The CBS News documents, the "Best Evidence Rule," and other relevant legal evidentiary principles

Apologies in advance, gentle readers.  This is going to be hard slogging, despite my best efforts to make it otherwise.

I. Framing the issues

On NRO's The Corner, Byron York writes:

The major news in CBS anchorman Dan Rather's defense of the alleged Bush National Guard documents is the revelation that CBS News does not have the original documents purportedly written by Bush's commanding officer Lt. Col. Jerry B. Killian. Rather reported tonight that the network's document consultant "believes they are real, but is concerned about exactly what is being examined by some of the people now questioning the documents, because deterioration occurs each time a document is reproduced, and the documents being analyzed outside of CBS have been photocopied, faxed, scanned, and downloaded, and are far removed from the documents CBS started with, which were also photocopies." That last clause is critical. Document experts say it would be relatively easy to determine the authenticity of a typewritten original; a typewriter makes a small indentation into the paper with each strike, and those indentations can be studied in great detail. But a photocopy is another thing. There's no way to analyze the physical aspects of the typewritten words, nor is there a way to analyze the actual signature. In fact, an image of a legitimate signature could have been placed onto a computer-generated document and then printed out and photocopied. The news is that CBS based its report on photocopies, making it difficult to determine whether or not the documents are in fact authentic.

I mostly agree.  However, with due respect to Mr. York (who's been doing yeoman's service as a TV commentator, columnist, and investigative journalist!), I for one never understood CBS News to claim that it had in its possession the "original documents."  I'm too foggy at the moment to hunt down a proper link, but my recollection is that CBS News has always claimed that it had photocopies of documents that it had obtained from its unnamed source.  I don't even recall an express representation by CBS News that its unnamed source had "original documents" bearing pen-and-ink signatures, but rather that its source had obtained photocopies from someone else — yet another, second-level unnamed source — who presumably (and it's an important presumption) has custody of the original "personal files" of Col. Killian.

I agree entirely — and I think everyone, including CBS News would agree — that without access to the original documents bearing the pen-and-ink signatures, no one can do a definitive analysis of the documents' authenticity.  One of the points CBS News' expert Mr. Matley makes in some of his written materials on the internet is that photocopies may suffice to disprove a document's authenticity in some circumstances, but they're far less effective in proving the document's authenticity.  It's CBS News' burden to prove these documents' authenticity if it wants the public to pay them any heed.

My lawyer readers will remember the evidentiary principle that corresponds here as the (poorly understood and widely misunderstood) "Best Evidence Rule."  One of the tips I remember receiving during my bar exam review course was that on any multiple choice question on the bar exam, a candidate is well advised to immediately eliminate any answer that relies upon either the "Best Evidence Rule" or the "Rule Against Perpetuities" because those are almost always red herring answers designed to play upon the candidate's fuzzy recollections and they're almost never the correct answer to any bar exam question.  Indeed, I can probably count on one hand the number of times I've seen a "Best Evidence Rule" objection sustained in court (and on one finger the times that the Rule Against Perpetuities has come up in my twenty-four years of practice).

Here's a decent, rough and ready, working definition of the "Best Evidence Rule":

best evidence rule definition – in evidence parlance, it is the rule by which an original writing must be offered as evidence unless it is unavailable, in which case other evidence, like copies, notes, or other testimony can be used.

Stop here, gentle readers, if you'd like.  This rough and ready version, applied here, tells CBS News — "If you want anyone to believe you, cough up all you got, buddy!"

II. Methods of authentication

But if you want to dig more deeply, the Federal Rules of Evidence are, unsurprisingly, more complex and more precise than the rough and ready version I've quoted above.  They prescribe a complex but actually quite elegant and logical dance — an evidentiary decision tree.  Beginning at the root of the tree, from Rule 901(a):

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

From the general to the specific, Rule 901(b) offers some pertinent nonexclusive "examples of [means for] authentication or identification conforming with the requirements of this rule":

(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.

(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.

(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.

(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances....

(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.

(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.

(9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.

These are all simply ways in which the proponent of a document may seek to have it authenticated and admitted into evidence — ways to demonstrate to the satisfaction of the judge that the document "is what its proponent claims."  In all the arguing that's been going on so far about the CBS News documents, we've all been intuitively using these same principles. 

For example, we've all been wondering about, and looking for, someone with personal knowledge.  Col. Killian's dead, though, and CBS News hasn't produced anyone else who can say, "Yes, I was there, I saw Col. Killian write that document, and it is what it purports to be." 

His wife or his son, or perhaps his colleagues, might properly be called upon to say, "I knew Col. Killian's handwriting, and that looks to me like his signature."  Or an expert like Mr. Matley might say, "Based on my expertise and a comparison of specimens of Col. Killian's signature on undisputed documents, my opinion is that this document bears his signature too."

