Could a South Carolina court admit a DVD copy after an undercover camera's original file was erased?

Plain-English summary

An investigator described surveillance video made on a miniature digital recorder. The recording was copied from a micro-drive card to a DVD for court presentation, and the card was erased for reuse. In 2006, the Attorney General said the DVD could be admitted to the same extent as the original, subject to the evidence rules and the trial judge's decision in the particular case.

The opinion began with the best-evidence rule's preference for an original, then explained two exceptions. Rule 1003 permitted a duplicate unless a genuine question arose about the original's authenticity or admitting the copy would be unfair. Rule 1004 addressed situations in which an original was lost or destroyed or otherwise unavailable. The AG said the copied recording could qualify under the duplicate rule if its conditions were met; erasure of the card did not by itself settle admissibility either way.

The opinion drew on a federal digital-recording case in which the duplicate was admitted because the record showed no evidence of alteration or resulting unfairness. It stressed that the South Carolina trial court would decide authenticity and fairness case by case, rather than approving every recording produced by this device.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did deleting the micro-drive original automatically make the DVD inadmissible? A: No. The AG said a duplicate could be admitted under Rule 1003 if authenticity and fairness conditions were satisfied.

Q: What could keep the DVD out under the duplicate rule? A: A genuine question about authenticity of the original or unfairness from using the duplicate instead of the original.

Q: Did the AG decide that this particular DVD was admissible at trial? A: No. It said admissibility depended on the case's evidence and was for the trial judge to determine.

Background and statutory framework

The request described undercover footage copied to DVD before the original card was erased. The opinion compared the original-recording rule in Rule 1002, SCRE with the duplicate rule in Rule 1003 and the unavailable-original rule in Rule 1004. It treated the admission of a properly authenticated recording as a matter for the trial court's discretion.

Citations and references

The opinion quotes the South Carolina Rules of Evidence on originals and duplicates, especially Rules 1002, 1003, and 1004. It discusses federal cases involving digital recordings and challenges to copies.

Official title

Questioning the admissibility in court of surveillance or undercover evidence obtained using a STING miniature digital recorder.

Requester

Robert E. Saverance, Investigator, Office of the Solicitor, Twelfth Judicial Circuit

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-6-2006-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/mar6-06-Saverance.pdf

Original opinion text

HE!'IRY M CM ASTER
AITORNEY G E.NERAL

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March 6, 2006

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Robert E. Saverance, Investigator
Office of the Solicitor, Twelfth Judicial Circuit
City-County Complex, Room 110 l
180 North Irby Street, MSC-Q
Florence, South Carolina 29501
Dear Mr. Saverance:

In a letter to this office you questioned the admissibility in court of surveillance or undercover evidence ob~ined using a STING miniature digital recorder. According to your letter, video imagery is initially captured on a micro-drive card which is then downloaded to a DVD for court presentation. The micro-drive is then erased for reuse. Generally, the admission of a tape recording rests in the sound discretion of the trial judge. State v. Tyner, 273 S.C. 646, 258 S.E.2d 559 (1979). In State v. Worthy, 239 S.C. 449, 123 S.E.2d 835, 841 (1962), overruled on other grounds, Statev. Torrence, 305 S.C. 45,406 S.E.2d 315 (1991), the State Supreme Court indicated that "(i)t has almost uniformly been held that evidence offered in the form of a sound recording is not inadmissible because of that form if properly authenticated.

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The South Carolina Rules of Evidence in Rule I002, SCRE, the "best evidence rule", states that

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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 statute. Rule l 003 , SCRE, allows, however, for the admissibility of a dupl icate stating that

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Mr. Saverance
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March 6, 2006

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A duplicate 1 is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it 2 would be unfair to admit the duplicate in lieu of the original.

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Also, Rule 1004, SCRE does not require the introduction of an original where the originals are lost or destroyed, the original is not obtainable, the original is in the possession of an opponent, or where the copy is not closely related to a controlling issue. Therefore, Rules 1003 and 1004 provide exceptions to the general rule of Rule 1002 which requires an original. If a proponent of a duplicate recording can establish that proffered evidence falls within either of the exceptions, a duplicate can be admitted regardless of the general rule. Ballard v. State of Texas, 23 S.W.3d 178 (Tx. Ct. App. 2000). In the circumstances described by you, the original recording on the miniature digital recorder is not preserved but instead is downloaded to a DVD for use at trial and then erased. Consistent with Rule 1003, SCRE, the duplicate recording on DVD would be admissible to the same extent as the original unless "a genuine question is raised as to the authenticity of the original or in the circumstances it would be unfair to admit the duplicate in lieu of the original." A party seeking to exclude a duplicate recording pursuant to Rule 1003 would have the burden of showing that the duplicate should not be introduced. National City Bank v. Fleming, 440 N.E.2d 590 (Ohio, 1981); United States v. Georgalis, 631 F.2d 1199 (5th Cir. 1980). In United States v. Stewart, 420 F .3d 1007 (9th Cir. 2005) there was alleged error in the trial court's admitting a recording between the defendant and another individual and permitting the Government to play the recording for the jury. The recording resulted from the use of a digital recording device such as suggested by you where the data was then downloaded to a disk and offered as a duplicate recording at trial. In its decision the Ninth Circuit Court of Appeals determined that the lower court did not abuse its discretion in admitting the recording inasmuch as " ... the record shows no evidence presenting a 'genuine question' the duplicate recording was altered or otherwise tainted, and ... (the defendant) ... did not show any resulting unfairness from admission of the duplicate." 420 F.3d 1021 fu.13. See also: United States v. Capanelli, 257 F.Supp.2d 678, 681 (S.D.N.Y., 2003) (as to the use of a recording made from a digital recording device where the

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The term "duplicate" is defined by Rule 1001(4), SCRE, as " ... a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original. 2

As explained in the notes to such Rule,
This rule is identical to the federal rule. There is no case law in this State on the admissibility of a duplicate in this context, only on the admissibility of a duplicate as secondary evidence.

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Mr. Saverance
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March 6, 2006

contents are transferred to another form the Court stated that "(n)otwithstanding the conceded destruction of the digital chip originals, the recordings produced from them are duplicates and admissible under the protocol established by Rules I 001-1003. Any potential problems inherent in the software-assisted reproduction of the recordings may be fully explored by a defense expert witness, with the jury then asked to reject the recordings as technically unreliable."). The issue of whether the conditions for admissibility are met is determined by the trial court on a case-by-case basis. 6 Weinstein's Federal Evidence 2nct Ed. § 1003.02[1]. It is generally stated that (o)nce authenticity and fairness issues are resolved ... duplicates and originals are generally interchangeable for evidentiary purposes. For example, a duplicate is admissible when the opposing party concedes its accuracy. Even when accuracy is not conceded, courts routinely accept duplicates as a convenience to the court and the parties unless there are persuasive reasons for rejecting the evidence. Thus, if there is no reason to believe that the duplicate is inaccurate or that a party is attempting to commit a fraud on the court, for example, by altering the proffered evidence, the duplicate will be admitted. Ibid.

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Consistent with the above, in my opinion, a recording resulting from the use of a STING miniature digital recorder in the manner described by you could be admissible in court assuming the requirements of Rule I 003, SCRE are met. As referenced, the duplicate recording on DVD would be admissible to the same extent as the original except in circumstances where "a genuine question is raised as to the authenticity of the original or in the circumstances it would be unfair to admit the duplicate in lieu of the original." With kind regards, I am,

Charles H. Richardson
Senior Assistant Attorney General
REVIEWED AND APPROVED BY:

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Robert D. Cook
Assistant Deputy Attorney General