1.
[Separately copyrighted material -- see casebook.]
2. In
United States v. Workinger, 90 F.3d 1409 (1996), the Ninth
Circuit affirmed the defendant's conviction for tax evasion, and
rejected his hearsay, authentication and best evidence objections to a
transcript of a sworn statement he had given years earlier to his
former wife's attorney. "Although no court reporter was present,
Workinger affirmed that he would tell the truth and the conversation
was tape-recorded." The attorney, apparently following his standard
practice, erased the tape after having it transcribed. The government
called the secretary who transcribed the tape; she testified that she
had listened to it "over and over" to make sure the transcript was
accurate. The government also called the lawyer who took the
statement; he testified that "to the best of his recollection" the
transcript accurately reflected what the defendant had said.
All
members of the appellate panel agreed that the trial court was right
to admit the transcript, but they disagreed about why. Writing for
the majority, Judge Fernandez rejected the hearsay objection on the
ground that "Workinger's statements in the transcript were admissions
of a party-opponent," and therefore were not hearsay under Fed. R.
Evid. 801(d)(2)(a). He further reasoned that the testimony from the
attorney and the secretary "certainly met the minimum requirements for
authentication." But he found the best evidence rule applicable to
the case, because the content of the tape was at issue:
It
is true that, ultimately, the transcript of the tape was intended to
reflect the content of the conversation that took place. But, more
proximately, it was intended to reflect the content of the tape
itself. When Johnson's secretary was given the tape and told to
transcribe it, what she did was prepare a document which purported to
indicate what she heard on the tape. But if somebody wanted to know
the content of that tape, it itself was the best evidence of
that.
Nonetheless Judge Fernandez found the transcript admissible under Fed.
R. Evid. 1004(1), because the tape was unavailable through no fault of
the government.
Concurring separately, Judge Kozinski argued that the best evidence
rule was entirely inapplicable, because "the government did not seek,
by introducing the transcript, to prove the content of the tapes but
to prove what was said at the deposition itself." He explained:
The
transcript here was admissible not because it accurately reflected the
tape, but because . . . the attorney for the defendant's ex-wife,
testified that it accurately reflected the deposition. Without
this testimony from someone who was present, I'm not at all sure the
transcript would have been admissible since, as the majority notes,
the transcriber was not present when the testimony was given and thus
could not authenticate the transcript as an accurate reflection of
what was said at the deposition.
Who had the better of this argument?
________________________
