required, except as otherwise provided in these rules’. Rule 1004 provides that `t]he original is not required, and other evidence of the contents of a writing is admissible if . . . [a]ll originals . . . have been destroyed, unless the proponent lost or destroyed them in bad faith.’ `If data are stored in a computer . . . any printout or other output readable by sight, shown to reflect the data accurately, is an “original.”’ Ark R. Evid. 1001(3).

The emails . . . were stored in the computers of DF and Bobo. Original emails could not be printed from Bobo's computer because it crashed in June 2005, and could not be printed from DF's computer because he deleted them. . . . [U]nder Rule 1004, because the originals were . . . destroyed, it is permissible to admit . . . printouts of the emails, which were forwarded to other computers, as long as they were shown that they reflect the data accurately. As set forth above, there is sufficient evidence demonstrating that the emails offered into evidence are accurate. Furthermore, the bad-faith exception does not apply because there is no evidence that the State -- the proponent of the emails --in bad faith lost or destroyed the emails.

Bobo v. State, supra. So Bobo lost on this and her other issues, and the court of appeals upheld her conviction. She was sentenced to serve two 6-years of imprisonment, to run consecutively (12 years), so she had an incentive to appeal. I assume she’ll try again with the Arkansas Supreme Court, if possible, but I suspect they’ll agree with this court.

I don’t have a problem with the court’s resolution of the best evidence rule. We’ve come a long way from when copies were made by hand (maybe by parties to the case), and it’s pretty straightforward to substitute a printout or another copy when something’s been destroyed.

What I cannot understand is how DF was able to delete the emails on his computer. Bobo was apparently just really lucky to have had her computer crash a few months before all this came to light. But once DF’s parents and the police discovered that the emails were on his computer, wouldn’t someone have taken steps to preserve them? Imagine what would have happened if DF’s mother had not forwarded the emails to her husband. They might have been destroyed before anyone could make a printout of them . . . which might have jeopardized the case.