I need some input -- our police department wants to start scanning documents and destroying originals in order to manage their huge paper storage problem. I could not find anything on the forum discussing whether this practice would cause admissiblity problems with documents that have been "reconstituted" from electronic media. Any thoughts?
I have already indicated to the department that written confessions should probably not be destroyed, as they can be considered items of physical evidence, and not merely documents.
Best evidence rule.
RULE 1002. REQUIREMENT OF ORIGINALS
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required except as otherwise provided in these rules or by law.
RULE 1003. ADMISSIBILITY OF DUPLICATES
A duplicate is admissible to the same extent as an original unless (1) a 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.
With public records, it becomes even easier:
RULE 1005. PUBLIC RECORDS
The contents of an official record or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.
Local Government Code 205.002
Any local government record data may be stored electronically in addition to or instead of source documents in paper or other media, subject to the requirements of this chapter and rules adopted under it.
And, for more info, see The Texas State Library and Archives Commission site, especially:
RECORDS MANAGEMENT PUBLICATIONS FOR LOCAL GOVERNMENTS
http://www.tsl.state.tx.us/pubs/tslpublist.html (scroll down)
And talk to your judges -- do they have full membership in the electronic age or are they still hanging on to the paper way of doing things?
Confessions are items of physical evidence that happens to contain words. While I suppose the duplicate would be admissible under the Rules of Evidence, we all know that the original exhibit has more power than the duplicate in the courtroom.
And there are many other original documentary exhibits that serve as evidence (receipts, hot checks, etc.). As a prosecutor, I would rather have the original.
Might also be useful if you need to fingerprint the document or look at things like ink color. Could be challenges of forgery that could be resolved through the original.
So, I would advise the police to never destroy an original item of evidence without a court order and that scanning items of physical evidence is appropriate only after the case has been disposed.
Good luck on getting the original of the hot check these days. The banks would rather destroy the original and generate an "official copy". If merchants would just take the time to train their employees to not only check ID but to make notes and spend just a couple of bucks for a fingerprint pad it would be a slam-dunk on the identification issue. I'll get off the soapbox now.
You are right about the hot checks. And that serves as a good example of why the original can make a difference. What good does it do to ask the merchant to put a inked print on a check they aren't even going to keep?
Note that some confessions are governed by retention requirements in Article 38.22.
On the civil side, all ALR documents are scanned by DPS. I think that the original documents are then destroyed. My understanding is (from back in the old ALR days) that the scans are designed so they can't be tampered with by any party. When someone requests a certified copy, the custodian prints the scanned document and then certifies it. I had an ALR case in which a well-known DWI attorney objected on the grounds of best evidence, etc. I remember writing a trial brief (we won), but it's long gone now.
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