In cocaine and firearm prosecution, the model number inscribed on a safe in which drugs were discovered was not a "writing" under the FRE 1002 Best Evidence Rule but was treated as a chattel; additionally, “[t]he numeric inscription was not ‘critical’ to the case ...; instead, the safe was merely collateral evidence of the crime,” in United States v. Buchanan, 604 F.3d 517 (8th Cir. May 4, 2010) (No. 09-2569)
By its terms, FRE 1002 applies only to "a writing, recording, or photograph." The rule, often referred to as the Best Evidence Rule, requires that to prove the content of a writing, an original is required. FRE 1002. FRE 1001 defines for purposes of FRE 1002 that the term writings "consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing ... or other forms of data compilation." The term "original" means "the writing ... itself or any counterpart intended to have the same effect by a person executing or issuing it." FRE 1001 (1), (3).
The cases occasionally describe a writing that appears on chattel, which seems to confound the application of the Best Evidence Rule. See, e.g., United States v. Yamin, 868 F.2d 130, 134 (5th Cir. 1989) (in counterfeit products case, testimony describing trademarks inscribed on the watches was appropriate and there was no need to produce the watches themselves because the inscribed trademark is “more like a picture or a symbol than a written document” and because the trademark was “both a chattel and a writing” that the trial judge could treat as chattel, to which Best Evidence rule does not apply). In a recent case, the Eighth Circuit further explored the Best Evidence Rule as it pertained - or failed to pertain - to chattel, rather than a writing.
In the case, defendant Buchanan was charged with possession with intent to distribute cocaine base and to distribute a product containing cocaine along with a firearm charge. At trial, the court allowed law enforcement to testify about the "2010" inscription on the safe which matched the number on a key held by the defendant. This testimony helped link the defendant to the safe. "The government ... alleged that the key matched the safe in which the drugs were discovered. Accordingly, the officers' testimony concerning the 2010 inscription was not hearsay, as it was not offered for the truth of the matter asserted; instead, it was offered as an identifying characteristic that was also contained on the key that Buchanan possessed and the manual inside the safe. Buchanan contend[ed] that the admission of such testimony ... violates the best evidence rule." Bu chanan, 604 F.3d at 521.
The Eighth Circuit rejected the defendant's contentions. According to defendant Buchanan, the circuit noted, "the assertion within the interior of the safe that it was a '2010' model and that the key with the inscription '2010' belonged to the safe is clearly a 'writing' or 'recording' under Federal Rule of Evidence 1002; therefore, the safe itself-which officers admittedly did not seize-should have been introduced into evidence. The prosecutor differed, arguing that that the best evidence rule 'is inapplicable because the safe was not a "writing" but instead a 'chattel.'”
As the Eighth Circuit explained:
"Here, the district court appropriately treated the safe as chattel. The policy considerations behind the best evidence rule ... are not implicated. The writing -- '2010' -- was simple, meaning that little danger existed that the witness would inaccurately remember the terms of the 'writing' on the safe. And, as the district court noted, the likelihood of fraud was small because the government also admitted into evidence the safe's instructional manual, which was found inside the safe and also bore the number '2010.'Buchanan, 604 F.3d at 524.
"Moreover, as the district court explained, 'the testimony regarding the inscription on the safe was only a small part of the substantial evidence presented against Buchanan.” The numeric inscription was not 'critical' to the case against Buchanan; instead, the safe was merely collateral evidence of the crime."
As the Buchanan case demonstrates, generally the Best Evidence Rule does not apply to physical objects. The circuit emphasized that admission of objects at trial was not required by the Best Evidence rule, no matter how crucial it may seem to the case. The court in Buchanan quoted from an earlier case applying FRE 1002, United States v. Duffy, to describe these limitations:
The 'Rule' is not, by its terms or because of the policies underlying it, applicable to the instant case. The shirt with a laundry mark would not, under ordinary understanding, be considered a writing and would not, therefore, be covered by the “Best Evidence Rule[.”] When the disputed evidence, such as the shirt in this case, is an object bearing a mark or inscription, and is, therefore, a chattel and a writing, the trial judge has discretion to treat the evidence as a chattel or as a writing. In reaching his decision, the trial judge should consider the policy-consideration behind the “Rule[.”] In the instant case, the trial judge was correct in allowing testimony about the shirt without requiring the production of the shirt. Because the writing involved in this case was simple, the inscription “D-U-F [,”] there was little danger that the witness would inaccurately remember the terms of the “writing[.”] Also, the terms of the “writing” were by no means central or critical to the case against Duffy. The crime charged was not possession of a certain article, where the failure to produce the article might prejudice the defense. The shirt was collateral evidence of the crime. Furthermore, it was only one piece of evidence in a substantial case against Duffy.
United States v. Duffy, 454 F.2d 809, 812 (5th Cir. 1972) (pre-FRE).
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