As long as a proper foundation is establish, a party may introduce photographs of tangible objects (a box of ammunition, identification cards with the defendant’s name, and an electronic scale), which had been seized and destroyed before trial, instead of the objects themselves, in United States v. Blaylock, 535 F.3d 922 (8th Cir. 2008) (No. 07-2608) (per curiam)
In presenting a case at trial, often trial counsel makes strategic choices on the best way to introduce evidence. Is a photograph of an area better than testimony? It may depend on how good the photograph or testimony is. The options in introducing evidence were noted in a drug case where the tangible objects were no longer available at trial.
In the case, defendant Blaylock was arrested after he sold $20 worth of crack cocaine to an undercover officer. After other contacts with the defendant, a search warrant was executed at the defendant’s house where officers seized “a box of nine millimeter ammunition, a driver’s license and a social security card bearing Blaylock’s name, and an electronic scale. Officers photographed and cataloged the seized evidence.” Blaylock, 535 F.3d 925. The defendant was arrested after weapons and cocaine were located in his car. Before trial, the seized objects had been destroyed. The defense moved to exclude the testimony and photographs of the objects, under the Best Evidence which was overruled. The officers who participated in the search testified about the items they seized and photographs of the items were introduced. After the defendant was convicted, he challenged the admission of the photographs and testimony in lieu of the items.
The Eighth Circuit affirmed the admission of the photographs of the items seized in the search. The claim that the Best Evidence Doctrine, under FRE 1002, precluded the evidence was “misplaced”. As the circuit noted, “Nothing in the Federal Rules of Evidence prohibits the government from relying upon testimony from officers who seized items during a search, instead of introducing the items themselves. Likewise, provided the proper foundation is laid, the government may introduce photographs of tangible objects instead of the objects themselves. Thus, it was well within the district court’s discretion to allow the evidence.” Blaylock, 535 F.3d 928. (citation omitted).
Clearly, reliance on FRE 1002 was misguided. FRE 1002 establishes a preference for an original writing, recording or photograph to prove its content unless an applicable exception applies. The Blaylock case also highlights the choices that trial counsel may make in presenting evidence so long as a sufficient foundation is established.