Likewise, we've had people familiar with military documents from this period say, "Yup, this format and content, in these circumstances, do/do not look like what I'd expect to see."  We've had people who know about typewriters and computers say, "This does/doesn't look like something produced on a 1972-era typewriter."  That's not conclusive — none of these factors is absolutely conclusive, nor mutually exclusive — but each of them can count for something.

If there's authenticating evidence that would fit within any of the last three examples, we'd need to know more of the document's history and chain of custody.  If CBS News has such information, it's not yet disclosed it to the rest of us.

III. When can copies be used instead of originals anyway?

Moving to the next stage of the dance, or (mixing metaphors freely) higher up on the decision tree, Rule 1001's definitions also come into play:

For purposes of this article the following definitions are applicable:

(1) Writings and recordings. "Writings" and "recordings" consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation....

(3) Original. An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original".

(4) Duplicate. A "duplicate" is 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.

Now we begin to get to the nitty-gritty — the rules that must be satisfied if they apply.  First, there's Rule 1002:

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 Act of Congress.

And Rule 1003:

A duplicate 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 would be unfair to admit the duplicate in lieu of the original

Strictly speaking, Rule 1002 is the codification of the "Best Evidence Rule," but the exception in Rule 1003 is so commonly used in most situations — when there's no genuine dispute about a document's authenticity, nor about whether the original's contents are fairly represented by a photocopy — that the exception almost "swallows the rule" in regular courtroom practice.  This is why in real world courtrooms, lawyers who object based on the "Best Evidence Rule" inevitably draw a frown from the trial judge, followed by the question, "So what's your specific problem with this copy, counsellor?"  Indeed, as I wrote at the beginning of one of my posts yesterday, objections to the authenticity of documents are so rare in the real world of litigation that by standing order, you have to give your opponent and the court advance warning that you intend to make such an objection, or you'll be deemed to have waived it. 

Obviously, however, we're not in that run-of-the-mill situation now.  Serious quibbles — nay, serious quarrels — have been raised as to the authenticity of the CBS News documents.  So on to the rules to see what we do next:

Rule 1004 tells us when, in general, copies are okay even without an original having first been produced for inspection and comparison against that copy:

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if —

(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or

(2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or

(3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or

(4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue.

Well, this is no collateral matter — this goes to the very heart of whether these documents say anything meaningful about Dubya's military service.  Nor does the third exception apply — that means we (the public) could insist on using the photocopies against CBS News if CBS News had been stonewalling on the originals.  But it's CBS News who's the proponent of this evidence, and it can't use its own stonewalling on the originals, if it has or can get them, as an excuse for using copies.  Finally, it's very likely that one of the first two exceptions might apply — again, we can't know whether either does, or which, unless and until we know what CBS News' source would tell us about where the originals are now or if originals even exist anymore.

IV. Why does the law bother with all this — and why should you or CBS News?

I bother to track through all this for a couple of reasons.  First, some of my readers might be genuinely curious about what would happen if CBS News tried to offer the documents in its possession into evidence in a hypothetical court proceeding.  Second, though, and more importantly, when you step back and look at this sequence, you see how important it becomes at every step of the way that when there's a dispute over authenticity, the proponent of the evidence — the party who's trying to use the document, who claims it really is what it purports to be — have cooperated fully in revealing the entire provenance of the document.  That includes its source, its chain of custody over time, the question of whether the copies are or aren't identical to the original, and so forth.

In the law of evidence, if you're holding out on this stuff, the judge is going to say that your documents are not good enough to be admitted into evidence.  They're entitled to zero weight and zero credibility.

And at last I come to my final point, patient readers.  These rules of evidence have evolved literally over centuries.  They've been developed by some of the smartest minds of many of an age who've devoted their thinking and writing to create the most reliable possible process to get at the truth.

Dan Rather is stonewalling.  But he nevertheless wants you do believe his documents are truthful, that the story they tell is credible, and that you should vote against a sitting President on the basis of them.  He's flouting the rules, and he expects to get away with it because ... well, because he's Dan-Frickin'-Rather and you're supposed to think what he and CBS News tell you to think.  Here's the incredibly arrogant note upon which Mr. Rather ended his broadcast tonight (boldface mine):

The "60 Minutes" report was based not solely on the recovered documents, but on a preponderance of the evidence, including documents that were provided by what we consider to be solid sources, and interviews with former officials of the Texas National Guard.  If any definitive evidence to the contrary of our story is found, we will report it.  So far, there is none.

Got that?  There's no "definitive evidence to the contrary of [his] story" — and he's not going to let anyone else have access to the information that could produce that "evidence to the contrary."  CBS News has declared itself not only prosecutor, but judge and jury.

Is the public going to put up with that?  Is the rest of the press?  Will you?