News You Can Use: Tenth Circuit addresses the best evidence rule – and says a lot of other interesting stuff along the way

We read this recent 111-page opinion so you don’t have to. This post is long – though not 111-pages long – and we think it’s worth it.

In United States v. Chavez, a divided panel of the Tenth Circuit issued an epic opinion addressing what is popularly known as the best evidence rule – but which is more accurately called “the original document rule.” That rule, codified in Fed. R. Evid. 1002, provides that “[a]n original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.”

Chavez holds that the prosecution may not introduce an English-language transcript purporting to translate a foreign-language audio recording without also introducing the audio recording itself. And while that is straightforward enough, Chavez goes on to call into question a lot of problematic things that prosecutors sometimes do with transcripts of our clients’ alleged calls and conversations. For appellate lawyers, it also has interesting things to say about harmless-error review. Read on for an explanation of Chavez’s holding, along with takeaways for both trial and appellate lawyers.

Background

Randolfo Chavez was indicted for distributing methamphetamine. The prosecution’s case included three conversations that Mr. Chavez allegedly had with government cooperators, including conversations during two (alleged) controlled buys. The three conversations – which were mostly, but not entirely, in Spanish –  were recorded.

At trial, the prosecution offered into evidence what purported to be transcripts of the recordings, with Spanish and English versions side-by-side. The prosecution did not offer the recordings themselves. Defense counsel objected to the transcripts based on the best evidence rule, insisting that the recordings themselves needed to be offered into evidence. The district court overruled the objection, leaving the jury to rely on the transcripts without the underlying recording.

Chavez appealed, arguing the transcripts were inadmissible under Fed. R. Evid. 1002.

The Tenth Circuit’s Holding

A divided panel agreed with Mr. Chavez and reversed his convictions.

Judge Holmes’s opinion for the Court, joined by Judge Seymour, is characteristically comprehensive. It canvasses the history, purpose, and scope of the best evidence rule, and the opinion could be a good resource for those who need to brush up on the rule and how it is applied in the Tenth Circuit.

Ultimately, the majority opinion reasons:

  1. Under Rule 1002, “evidence offered to prove the contents of an original writing, recording, or photograph is not admissible, unless the original itself is also admitted.” Maj. Op. at 30.
  2. The bar on “secondary evidence of an original’s contents unless the original is in evidence . . . is absolute,” save for certain explicitly stated exceptions. Id. at 32.
  3. The list of exceptions does not include any exception for foreign-language recordings.” Id. at 32-33.
  4. Consequently, “under the plain meaning of Rule 1002, the best-evidence rule does not permit courts to admit English-translation transcripts of foreign-language recordings when the recordings themselves are not also in evidence.” Id. at 33.
  5. The prosecution “sought to prove the contents of the recordings” when it “sought to prove the words purportedly spoken by Mr. Chavez and others,” but it failed to introduce the recordings themselves. Id. at 44.
  6. Therefore, “[t]he district court’s decision to admit the transcripts [of the recordings] . . . plainly flies in the face of the best-evidence rule and was an abuse of the court’s discretion.” Id. at 46.

Although the majority opinion’s reasoning is largely formalistic, it is informed by the concerns underlying Rule 1002. The best evidence rule requires an original to ensure reliability and to guard against the “human error or outright fraud” that secondary evidence of an available original’s contents may involve. Id. at 30-32. And in Mr. Chavez’s case, there were grave concerns about the accuracy of the Government’s transcripts. Id. at 10-18, 62-64.

For example, the side-by-side Spanish-and-English transcript lists the following as equivalent phrases:

Spanish – “Ponte las pinches pilas (unintelligible) . . . .”

English – “I’m like the boss. I’m your boss. I can get you anything you want. I got everything for the next load. It’s for us. Keep doing a good job and instead of Mckleen I’ll be hooking you up.”

“It is unclear,” the Court says, “how four Spanish words plus and ‘unintelligible’ word or phrase translate into thirty-eight intelligible words in English.” Id. at 15-16.

In another example, the transcript lists the following as Spanish-to-English equivalents:

Spanish – “Tenemos que pagarle al otro way . . .

English – “Fucking 19 grams, We have to pay the other guy. Is this your number?”

Id. at 63-64.

The Court cites numerous other inexplicable discrepancies.

