Best Evidence – Writings, Recordings and Video Evidence

diligentIn many Chester County criminal cases evidence against the accused comes in the form of writings, recordings or video evidence (surveillance videos). For example, a theft or retail theft case where the evidence of the theft was only observed on video. During a preliminary hearing or trial, when certain requirements are met, the prosecution in a case must produce the actual original (or genuine copy) of the writing, recording or video that shows an element of the crime when no witness observed the occurrence that is depicted in it. A skilled criminal defense attorney must be able to understand the rules of evidence and use them correctly in order to properly defend an individual accused of a crime. The following is a brief introduction into the “best evidence rule”, as it is known, and how it impacts a criminal case when evidence of an element of a crime is documents in writing, recording or on videotape.  If you believe your case involves anything discussed in this overview – Call Mike DiCindio directly for a free consultation to speak about your case.  

The general rule in Pennsylvania is that when the contents of a writing, recording, or photograph are attempted to be proven, the offering party is required to produce the original into evidence. The official comment to Rule 1002 states that this is not a rule that applies to every document, but instead only to those that have material terms. Comment Rule 1002. The this “requirement of the original” rule is synonymous to the common law “best evidence” rule. Best evidence rule is controlling only if the terms of writing must be proved to make a case or provide a defense.

While originally, the “best evidence” rule in Pennsylvania only applied to writings alone, the rules of evidence have expanded the application of the best evidence rule to encompass many more mediums. Now included in the expanded applicability of the rule are recordings (letters, words, or numbers or the equivalent whether handwritten, typed or copied) and photographs (x-rays, videotapes, and motion pictures)

The literal “original” need not be produced. The rules now provide that a duplicate may be entered to prove the original’s contents “to the same extent as the original” unless there is a genuine question as to the originality of the original, or if it would be unfair to introduce the copy in lieu of the original. Pa. R. Evid. 1003.

The Comment to Pa. R. Evid. 1003 provides insight into the history of not allowing copies of the original. The Comment states:

under the traditional best evidence rule, copies of documents were not routinely admissible. This view dated back to the time when copies were made by hand copying and were therefore subject to inaccuracy. On the other hand, Pennsylvania courts have admitted copies made by techniques that are more likely to produce accurate copies. For example, when a writing is produced in duplicate or multiplicate each of the copies is treated as admissible for purposes of the best evidence rule.

Comment Pa. R. Evid. 1003; see also, Brenner v. Lesher, 332 Pa. 522, 2 A.2d 731 (1938); see also, Pennsylvania Liquor Control Bd. v. Evolo, 203 A.2d 332 (Pa. Super. 1964).

Under Rule 1004 there are four times when other evidence may be entered in order to prove the contents of the original. (1)If the original is lost or destroyed unless proponent destroyed them in bad faith, (2) the original is not obtainable through any judicial process or procedure, (3) opponent has possession of the original and is put on notice of the intended introduction but still does not produce, and (4) if writing, photo or recording being entered is a collateral matter. Rule 1004(1)-(4) (emphasis added).

Of crucial importance in determining whether the best evidence rule applies is whether what is contained in the evidence is an element of the offense. In Fisher the Commonwealth’s proof of the elements of the offenses charged (assault, endangering the welfare of a child, and possession of an instrument of crime) depended on the victim’s testimony, not on the defendant’s messages left on his fiancés voicemail. Commonwealth v. Fisher, 764 A.2d 82 (Pa. Super. 2000). The voicemails were a mix of emotional conveyances left on a voicemail system, and subsequently recorded onto a hand-held tape recorder (the originals on the answering machine were subsequently deleted). The court found these recordings to be admissible because they did not provide evidence which established the fundamental components of any of these offenses and they were properly authenticated.

