How FRE 1002 Best Evidence Rule Applies in Counterfeiting Trials

How FRE 1002 Best Evidence Rule Applies in Counterfeiting Trials

The best evidence rule, also known as the original document rule, is an important concept in evidence law. It’s codified in the Federal Rules of Evidence (FRE) 1002, which states: “An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.”

This rule requires parties to present the original form of evidence, like an original contract or surveillance footage, when trying to prove the contents of that evidence. If the original isn’t available, a party must show a legitimate reason why the original is missing before secondary evidence, like a copy or testimony about the original, can be admitted.

The best evidence rule has special implications in federal counterfeiting trials. Counterfeiting cases inherently deal with copies – the prosecution must prove that the defendant made, dealt, or passed copies of legitimate currency, financial instruments, or identification documents. So how does FRE 1002 apply when the “original” evidence is contraband?

Why the Best Evidence Rule Exists

The main purpose of the best evidence rule is to minimize inaccuracies and fraud. Originals are considered more reliable and accurate than secondary reproductions or testimony. This reduces the chance of misleading the jury with copied, distorted, or fabricated evidence.

For example, a blurred photocopy of a contract could misrepresent its terms. And testimony recalling the contents of a surveillance video may be unintentionally selective or inaccurate. Requiring original documents whenever possible safeguards the integrity of evidence presented at trial.

How FRE 1002 Applies in Counterfeiting Cases

In counterfeiting prosecutions, the “original” evidence is contraband – fake bills, forged IDs, counterfeit checks, etc. The government obviously cannot submit actual counterfeit currency or documents as trial evidence. So how can they prove the contents of the fraudulent items without running afoul of FRE 1002?

In most cases, the government is permitted to use detailed photographic reproductions of the counterfeit items instead of the originals. This is allowed under FRE 1003, which provides an exception to the best evidence rule for duplicates. The prosecution must authenticate the photographic copies and confirm that they accurately represent the original counterfeit evidence.

This avoids the need for the government to retain and submit actual counterfeit bills, credit cards, passports, etc. as evidence. Exceptions may also be made when the originals were destroyed as contraband following seizure, or if submitting them could compromise ongoing investigations. But the duplicates must still be authenticated as true and accurate representations.

Example Cases

Here are some examples of how courts have applied the best evidence rule in counterfeiting prosecutions:

• In U.S. v. Yamin, the Seventh Circuit upheld the admission of photographic duplicates of counterfeit currency, finding they were properly authenticated by a Secret Service agent’s testimony.
• In U.S. v. Caldwell, the Sixth Circuit ruled that government agents could testify about the contents of counterfeit bills that were destroyed after seizure, satisfying FRE 1004’s “original lost or destroyed” exception.
• In U.S. v. Savage, the Ninth Circuit admitted scanned reproductions of forged immigration documents, citing the “contraband” exception to the best evidence rule under FRE 1004.

So while the original counterfeit items themselves cannot be submitted, the government can generally use authenticated photographic or scanned duplicates as substitute evidence.

Why Photographic Copies Are Sufficient

There are several reasons why photographic reproductions of counterfeit documents and currency are considered reliable enough to satisfy the policies behind the best evidence rule:

• Modern imaging technology can produce highly detailed duplicates that effectively replicate the original item.
• Photographs permanently capture the state of the evidence at the time of seizure, before any alterations can occur.
• Special agents are trained to meticulously photograph counterfeit evidence according to strict protocols.
• Experts can examine the duplicates to opine on their accuracy and reliability.

Given these factors, photographic copies provide the court with very accurate representations of the original counterfeit articles. This reduces the risks of inaccuracy or fraud that the best evidence rule aims to avoid.

Defendant’s Evidentiary Arguments

Defendants in counterfeiting cases will often raise challenges against the admission of photographic evidence under the best evidence rule. Here are some key arguments defendants may assert, and how prosecutors can rebut them:

• Argument: The government should have retained some original counterfeit samples as evidence.
  Rebuttal: Agents are not required to retain contraband evidence that is illegal to possess. Photographs are reliable substitutes.
• Argument: The photographic duplicates are incomplete and don’t show the entire counterfeit document.
  Rebuttal: The key portions are visible and identifiable. Minor omissions don’t make them inaccurate.
• Argument: The duplicates don’t show important security features of the counterfeit items.
  Rebuttal: The lack of security features is often proof of counterfeiting. And witnesses can testify about their examination.
• Argument: The government could have used other reproduction methods like photocopies.
  Rebuttal: Photographs better capture the original quality, color, and texture of counterfeit items.

While defendants may nitpick the photographic duplicates, prosecutors can offer strong rebuttals to get this critical evidence admitted.

When Original Counterfeits Are Admitted

In rare cases, courts have permitted the admission of some original counterfeit articles as evidence. But this is only done sparingly, when duplicates are insufficient and the court can implement protections.

For example, in U.S. v. Irvin, the court allowed actual counterfeit bills to be admitted because unique handwritten notes on them were not reproduced in copies. But the jury was only permitted to inspect the bills briefly under supervision. The bills were marked as evidence and stored securely.

Submitting original counterfeits always raises chain of custody concerns. But when genuine evidentiary need arises, courts can take precautions to allow it under limited circumstances.

Presenting Expert Witness Testimony

Along with photographic duplicates, prosecutors commonly have expert witnesses examine the copies and testify about the counterfeit nature of the items depicted. Handwriting analysts, currency specialists, and forensic document examiners can all provide opinions comparing the duplicates to genuine articles.

Expert testimony is essential because most jurors lack the specialized knowledge needed to identify credible counterfeits. Experts can point out flaws and confirm that items in the photographs lack authentic security features found on genuine documents or currency.

This expert opinion evidence bolsters the reliability of the photographic duplicates. It also provides crucial context for interpreting the visual evidence presented.

Defense Strategies and Tactics

Given the widespread admissibility of photographic evidence, the defense in counterfeiting cases will often focus on attacking procedural gaps in the government’s case rather than the duplicates themselves. Common tactics include:

• Raising doubt about the chain of custody – arguing that security lapses leave room for evidence tampering or switching.
• Contesting the qualifications of the expert witness – seeking to exclude or undermine their testimony.
• Disputing the scope of the defendant’s involvement – claiming they didn’t produce the counterfeits or only dealt in small amounts.
• Arguing entrapment – asserting that the government induced the defendant to commit counterfeiting.

Since excluding the photographic proof entirely is difficult, the defense will try to minimize its impact by probing for investigative errors and contesting the context around the counterfeiting charges.

Why the Best Evidence Rule Matters

While it requires some flexibility in counterfeiting cases, the best evidence rule serves an important purpose. It pushes the prosecution to present the most accurate, reliable representations of the fraudulent items at issue. This preserves the integrity of evidence submitted to the jury.

The use of properly authenticated photographic duplicates, supported by expert testimony, allows the rule’s core principles to be upheld. At the same time, it enables law enforcement to combat counterfeiting without retaining contraband materials.

The best evidence rule ensures fairness for all parties in our adversarial system. And it promotes justice by requiring that only the most genuine evidence available be used to determine guilt or innocence, liberty or incarceration.