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§ 910.02: Original of Surveillance Tape Required But if Destroyed without Bad Faith, Testimony of Contents Allowed, § 910.04(1) – “Unplayable” Tape Tantamount to Destroyed

State v. William Troy Ford, 2007 WI 138, affirming unpublished decision
For Ford: Ralph J. Sczygelski

Issue/Holding: A surveillance tape that became unplayable was “destroyed” within the meaning of § 910.04(1), and its contents could be testified to by pre-destruction viewers:

¶68 We are satisfied that where a tape is damaged and unplayable, the proponent of the evidence makes reasonable efforts to restore the tape to playability, and those reasonable efforts fail, the tape is destroyed within the meaning of § 910.04(1). We find persuasive the reasoning of a treatise on the federal counterpart of § 910.04(1):

“Destroyed” usually signifies that the item no longer exists. However, an item may be destroyed for purposes of this rule even if it is not completely obliterated. Writings become unreadable, recordings become inaudible, and photographs fade. In addition, the contents of such items can be intentionally and irreversibly altered. The best-evidence doctrine is all about proving the contents of such items. Thus, so long as the contents can no longer be discerned, it makes sense to conclude that the item is destroyed for purposes of Rule 1004(1) even if the medium on which those contents were recorded still exists. Similarly, partial destruction may be sufficient under Rule 1004(1) to permit the admission of secondary evidence concerning the portion destroyed.

Charles Alan Wright & Victor James Gold, 31 Fed. Prac. & Proc. Evid. § 8014 (2007).¶69 Thus, because the surveillance tape was destroyed, and Ford has made no argument that the State destroyed the tape in bad faith, [7] the testimony regarding the contents of the tape is admissible under § 910.04. We therefore determine that the circuit court appropriately exercised its discretion in admitting testimony regarding the contents of the tape.


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