Admitting A Photocopy Under FRE 1003 After The Original Was Destroyed And Unavailable

In counterfeit–check conspiracy scheme, after "the destruction of the original" check, admitting “photocopy of a check which bore an inked fingerprint” of the defendant, which was required to cash the check, based on the failure to show that the destruction of the original document made “it unfair to admit the duplicate” under FRE 1003, in United States v. Ross, _ F.3d _ (6th Cir. Dec. 31, 2012) (Nos. 09-1852, 09-1860)

FRE 1003, as an exception to FRE 1002, allows a duplicate to be admitted to the same extent as an original unless either: (1) a genuine question is raised as to the authenticity of the original, or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. The Sixth Circuit recently considered the application of the rule to a check photocopy.

In the case, five defendants were prosecuted for participating in a conspiracy to utter counterfeit securities in a scheme “to obtain motor vehicles from private sellers by uttering worthless, counterfeit ‘official checks,’ purportedly issued by Comerica Bank . . . to the private owners of the motor vehicles” and then selling the cars to others. In negotiating one check, defendant Burston’s fingerprint as required by the back to cash a check. At trial, the defendant objected that "a photocopy of a check which bore an inked fingerprint that the bank required him to produce before cashing the check" was introduced after the original had been destroyed. After his conviction, on appeal the defendant contested the admission of the photocopy. Ross, _ F.3d at _.

On appeal, the defendant claimed that it was unfair to admit the photocopy since the “destruction of the original prevented Burston from having the check analyzed to determine whether he had personally handled the check, thereby leaving latent fingerprints on it.” Ross, _ F.3d at _. The Sixth Circuit noted that the admission of a duplicate is rarely challenged:

Burston does not cite, nor have we been able to find, a single case in which this Court excluded a copy of a document under Rule 1003. We do not believe this should be the first. Even if Burston’s latent fingerprints were somehow not on the original check (or if someone else’s were), he makes no showing that the inked fingerprint was fraudulent or could not have been fairly matched to him. See United States v. Rose, 522 F.3d 710, 715 (6th Cir. 2008). Moreover, Burston’s accomplice, Dennis Goode, testified that he saw Burston obtain the check and then submit the inked fingerprint before attempting to cash it. The district court did not abuse its discretion in admitting a photocopy of the check.

Ross, _ F.3d at _.

The Ross case highlights the operation of FRE 1003 and the general acceptance of duplicates unless questions about the genuineness of unfairness of admitting a duplicate are presented.

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