The Court’s opinion goes on to reject the Government’s argument that introducing the recordings was not required. The Government had posited that the fact that the recordings were in Spanish altered the analysis because “recordings in a language that jurors do not understand is not the best evidence” of what was said. Id. at 46-47 (quotation marks omitted). Rather, said the Government “the ‘best evidence’ was the translated transcripts.” Id. at 47. The Court explained that this “evince[d] a fundamental misunderstanding of the legal import of the best-evidence rule.” Id. “Despite its somewhat misleading name, the best-evidence rule’s concern is not with the admission of the best evidence in a qualitative sense.” Id. at 48.

Accordingly, the majority opinion squarely holds that courts must admit the original audio of a recording in a foreign language if it is to admit a translated transcript of such a recording.

Or does it…?

Judge Hartz’s Dissent

Judge Hartz dissented, maintaining that “[t]he sin of the trial judge was to use his common sense.” Dissenting Op. at 1. The dissent maintains that (for reasons explored below) trial courts can still admit translated transcripts without also admitting the foreign-language recording itself, based on the dissent’s theory, notwithstanding the majority opinion. Id. at 6.

Judge Hartz’s merits analysis proceeds as follows:

  1. Rule 1002 requires that the original of a writing, recording, or photograph be admitted “‘unless these rules or a federal statute provides otherwise.” Id. at 9.
  2. Rule 703 allows for the admission of expert opinion testimony without the information underlying the expert opinion testimony also being admitted. Id. at 7.
  3. Consequently, expert testimony opinion addressing the contents of a writing, recording, or photograph need not be accompanied by the original of the writing, recording, or photograph, because “Rule 703 provides otherwise.” Id. at 9.
  4. A translation of a foreign-language recording is tantamount to expert opinion testimony. Id. at 6-7.
  5. Therefore, a transcript translating a foreign-language recording may be admitted even if the recording itself is not admitted. Id. at 9-10.

Although Judge Hartz acknowledges that there may be good reasons for admitting the recording itself in a particular case, id. at 18, he maintains that trial courts should have the discretion to exclude a foreign-language recording under Rule 402 or Rule 403 on the ground that it is irrelevant; would waste time; or would confuse or mislead the jury, id. at 10.

Why does Judge Hartz think that trial courts can follow this path despite the majority’s holding? The reason is that the majority opinion, in a footnote spanning three pages, explicitly declines to “engage with the merits of the Dissent’s arguments” on the ground that the Government never argued for anything like the dissent’s theory for admitting the transcripts without the recordings. Maj. Op. at 50-52 n.17. Therefore, Judge Hartz maintains, “trial courts in this circuit . . . are free to adopt [his rationale] if they find it persuasive.” Dissenting Op. at 6. Based on the majority opinion’s holding that exceptions to Rule 1002 are strictly limited, it is questionable whether a future panel of the Tenth Circuit would agree with Judge Hartz that his approach remains viable.

TAKEAWAYS

For Trial Lawyers: Challenging Problematic Transcripts and Other Nuggets

More than the Chavez’s holding regarding the best evidence rule, it’s criticisms of the transcripts the prosecution used in this case are likely to have broad applicability for trial lawyers dealing with such transcripts – even when the prosecution introduces the original.

The majority opinion deems the following aspects of the prosecution’s transcripts “problematic and potentially misleading.” Maj. Op. at 56-59, 61-64 (emphasis added).

  • That the transcripts purported to identify Mr. Chavez as a participant in the conversations, improperly treating Mr. Chavez’s participation “as an established (even stipulated) fact.”
  • That the transcripts identified themselves as transcripts of “controlled buys” of methamphetamine, which was improper “editorial commentary . . . not subject to cross-examination.”
  • That the transcripts purported to attribute incriminating statements to Mr. Chavez.
  • That the transcripts “offer[ed] no indication of who created them, when or how the respective transcribers did so, how much time elapsed between the making of each successive statement within the three transcripts, and whether these exhibits reflect a complete transcription of the underlying recordings,” all of which “make their integrity and soundness questionable.”

The Court was sharply critical of these features of the transcripts, and this section of the opinion provides strong grounds for precluding prosecutors from introducing transcripts with such features under Rule 403, under the hearsay rule, under the Confrontation Clause, or for lack of foundation.

Judge Hartz’s dissent suggests another trial-practice tactic. In a point not addressed by the majority opinion, and for reasons we won’t go into here, Judge Hartz argues at length that it is improper for trial judges to declare in front of a jury that a witness is qualified to give expert testimony. Dissenting Op. at 31-35. He provides extensive persuasive authority for the point. And he states that, although the Tenth Circuit “has not prohibited trial judges from declaring in open court that a witness is an expert,” “perhaps we should.” Id. at 35.

