Covers cases on best evidence rule—tape recording competent evidence where made from original wire recording

Walgren, Gordon L.

English

UW Law Digital Commons (University of Washington)

Washington Law Review Volume 31 Number 2 Washington Case Law - 1955 6-1-1956 Evidence Gordon L. Walgren Follow this and additional works at: https://digitalcommons.law.uw.edu/wlr  Part of the Evidence Commons Recommended Citation Gordon L. Walgren, Washington Case Law, Evidence, 31 Wash. L. Rev. & St. B.J. 145 (1956). Available at: https://digitalcommons.law.uw.edu/wlr/vol31/iss2/10 This Washington Case Law is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington Law Review by an authorized editor of UW Law Digital Commons. For more information, please contact cnyberg@uw.edu. IVASHINGTON CASE LAW-1955EVIDENCEBest Evidence Rule-Tape Recording Competent EvidenceWhere Made From Original Wire Recording. In a recent case' theWashington Supreme Court has held, for the first time apparently,that it is not error to overrule an objection of "not the best evidence"where a tape recording was offered into evidence at a time when theinaudible' wire recording from which it had been transcribed wasalready an exhibit. The court made an analogy to the factual situationof the introduction of a photographic positive print and the usual rulingthat the negative need not be produced.For the purpose of this note the opinions discussing the applicationof the "best evidence rule," where writings are not involved, maybe segregated into three problem areas-the first represented by theprincipal case. It should be pointed out that here the "original"evidence was already an exhibit, so the introduction of the transcrip-tion was primarily for convenience. Because of these facts, this is arather unusual situation for an application of the best evidence rule.It would seem that there really was no necessity for the analogy madeby the court which goes further than the facts of the case do.As Wigmore has pointed out, the best evidence rule generally appliesonly to writings,' and so in factual situations representing the secondproblem area, accurate reproductions of objects not writings shouldbe admissible without accounting for the original where it is unavail-able. The reasoning behind such a result seems to be that where itappears that secondary evidence is clearly equal in probative valueto primary proof and that fraud or imposition is not to be reasonablyfeared, the reason on which the best evidence rule rests ceases, and therule itself becomes inapplicable.4 Factually, the closest Washingtoncase to the principal decision is State v. Witzell,' where it was heldthat photographs of fingerprints found on a safe could be introducedover objections that the safe itself should be introduced. The courtsaid that objections to the photographs go to the weight and not tothe competency of their use as evidence.A third problem area is that of applying the best evidence ruleI State v. Lyskoski, 147 Wash. Dec. 89, 287 P.2d 114.'Actually, the wire recording could have been made audible to the members of thejury had they been furnished with earphones.3 WiG0RE ON EVmECE, Vol. 3, § 796.4 United States v. Manton, 107 F.2d 834 (2nd Cir. 1938), Spector v. United States,107 F.2d 834 (2nd Cir. 1938), cert. denied, 309 U.S. 664, 60 S.Ct. 590, 84 L. Ed.1012 (1939).5175 Wash. 146, 26 P.2d 1049 (1933).1956]WASHINGTON LAW REVIEWto inscribed chattels. The general policy here seems to be that thetrial court is allowed a broad discretion in questions of whether sec-ondary evidence concerning an inscribed chattel is to be admissible asopposed to a requirement of introduction of the inscribed chattelitself.' It has been suggested by at least one text writer than the trialcourt also be given this broad discretion in factual situations illustratingthe second problem area, e.g., where a party seeks to introduce asubsequent recording where the original recording has been lost ordestroyed.' One court has held directly contrary to such a suggestion.'It would seem that an analogy might well be made from the rulesapplied in the case of an inscribed chattel, to the situation in theLyskoski case.The Lyskoski case indicates an extension by the Washington courtof the rule regarding photographs to the situation of original and tran-scribed recordings. However, as pointed out above, this indicatedextension does not constitute a holding on the facts present in thecase. Though this is true, the result reached by the court is altogetherreasonable. It is suggested however, that the two tests set out inthe cases of problem area two be met before such a result is reached.That is:1. It should appear that the "secondary" evidence is clearly equalin probative value to the primary proof, and2. It should appear that fraud or imposition is not to be reasonablyfeared.GoRDON L. WALGRENINSURANCEInsurance-Effect of a Divorce Decree. In United Benefit LifeInsurance Co. v. Price' the Washington court kept alive one moreaspect of the unfortunate doctrine handed down originally in Occiden-tal Life Insurance Co. v. Powers.' The facts in the case were these:'6 See, e.g., State v. Lewark, 106 Kan. 184, 186 Pac. 1002 (1920) ; Mattson v. Minn.& N.W. R. Co., 98 Minn. 296, 108 N.W. 517 (1906).7 MCCORMICK ON EVIDENCE, p. 412, n.5 (1954 ed.).8 People v. King, 101 Cal. App. 2d 500, 225 P.2d 950 (1950). See criticism of thiscase in 64 HARv. L. REV. 1369.146 Wn.2d 587, 283 P.2d 119 (1955).2 192 Wash. 475, 74 P.2d 27 (1937). The errors inherent in this doctrine have notgone unnoticed by members of the Washington court. In Aetna Life Insurance Co. v.Brock, 41 Wn.2d 369, 249 P.2d 383 (1952), an eight man court was evenly divided onthe question of overruling it completely. See also the dissenting opinion of Mallery, J.,in Small v. Bartyzel, 27 Wn.2d 176, 177 P.2d 391 (1947).[SUMAIER

Evidence

https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=3165&amp;context=wlr

Evidence

Abstract

Similar works

Full text

Available Versions

UW Law Digital Commons (University of Washington)