Testimony Without Introduction Of The "Original" Printout Of Database Search Did Not Violate Best Evidence Rule (FRE 1002)

In prosecution for being a removed alien found in the United States, admitting border agent's testimony that his search of the Computer Linked Application Information Management System (“CLAIMS”) database using defendant's name, alien number, and date of birth, found no record that the defendant filed a Form I-212 for admission to the country after having been previously removed; deciding as a matter of first impression that testimony regarding a computer database search which revealed no record of a matter does not violate FRE 1002 when it is offered without the production of an "original" printout showing the search results, in United States v. Diaz-Lopez, __ F.3d __ (9th Cir. Nov. 9, 2010) (No. 09-50604)

In a recent case, the Ninth Circuit had an opportunity to explore the application of FRE 1002, which it noted "codifies a principle long referred to at common law as the 'best evidence rule.'" In considering the case, the circuit identified what it characterized as a "persuasive[] summar[y]"of the rule as stated by McCormick's Evidence, noted the trend of the circuits with regard to the scope of the rule, and as a matter of first impression, considered whether "testimony that a search of a computer database revealed no record of a matter violates the best evidence rule when it is offered without the production of an 'original' printout showing the search results." The Ninth Circuit answered that it did not. Diaz-Lopez, __ F.3d at __.

In the case, defendant Diaz-Lopez was charged with being a removed alien found in the country without permission. At defendant's bench trial, a border agent "testified that he had performed a search of the CLAIMS database using Diaz's name, alien number, and date of birth, and found no record of Diaz having filed a Form I-212," which would have granted admission to the country after one has been previously removed. The defendant conceded "that this testimony is governed by Federal Rule of Evidence FRE 803(10), an exception to the hearsay rule allowing testimony to prove the absence of a public record." Diaz-Lopez, __ F.3d at __.

However, at trial and on appeal, the defendant contended that the agent's testimony on the results of the CLAIMS database search violated Federal Rule of Evidence 1002, the "best evidence" rule. The defendant contended on appeal that the prosecution "was required to produce an 'original' to show that the CLAIMS database did not contain any record of Diaz having filed an I-212. When records or data are stored 'in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an ‘original.’ Diaz argues that the government should have introduced a printout of the search results from the CLAIMS database rather than testimony from the agent performing the search." Diaz-Lopez, __ F.3d at __. The circuit rejected this claim.

In its opinion, the Ninth Circuit noted that the "modern doctrine" of the best evidence rule "appears to be a rule of evolving scope (applying to ever-increasing varieties of media) with less-frequent application (owing to the easy availability of exact duplicates, modern discovery procedures, and exceptions to the federal version of the best evidence rule)." In this connection, the circuit cited the writings of McCormick on Evidence, to properly express the "animating purpose of the best evidence" rule:

"[P]resenting to a court the exact words of a writing is of more than average importance, particularly in the case of operative or dispositive instruments such as deeds, wills or contracts, where a slight variation of words may mean a great difference in rights. In addition, it is to be considered (1) that there has been substantial hazard of inaccuracy in some of the commonly utilized methods of making copies of writings, and (2) oral testimony purporting to give the terms of a writing from memory is probably subject to a greater risk of error than oral testimony concerning other situations generally. The danger of mistransmitting critical facts which accompanies the use of written copies or recollection, but which is largely avoided when an original writing is presented to prove its terms, justifies preference for original documents.
Diaz-Lopez, __ F.3d at __(quoting 2 George E. Dix et al., McCormick on Evidence § 232 (Kenneth S. Broun, ed., 6th ed.2009)).


In applying the rule, the circuit noted that its foundation was based on two elements. First, whether the evidence "falls within the scope of the best evidence rule, because the database is a “[w]riting[ ] or recording[ ] ... set down by ... magnetic impulse ... or electronic recording, or other form of data compilation.” Diaz-Lopez, __ F.3d at __ (quoting Fed.R.Evid. 1001). The circuit agreed with the defendant that the CLAIMS database was within FRE 1002's scope.

The circuit rejected the defendant's contention that FRE 1002 had been violated because a second foundational element was not satisfied: "whether the evidence was introduced '[t]o prove the content of a writing, recording, or photograph.'” The circuit concluded that it was not. "The agent's testimony that he searched the database and found no record of [defendant] Diaz having filed an I-212 [wa]s similar to testimony that an event did not occur because relevant records contain no mention of it. This negative type of testimony is usually held not to constitute proof of contents and thus not to require production of records.” Diaz-Lopez, __ F.3d at __ (quoting Dix et al., McCormick on Evidence § 234 (Kenneth S. Broun, ed., 6th ed.2009) (emphasis in original)).

The Ninth Circuit emphasized the significance of this second foundational element of FRE 1002. It noted that the advisory committee's note to Rule 1002 explicitly "states that the best evidence rule does not apply to 'testimony that books or records have been examined and found not to contain any reference to a designated matter.'” The Ninth Circuit conceded that it had not "passed explicitly on this issue, but other jurisdictions are in accord." Among those cited by the Ninth Circuit included:

  • Fifth Circuit - McDonold v. United States, 200 F.2d 502, 504 (5th Cir. 1953) (no error where a witness testified that he examined the books and records of the company and there was no record of payment by the defendant)
  • Eighth Circuit - United States v. Jewett, 438 F.2d 495, 497-98 (8th Cir. 1971) (there was no error in admitting testimony that a search of books and records revealed no transfer of title to a property)
  • Tenth Circuit - Aiuppa v. United States, 393 F .2d 597, 602 (10th Cir. 1968) (no error in allowing two employees to testify that they searched government records in their regions and found no record that defendant had applied for permission to possess more than the statutory limit of mourning doves), vacated on other grounds by Giordano v. United States, 394 U.S. 310 (1969)

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