Even if telling the jury that a witness is an expert would not be reversible error, Judge Hartz’s opinion is a good resource for arguments that a trial court should refrain from doing so as a matter of discretion.

For Appellate Lawyers: Rebutting Harmless-error Arguments  

Several aspects of the majority’s harmless-error analysis (it finds the error not harmless) should be useful in other appeals:

  • The majority emphatically distinguishes harmless-error analysis from sufficiency-of-the-evidence analysis and emphasizes that the credibility of witnesses is up for grabs when harmless error, rather than sufficiency, is at issue. Maj. Op. at 69-71.
  • It analyzes prejudice by assuming that neither the transcripts nor the underlying recordings would have been admitted, rather than assuming that both the transcripts and the underlying recordings would have been admitted. Id. at 65.
  • It posits that, in assessing harmless error, it is appropriate to think about “the evidence that [the prosecution] did not produce” – in this case, evidence like photographs of Mr. Chavez participating in the controlled buys. Id. at 66-69.
  • It says that a prosecution case is “not strong” when it rests primarily on the testimony of government cooperators who expected benefits. Id. at 66, 69-70.

News You Can Use: Tenth Circuit Reverses First Degree Murder Conviction (and reaffirms important principles of appellate law along the way)

The Tenth Circuit reversed appellant Brian Tony’s first-degree murder conviction this week and remanded the case for a new trial.  Not only is this an amazing defense victory with an incredible remedy (kudos to AFPD Josh Lee in Denver), but the relatively short appellate decision is packed with important information, particularly for appellate lawyers. This decision also should send a clear message to trial courts: take extra care before excluding defense evidence.

FACTS: Mr. Tony’s defense at trial was that he acted in self-defense or at least without premeditation.  It was a plausible defense because the killing occurred during a knock-down, drag-out fight.  In support of this defense, Mr. Tony wanted to put on evidence that the decedent was high on methamphetamine at the time of the killing.  His theory of relevance was straightforward: meth makes people behave erratically- they can become crazy and violent- which supported the notion that the decedent was the first aggressor.  The trial judge, however, excluded the methamphetamine evidence on the ground that the defense had not proffered a proper, non-propensity purpose under Federal Rule 404(b).

HOLDING: The judge erred in excluding the defense evidence because defense counsel had proffered a proper purpose. But there are lots of other interesting points of law involving appellate procedure that the Tenth Circuit discusses in reaching its holding.

KEY TAKEAWAYS

Use this case if you are looking for law on the scope of permissible affirmance on alternative grounds

The government asked the court of appeals to affirm the conviction on the alternative ground that the meth evidence wasn’t relevant without expert testimony that (1) the decedent was actually high at the time of the fight and (2) meth makes people violent.  The defense responded with a legal argument: because any decision on evidentiary relevance is committed to the district court’s (not the appellate court’s) discretion, the Tenth Circuit could affirm on that ground only if it would be an abuse of the district court’s discretion to rule for the defense on the relevance issue.  This principle has long existed in the Tenth Circuit’s case law, but it was buried by dozens of cases that ignored it and affirmed evidentiary rulings on alternative grounds with no discussion of the discretionary nature of the decision.  This principle is now revived.

Use this case if you are looking to police the government’s burden of proof on harmless error

The government argued that excluding the meth evidence was harmless because the evidence at trial overwhelmingly established Mr. Tony had not acted in self-defense. On this point, the court first clarified that the government bears the burden of demonstrating that a preserved, non-constitutional error is harmless.  While the government had argued that the error was harmless with respect to self-defense, it had not argued that it was harmless with respect to the lack of premeditation.  The government’s failure to make this argument operated as a waiver.  This too is an important point of law – that the government waives harmless error by not arguing it.

Use this case if you are looking for law on why a new trial is the appropriate remedy for evidentiary error

The government argued that instead of remanding for a new trial, the circuit should have remanded the case to the district court to make findings on whether it would have excluded the meth evidence under Rule 403 as substantially more prejudicial than probative.  The court said no for two reasons.  The first was the trial had happened two years earlier, which would make it hard for the district court to put itself back in the position of making pretrial rulings.  The second reason was that remanding for findings would give the district court, eager to avoid a retrial, “an overwhelming temptation to rationalize the exclusion of the meth evidence under Rule 403.”  Op. at 11.  This is another principle that existed but was moribund in the circuit’s case law until this case reaffirmed it.