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Evidence – Recording – Best Evidence Rule

State v. John D. Harris, 2009AP3140-CR, District 1, 8/17/10

court of appeals decision (1-judge, not for publication); for Harris: Byron C. Lichstein; BiC; Resp.; Reply

Testimony of an investigator relating the contents of a recording wasn’t inadmissible under the best evidence rule, § 910.02.

¶11 Although the best evidence rule generally requires an original recording to be played in court in order to prove the content of the recording, Wis. Stat. § 910.06 allows the contents of voluminous recordings that cannot be conveniently examined in court to be presented in the form of a summary. The narrow issue here is whether the recorded phone calls between Harris and Susan M. are “voluminous” within the meaning of § 910.06. This court agrees with the State and concludes that Investigator Buschmann’s testimony regarding the recorded conversations between Harris and Susan M. was properly admitted because the multiple recorded phone calls satisfy the requirements for voluminous recordings pursuant to § 910.06. Furthermore, the trial court’s failure to articulate § 910.06 as its reason for admitting Investigator Buschmann’s testimony does not prevent this court from affirming the trial court’s discretionary decision. See Clark, 179 Wis. 2d at 490 (“Where the trial court fails to adequately explain the reasons for its decision, we will independently review the record to determine whether it provides a reasonable basis for the trial court’s discretionary ruling.”).

The court stresses that the recorded calls were turned over to the defense ahead of trial: “the purpose of the best evidence rule is to prevent fraud on the trier of fact by denying it the ability to examine an original document.” Harris “was free to play the recordings for the jury,” ¶13.

Evidence – Chain of Custody

¶20 The law respecting chain of custody requires proof that is sufficient “to render it improbable that the original item has been exchanged, contaminated or tampered with.” B.A.C. v. T.L.G., 135 Wis. 2d 280, 290, 400 N.W.2d 48 (Ct. App. 1986). Wisconsin Stat. § 909.01 states that the requirements for authentication or identification are satisfied “by evidence sufficient to support a finding that the matter in question is what its proponent claims.” “Alleged gaps in a chain of custody ‘go to the weight of the evidence rather than its admissibility.’” State v. McCoy, 2007 WI App 15, ¶9, 298 Wis. 2d 523, 728 N.W.2d 54 (citation omitted). “The degree of proof necessary to establish a chain of custody is a matter within the trial court’s discretion.” B.A.C., 135 Wis. 2d at 290.

¶21 This court agrees that the trial court did not err when it found that the State met the chain of custody requirements concerning the admissibility of the letter Harris allegedly wrote to Susan M. While there were some gaps in the chain of custody, the trial court properly admitted the letter into evidence, leaving any issues concerning the letter to go to the weight of the evidence and not its admissibility.

¶22 Given the facts, the testimony of Rindt and Investigator Buschmann provides sufficient proof that the letter had not been exchanged, contaminated, or tampered with. See B.A.C., 135 Wis. 2d at 290. By identifying the letter and envelope at trial and testifying that they were not altered in any way, Rindt provided “evidence sufficient to support a finding that the matter in question is what its proponent claims.” See Wis. Stat. § 909.01. Investigator Buschmann did the same by testifying that the letter in court was the same letter that he received from his partner. …

The court rejects Harris’s argument that chain of custody gaps are permissible only when the evidence is in law enforcement custody. Buschmann, a law enforcement investigator, obtained the letter from the addressee and and was able to testify to its condition; that, along with absence of any suggestion of tampering, was enough. “The necessary proof required for admission of the letter at trial was proof sufficient to support a finding that the letter was in fact what the State claimed it was, and a showing that it was improbable that the letter had been exchanged, contaminated, or tampered with,” ¶25.

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