In Townsend, a confession was found to not be an element of a crime. In the prosecution for aggravated assault, admission of testimony from police officer, who was present and heard defendant’s confession, as to the contents of defendant’s written confession, and officer’s reading of portions of the confession verbatim; the contents of the confession were not elements of the crime, but rather were part of the evidence chosen to prove defendant committed the crime. Com. v. Townsend, 747 A.2d 376 (Pa. Super. 2000)

The best evidence rule is not implicated just because evidence is relevant; the rule applies where the writing itself is necessary to that which must be proved. “The best evidence rule is controlling only if the terms of a writing must be proved to make a case or provide a defense.” Warren v. Mosites Construction Co., 253 Pa.Super. 395, 402, 385 A.2d 397, 400 (1978); see also Commonwealth v. Harris, 719 A.2d 1049, 1051 (Pa.Super.1998). While the contents of the confession in Townsend made for compelling evidence for the Commonwealth, the court found that the Commonwealth did not need to prove those contents in order to establish the elements of its case. The contents were not an element of the crime; they were part of the evidence the Commonwealth chose to present to prove appellant did what was alleged in the charging documents. Com. v. Townsend, 747 A.2d 376 (Pa.Super. 2000).

In Lewis, two Commonwealth witnesses were called. One was a store employee, who testified to watching a shoplifting as it occurred; the other was a policeman called to the scene, who only watched the tape but testified to its contents. The latter’s testimony was held subject to the best evidence rule, as the contents of the tape were the very acts of the accused, the direct depiction of that which occurred. However, the employee’s testimony was not complained of-he had direct knowledge, and could not be rendered incapable of direct testimony simply because the things he saw were taped and the tape lost. Commonwealth v. Lewis, 424 Pa.Super. 531, 533-35, 623 A.2d 355, 357 (1993).


***This blog is made available by the law firm publisher for educational purposes and to provide general information, not to provide specific legal advice.  By reading, you understand that there is no attorney client relationship between you and the publisher. The blog should not be used, nor is it meant to be, as a substitute for competent legal advice from a licensed professional attorney.***

The Importance of the Preliminary Hearing

chester county criminal lawyer

Contact Criminal Defense Lawyer Mike DiCindio to discuss your case today

             When someone is arrested in Pennsylvania and charged with state misdemeanor or felony crimes, the first court date that they will have to appear at is called the preliminary hearing (excluding the Philadelphia Court system).   This will be scheduled in the magisterial district court that covers the area where the alleged criminal offense occurred. At the preliminary hearing, the accused has the right to be represented by counsel. Therefore, he can retain private counsel or if he cannot afford an attorney, a public defender will be appointed to represent him. The preliminary hearing is critical for many reasons.

            The preliminary hearing serves as a sort of gate-keeper to the criminal system. At the preliminary hearing, the Commonwealth has the burden of proving 1) the elements of each crime that allegedly occurred, 2) that the crime occurred in the county in which it is being prosecuted, and 3) that the accused is the person who committed it.   All of this must be shown by “prima facie” evidence. This is a low burden and can be equated with “more likely than not”. If the Commonwealth meets the burden, the charges are “held” for court, and the case will move to the Court of Common Pleas to be assigned for trial. If the burden is not met on some or all of the charges, those charges or the entire case will be dismissed.  An example of this would be the Commonwealth not proving the element of “driving”  in a DUI or drunk driving case.  Or, not proving the element of “possessing” a drug or controlled substance in a drug case.

            The accused does not have all of the same rights that are available at trial at a preliminary hearing – still a skilled attorney can maximize the rights that are afforded to the accused.   They can thoroughly attack the elements of the crime through legal argument and cross-examination. There is a limited right to cross-examination at a prelim, but the elements of the crime are allowed to be explored. Next, they can lock in statements of a witness through cross-examination.   Finally, they can argue the law in order to show the deficiencies in the Commonwealth’s evidence.

            This is not exhaustive. There are numerous considerations that go into a successful defense at a preliminary hearing. It is the starting point to having a strong strategy moving forward in a case and can have a major impact on how the case proceeds. If you or someone you know has been charged with a crime in Pennsylvania and has a preliminary hearing scheduled, call Mike DiCindio directly and schedule your free consultation.

***This blog is made available by the law firm publisher for educational purposes and to provide general information, not to provide specific legal advice.  By reading, you understand that there is no attorney client relationship between you and the publisher. The blog should not be used, nor is it meant to be, as a substitute for competent legal advice from a licensed professional attorney.***