Best Evidence Rule Applied To Global Positioning System ("GPS") Content

Ninth Circuit reverses an importation conviction based on the admission of testimony about GPS data which violated the best evidence rule; case demonstrated the application of the best evidence rule under FRE 1002, in United States v. Bennett, 363 F.3d 947 (9th Cir. 2004)

The Best Evidence Rule under FRE 1002, which can be misapplied, requires “the original writing, recording, or photograph” to be introduced when offered to “prove the content of a writing, recording, or photograph,” unless some other exception governs. A Ninth Circuit case demonstrated application of this rule to global positioning system ("GPS") information.

Case Background

The case involved marijuana importation by boat from Mexico into Southern California. An investigation revealed that the defendant’s boat, which was stopped at sea, contained a marijuana shipment. Defendant Bennett was charged with two counts, importing marijuana and possessing with intent to distribute marijuana. At trial, to prove the importation count, the government was required to show that the marijuana was imported into the United States from "any place outside thereof." 21 U.S.C. § 952(a). Since the boat was first seen in U.S. waters traveling away from Mexican waters, the government offered the testimony of U.S. Customs Officer Chandler who “testified that he discovered a global positioning system ("GPS") while searching Bennett's boat and that the GPS revealed that Bennett's boat had traveled from Mexican waters to San Diego Bay.” Bennett, 363 F.3d at 952. As explained at trial:

The GPS came with a "backtrack" feature that graphed the boat's journey that day. Chandler testified that the backtrack feature mapped Bennett's journey from Mexican territorial waters off the coast of Rosarito, Mexico, to the Coronado Islands and then north to San Diego Bay. Less significantly, Chandler also retrieved "way points" — navigational points programmed into the GPS to assist the captain in navigating to a particular destination. Chandler testified that within the previous year, someone had programmed way points into the GPS that included points in Mexican waters. Chandler acknowledged on cross-examination that he had not taken possession of the GPS device itself or obtained any record of the data contained therein.
Bennett, 363 F.3d at 952.

On cross-examination, the officer acknowledged that “he had nothing other than his testimony to support his assertions about the GPS's contents.” Bennett, 363 F.3d at 954. The defendant objected to this testimony under the best evidence rule and hearsay grounds, which was overruled. Following his conviction on both counts by the jury, he challenged the admission of the GPS testimony on appeal.

Reversing Conviction On Appeal

The Ninth Circuit agreed that the best evidence rule was violated and reversed the importation count. The circuit explained the operation of the rule to GPS information.

Data Stored In A Computer

First, the circuit noted that a writing may include data stored in a computer:

The best evidence rule provides that the original of a "writing, recording, or photograph" is required to prove the contents thereof. Fed. R. Evid. 1002. A writing or recording includes a "mechanical or electronic recording" or "other form of data compilation." Fed. R. Evid. 1001(1). Photographs include "still photographs, X-ray films, video tapes, and motion pictures." Fed. R. Evid. 1001(2). An original is the writing or recording itself, a negative or print of a photograph or, "[i]f data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately." Fed. R. Evid. 1001(3).
Bennett, 363 F.3d at 952.

Proving The Contents

Under the best evidence rule, if the government was offering to “prove the content of a writing,” then the original was required (or a duplicate under FRE 1003). As the circuit noted:

The rule's application turns on "whether contents are sought to be proved." Fed. R.Evid. 1002 Advisory Committee's note. "[A]n event may be proved by nondocumentary evidence, even though a written record of it was made." Id. Accordingly, the rule is inapplicable when a witness merely identifies a photograph or videotape "as a correct representation of events which he saw or of a scene with which he is familiar." Id.; see also United States v. Workinger, 90 F.3d 1409, 1415 (9th Cir. 1996) ("[A] tape recording cannot be said to be the best evidence of a conversation when a party seeks to call a participant in or observer of the conversation to testify to it. In that instance, the best evidence rule has no application at all."). However, the rule does apply when a witness seeks to testify about the contents of a writing, recording or photograph without producing the physical item itself — particularly when the witness was not privy to the events those contents describe. See Fed. R. Evid. 1002 Advisory Committee's note.
Bennett, 363 F.3d at 953.

The Ninth Circuit then explained this application of the rule to the facts of the case:

That is the nature of Chandler's GPS testimony here and why his testimony violated the best evidence rule. First, the GPS display Chandler saw was a writing or recording because, according to Chandler, he saw a graphical representation of data that the GPS had compiled about the path of Bennett's boat. See Fed. R. Evid. 1001(1). Second, Chandler never actually observed Bennett's boat travel the path depicted by the GPS. Thus, Chandler's testimony concerned the "content" of the GPS, which, in turn, was evidence of Bennett's travels. Fed. R. Evid. 1002. At oral argument, the government admitted that the GPS testimony was offered solely to show that Bennett had come from Mexico. Proffering testimony about Bennett's border-crossing instead of introducing the GPS data, therefore, was analogous to proffering testimony describing security camera footage of an event to prove the facts of the event instead of introducing the footage itself…. Yet the government did not produce the GPS itself — or a printout or other representation of such data, see Fed. R.Evid. 1001(3) — which would have been the best evidence of the data showing Bennett's travels. Instead, the government offered only Chandler's GPS-based testimony about an event — namely, a border-crossing — that he never actually saw.
Bennett, 363 F.3d at 953 (footnote omitted).

The error was not harmless given that the remaining evidence to prove importation was “not overwhelming.” The circuit reversed the importation conviction and affirmed the possession conviction and remanded the case.

The Bennett case provides an example of the application of the best evidence rule to electronic data. Since the contents of the data were being offered, compliance with the best evidence rule was required.

For other posts considering the best evidence rule, see: (1) Applying The Best Evidence Rule; (2) Testimony Without Introduction Of The "Original" Printout Of Database Search Did Not Violate Best Evidence Rule (FRE 1002).


Subscribe Now To The Federal Evidence Review

** Less Than $25 Per Month ** Limited Time Offer **

subscribe today button

Federal Rules of Evidence