574 F.Supp.3d 979
N.D. Okla.2021Background:
- Defendant Travis Carl Condry is charged with one count of aggravated sexual abuse by force in Indian country and admitted recording three short videos of the incident on his phone.
- Claremore police could not directly copy the videos from Condry’s phone; with his consent they used a police-issued phone to video-record (rerecord) the original videos while they played on Condry’s phone.
- At the pretrial conference Condry stated he no longer had the original videos because he obtained a new phone after the incident.
- Gov’t seeks to admit the police phone rerecording at trial; Condry moved in limine to exclude it as violating the best-evidence rule (arguing the rerecording cannot be shown to be exact copies).
- The Court reviewed the rerecording, found the images and audio clear, and heard that officers and the alleged victim can authenticate the recording.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility as a duplicate under Fed. R. Evid. 1003 | The rerecording is a photographic/electronic duplicate that accurately reproduces the originals and can be authenticated by officers and the victim | A "video of a video" is not an acceptable duplicate and it is impossible to verify exactness or lack of tampering | Admitted under Rule 1003: Court finds rerecording accurately, authentically, and trustworthily reproduces the originals; defendant failed to show tampering |
| Who bears burden on alteration/authentication | Gov't must lay foundation (witness testimony) to show authenticity; once done, burden shifts to defense to show inaccuracy | Gov’t must prove absence of alteration; defense contends gov’t cannot adequately prove exactness | Court: Proponent (Gov’t) met foundation; burden shifts to Condry to show tampering; Condry offered no specific evidence of alteration, so admissibility stands; chain-of-custody issues go to weight, not admissibility |
| Admissibility under Fed. R. Evid. 1004(a) and (c) (originals unavailable) | 1004(a): originals were lost when Condry changed phones so originals not required; 1004(c): Condry had control, was on notice, and failed to produce originals | Condry argues gov’t could have forensically obtained originals and disputes notice; contends issues affect admissibility/weight | Court: 1004(a) satisfied (originals lost, no bad faith by Gov’t). 1004(c) not preliminarily resolved as notice is a credibility question for the jury; but admission unnecessary because Rule 1003 suffices |
Key Cases Cited
- United States v. Chavez, 976 F.3d 1178 (10th Cir. 2020) (interpreting Rule 1002 best-evidence rule and emphasizing courts must apply Rule 1002's plain meaning)
- Warger v. Shauers, 574 U.S. 40 (2014) (discussing Rule 1002's plain meaning and exclusions)
- United States v. Mills, 194 F.3d 1108 (10th Cir. 1999) (alteration of recording affects admissibility only if it materially affects accuracy; jury assesses defects)
- United States v. Lepanto, 817 F.2d 1463 (10th Cir. 1987) (proponent need not prove absence of tampering; defendant must show tampering to exclude evidence)
- United States v. Johnson, 977 F.2d 1360 (10th Cir. 1992) (affirming Lepanto on custody and tampering burden)
- United States v. Cardenas, 864 F.2d 1528 (10th Cir. 1988) (chain-of-custody and defects generally go to weight, not admissibility)
- United States v. Brewer, 630 F.2d 795 (10th Cir. 1980) (reasonable probability standard for absence of material alteration)
- United States v. Seifert, 351 F. Supp. 2d 926 (D. Minn. 2005) (rerecordings may be duplicates if they accurately reproduce originals)
- United States v. Beeler, 62 F. Supp. 2d 136 (D. Maine 1999) (rerecordings by electronic devices qualify as duplicates when they accurately reproduce original images)